Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 8 December 2010

 2                           [Appeals Judgement]

 3                           [Open Session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 3.40 p.m.

 6             JUDGE MERON:  Good afternoon.

 7             Registrar, will you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.

 9             This is Case IT-95-13/1-R.1, the Prosecutor versus Veselin

10     Sljivancanin.  Thank you, Your Honours.

11             JUDGE MERON:  Thank you.

12             Mr. Sljivancanin, can you clearly hear me and understand the

13     translation?

14             THE APPELLANT: [Interpretation] Good afternoon, Your Honours.

15     Good afternoon to everyone in the courtroom.

16             I can hear everything excellently, and I understand.

17             JUDGE MERON:  Thank you.  You may be seated.

18                           [The appellant sits down]

19             THE APPELLANT: [Interpretation] Thank you.

20             JUDGE MERON:  Appearances for the parties, first for the Defence

21     for Mr. Sljivancanin.

22             MR. LUKIC: [Interpretation] Good afternoon, Your Honours.  Good

23     afternoon to everyone in the courtroom.

24             Mr. Sljivancanin is represented today by Novak Lukic,

25     attorney-at-law from Belgrade.

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 1             JUDGE MERON:  Thank you.

 2             For the Prosecution.

 3             MS. BRADY:  Good afternoon, Your Honours.

 4             Helen Brady appearing on behalf of the Prosecution, together with

 5     Ms. Najwa Nabti and Mr. Kyle Wood.

 6             JUDGE MERON:  Thank you.

 7             As the Registrar announced, the case on our agenda today is the

 8     Prosecutor against Veselin Sljivancanin.  In accordance with the

 9     scheduling order issued on 1 December 2010, today the Appeals Chamber

10     will deliver its review judgement.  This oral summary does not constitute

11     any part of the official and authoritative judgement of the

12     Appeals Chamber, which is rendered in writing and will be distributed to

13     the parties at the close of the hearing.  In addition, not every point

14     addressed in the judgement will be mentioned in this summary, which

15     focuses only on central issues.

16             Briefly, the background of this case is as follows:

17             Veselin Sljivancanin was born on 13th June 1953 in Pavez, Zabljak

18     municipality, in present-day Montenegro.  In November 1991, he was a

19     major in the Yugoslav People's Army, or JNA.  He also held the post of

20     head of the security organ of both the Guards Motorised Brigade and

21     Operational Group South, the latter of which is commonly referred to as

22     "OG South."

23             On 27 September 2007, Trial Chamber II issued a judgement

24     addressing individual criminal responsibility for the torture and murder

25     of more than 190 prisoners removed from Vukovar Hospital and brought to

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 1     Ovcara.  More specifically, the Trial Chamber found that in the morning

 2     of 20 November 1991, these prisoners, almost all men, the vast majority

 3     of whom had been involved in the hostilities, were removed by JNA

 4     soldiers of OG South from Vukovar Hospital and brought, via the JNA

 5     barracks in Vukovar, to a hangar at Ovcara, near Vukovar, where they were

 6     severely mistreated.

 7             The Trial Chamber also found that Mile Mrksic, at the time a

 8     colonel in the JNA, appointed Mr. Sljivancanin to evacuate Vukovar

 9     Hospital and to be responsible for the transport and security of the

10     prisoners; that an order to withdraw the last remaining JNA troops

11     securing the prisoners was made by Mr. Mrksic in the early evening of 20

12     November 1991; and that this withdrawal was completed at no later than

13     9.00 p.m. that evening.  The Trial Chamber found that thereafter, in the

14     evening and night hours of 20/21 November 1991, prisoners were taken in

15     groups of some 10 to 20 from the hangar to a site located nearby where,

16     earlier that afternoon, a large hole had been dug.  There,

17     Territorial Defence and paramilitary soldiers of OG South executed at

18     least 194 of them.  The killings started after 9.00 p.m. and continued

19     until well after midnight.  The bodies were buried in the large hole, a

20     mass grave, and remained undiscovered until several years later.

