1 Tuesday, 20 February 2001
2 [Judgement on Appeal]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.30 p.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: The Prosecutor versus Zejnil Delalic, Zdravko
8 Mucic, Hazim Delic, and Esad Landzo. Case number IT-96-21-A.
9 JUDGE HUNT: Appearances for the Prosecution.
10 MR. YAPA: May it please Your Honours. I appear for the
11 Prosecution. I am Upawansa Yapa. I appear for the Prosecution with
12 Mr. Norman Farrell, Ms. Sonja Boelaert-Suominen, and Mr. Roeland Bos.
13 JUDGE HUNT: Thank you.
14 For Mr. Delalic.
15 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman.
16 I appear on behalf of Mr. Zejnil Delalic, who is anxiously awaiting a
17 phone call from me in Konjic. Thank you.
18 JUDGE HUNT: For Mr. Delic.
19 MR. KARABDIC: I am Salih Karabdic from Sarajevo. My colleague
20 Thomas Moran from Houston. We represent Hazim Delic.
21 JUDGE HUNT: Thank you.
22 For Mr. Mucic.
23 MR. KUZMANOVIC: Good afternoon, Your Honours. Tomislav
24 Kuzmanovic and Howard Morrison here on behalf of Mr. Mucic.
25 JUDGE HUNT: And for Mr. Landzo.
1 MS. SINATRA: Good afternoon, Your Honours. I'm Cynthia Sinatra,
2 and along with Peter Murphy, we represent