21             The Trial Chamber concluded that Mr. Sljivancanin had failed to

22     protect the prisoners from mistreatment on 20 November 1991, prior to the

23     withdrawal of the JNA troops.  It thus found Mr. Sljivancanin guilty of

24     aiding and abetting torture as a violation of the laws or customs of war,

25     and sentenced him to five years' imprisonment.  The Trial Chamber did

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 1     not, however, enter a conviction against Mr. Sljivancanin in relation to

 2     the murder of the 194 prisoners.

 3             On 5 May 2009, the Appeals Chamber issued the Mrksic and

 4     Sljivancanin appeal judgement, which, inter alia, upheld

 5     Mr. Sljivancanin's conviction for aiding and abetting torture as a

 6     violation of the laws or customs of war, but found that his sentence of

 7     five years' imprisonment did not adequately reflect the level of gravity

 8     of the crimes committed.  The Appeals Chamber also entered an additional

 9     conviction, finding, Judges Pocar and Vaz dissenting, that

10     Mr. Sljivancanin aided and abetted the murder of 194 prisoners, as a

11     violation of the laws or customs of war.  On the basis of these findings,

12     the Appeals Chamber quashed Mr. Sljivancanin's original sentence of five

13     years' imprisonment and imposed, Judges Pocar and Vaz dissenting, a new

14     sentence of 17 years' imprisonment.

15             Underlying the additional conviction for murder was a new factual

16     finding relating to Mr. Sljivancanin's mens rea for aiding and abetting

17     murder.  Relying on circumstantial evidence, the Appeals Chamber

18     concluded that during a conversation between Sljivancanin and Mrksic in

19     the night of 20 November 1991, Mr. Mrksic must have told Mr. Sljivancanin

20     that he had withdrawn the JNA protection from the prisoners held at

21     Ovcara.  On the basis of this analysis, the Appeals Chamber concluded

22     that Mr. Sljivancanin possessed the mens rea for aiding and abetting

23     murder as a violation of the laws or customs of war.

24             On 28 January 2010, Mr. Sljivancanin filed an application for

25     review of the Mrksic and Sljivancanin appeal judgement.  In his

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 1     application, Mr. Sljivancanin asserted that Miodrag Panic, a

 2     lieutenant-colonel and chief of staff of the Guards Motorised Brigade and

 3     OG South, was prepared to offer testimony about the conversation which

 4     would exonerate Mr. Sljivancanin with respect to the additional

 5     conviction for murder.  Mr. Sljivancanin asserted that this testimony

 6     constituted a new fact, in the context of Article 26 of the Statute of

 7     the Tribunal and Rules 119 and 120 of the Rules of Procedure and Evidence

 8     of the Tribunal.  The application sought, inter alia, review of the

 9     Mrksic and Sljivancanin appeal judgement and the quashing of

10     Mr. Sljivancanin's additional conviction.

11             The Appeals Chamber, Judge Pocar dissenting, ordered an oral

12     hearing on 3 June 2010 to hear Mr. Panic's testimony.  At the

13     Pre-Review Hearing, Mr. Panic testified that on the night of 20 November

14     1991, he was in a position to follow the conversation and that Mr. Mrksic

15     did not inform Mr. Sljivancanin of the withdrawal order.

16             On 14 July 2010, the Appeals Chamber granted Mr. Sljivancanin's

17     request for a review hearing, explaining that the new information

18     provided by Mr. Panic concerning the conversation constituted a new fact

19     that, if proved, would lead to a miscarriage of justice by eliminating

20     the basis for the Mrksic and Sljivancanin appeal judgement's conclusion

21     that Mr. Sljivancanin possessed the mens rea for aiding and abetting

22     murder as a violation of the laws or customs of war.

23             On 12 October 2010, the Appeals Chamber convened a review hearing

24     at which Prosecution expert witness Reynaud Theunens gave testimony and

25     the parties made oral submissions.

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 1             The Appeals Chamber finds that Mr. Panic's testimony at the

 2     Pre-Review Hearing was credible with respect to both the conversation and

 3     his motives for coming forward to testify.  His descriptions of these two

 4     points was coherent and reasonably detailed, and his demeanour did not

 5     suggest that he was trying to conceal the truth.  In reaching this

 6     conclusion, the Appeals Chamber is mindful that even though the

 7     Prosecution has not presented evidence which directly contradicts

 8     Mr. Panic's account of the conversation, it has raised a number of

 9     contentions concerning Mr. Panic's general credibility that warrant

10     serious consideration.

11             The Prosecution's most direct challenge to Mr. Panic's testimony

12     concerning the conversation is its contention that Mr. Panic's testimony

13     at the Pre-Review Hearing contradicts certain of his prior statements.

14     The Appeals Chamber finds, however, that the statements referred to by

15     the Prosecution are either compatible with Mr. Panic's testimony at the

16     Pre-Review Hearing or that the differences can be explained by the

17     context in which Mr. Panic made them.  Similarly, minor inconsistencies

18     between Mr. Panic's testimony at the Pre-Review Hearing, the

19     Trial Chamber's findings, and Mr. Sljivancanin's testimony before the

20     Trial Chamber are not significant.

21             The Appeals Chamber considered with particular attention the

22     Prosecution's submission that Mr. Panic's testimony is tainted by a

23     self-interested desire to reduce the chances of being prosecuted for

24     crimes he may have personally committed.  However, the Appeals Chamber

25     discerns no additional substantive protection from criminal prosecution

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 1     that Mr. Panic could have anticipated gaining through his participation

 2     in these review proceedings.  The Appeals Chamber notes that as a former

 3     witness, Mr. Panic was doubtless aware that the Prosecution might seek to

 4     publicly highlight his own potential criminal liability during any review

 5     proceedings, potentially drawing the attention of prosecutors in national

 6     jurisdictions.  Had Mr. Panic been motivated by the desire to reduce his

 7     risk of criminal prosecution, as the Prosecution suggests, he would

 8     presumably not have contacted Mr. Sljivancanin's Defence team and offered

 9     to testify in the review proceedings.

10             The Appeals Chamber notes that in his testimony before the

11     Appeals Chamber, Mr. Panic has generally been reluctant to assign blame

12     for the crimes committed against the prisoners.  However, the

13     Appeals Chamber considers that the Prosecution's allegation that he is

14     biased are somewhat speculative.  Mr. Panic's testimony at the

15     Pre-Review Hearing did little to portray the JNA, its units, Mr. Mrksic,

16     Mr. Sljivancanin, or himself in a favourable light.

17             The Prosecution submits that aspects of Mr. Panic's testimony not

18     directly related to the conversation are implausible, especially with

19     respect to when he learned of the order to withdraw JNA troops, and that

20     this undermines his overall credibility.  In particular, the Prosecution

21     asserts that Mr. Panic's account of actions taken by officers of OG South

22     is at odds with the procedures and actions required by JNA doctrine.

23     However, the Appeals Chamber recalls the Trial Chamber's finding that the

24     facts of this case disclose frequent non-observance of normal JNA

25     procedures and standards, at all levels, affecting matters as varied as

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 1     the very establishment and structure of OG South to the observance of the

 2     chain of command.  In these circumstances, the variations between the

 3     actions Mr. Panic describes and those prescribed by JNA doctrine do not

 4     necessarily undermine Mr. Panic's credibility with respect to the

 5     conversation.

 6             The Prosecution also asserts that the contrast between the

 7     operational exigencies within OG South and Mr. Panic's testimony of his

 8     delayed discovery of the order to withdraw JNA troops, as well as the

 9     discrepancies between Mr. Panic's behaviour on 20 and 21 November 1991,

10     call Mr. Panic's overall credibility into question.  The Prosecution's

11     evidence raises significant questions about the veracity of Mr. Panic's

12     testimony regarding issues other than the conversation, such as his

13     actions on 21 November 1991; in context, it appears that some portions of

14     Mr. Panic's testimony, both during the review proceedings and before the

15     Trial Chamber, may have been influenced by Mr. Panic's desire to protect

16     himself from possible prosecution.

17             However, the Appeals Chamber recalls that no convincing motive

18     has been presented for Mr. Panic to volunteer false testimony concerning

19     the conversation.  Indeed, as the Appeals Chamber has previously noted,

20     it appears that Mr. Panic's decision to testify in the review proceedings

21     regarding the conversation quite possibly went against his personal

22     interest.  The Appeals Chamber further recalls its finding that

23     Mr. Panic's testimony regarding the conversation was coherent and that

24     Mr. Panic's demeanour did not suggest he was untruthful.  In this

25     context, the Appeals Chamber finds that Mr. Panic's credibility with

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 1     respect to the conversation is not undermined by the potential

 2     discrepancies in other parts of his evidence.

 3             For the foregoing reasons, the Appeals Chamber finds that

 4     Mr. Panic's testimony is credible with respect to the conversation, and

 5     thus that the new fact testified to by Mr. Panic has been proved.  The

 6     Appeals Chamber recalls its prior finding that the impact of the new fact

 7     alleged by Mr. Panic, if proved, is such that to ignore it would lead to

 8     a miscarriage of justice.  In this respect, the Appeals Chamber notes

 9     that the additional conviction for murder was premised on both a

10     delineation of Mr. Sljivancanin's duty to protect the prisoners and the

11     Appeals Chamber's finding that Mr. Sljivancanin possessed the mens rea to

12     aid and abet murder as a violation of the laws and customs of war.  The

13     Appeals Chamber further observes that its finding concerning

14     Mr. Sljivancanin's mens rea rested on the conclusion that the only

15     reasonable interpretation from the available circumstantial evidence was

16     that Mr. Mrksic informed Mr. Sljivancanin of the withdrawal order during

17     the conversation.  The new fact testified to by Mr. Panic renders this

18     latter inference untenable, and thus undermines the Mrksic and

19     Sljivancanin appeal judgement's finding that Mr. Sljivancanin was guilty

20     of aiding and abetting murder as a violation of the laws and customs of

21     war.  Accordingly, the Appeals Chamber vacates the additional conviction

22     for murder.

23             The Appeals Chamber recalls that in the Mrksic and Sljivancanin

24     appeal judgement, it found that the sentence of five years' imprisonment

25     for aiding and abetting torture imposed by the Trial Chamber did not

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 1     adequately reflect the level of gravity of the crimes committed by

 2     Mr. Sljivancanin.  The Appeals Chamber proceeded to quash

 3     Mr. Sljivancanin's original sentence of five years' imprisonment and

 4     imposed, Judges Pocar and Vaz dissenting, a new sentence of 17 years'

 5     imprisonment.  Because the Appeals Chamber has now vacated the additional

 6     conviction for murder, which constituted a partial basis for the increase

 7     in Mr. Sljivancanin's sentence, the Appeals Chamber must consider whether

 8     the sentence of 17 years' imprisonment should be revised.

 9             The Appeals Chamber considers that the reversal of the additional

10     conviction for murder represents a significant reduction in

11     Mr. Sljivancanin's culpability and calls for a revision in sentence.  The

12     Appeals Chamber notes, however, that Mr. Sljivancanin's mistreatment of

13     the prisoners was an extremely serious crime.

14             I will now read out in full the disposition of the

15     Appeals Chamber's review judgement.

16             Mr. Sljivancanin, will you please stand?

17                           [The appellant stands up]

18             JUDGE MERON:  For the foregoing reasons, the Appeals Chamber,

19     pursuant to Article 26 of the Statute and Rules 119 and 120 of the Rules;

20             Noting the respective written submissions of the parties and the

21     arguments they presented at the Review Hearing;

22             Sitting in open session;

23             Grants the remaining portions of the application;

24             Vacates Veselin Sljivancanin's conviction for aiding and abetting

25     the murder of 194 prisoners;

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 1             Squashes Veselin Sljivancanin's sentence of 17 years of

 2     imprisonment imposed by the Appeals Chamber, and imposes, Judge Pocar

 3     dissenting, a sentence of 10 years, subject to credit being given under

 4     Rule 101(C) of the Rules for the period already spent in detention; and

 5             Confirms that the Mrksic and Sljivancanin appeals judgement

 6     remains in force in all other respects.

 7             Judge Meron attaches a separate opinion.

 8             Judge Guney attaches a separate opinion.

 9             Judge Pocar attaches a partially dissenting opinion.

10             Mr. Sljivancanin, you may be seated.

11                           [The appellant sits down]

12             JUDGE MERON:  I now request the Registrar to please deliver

13     copies of the judgement to the parties in this case.

14             This hearing of the Appeals Chamber of the International Criminal

15     Tribunal for the former Yugoslavia is now concluded.

16                           --- Whereupon the Appeals Judgement

17                            concluded at 4.08 p.m.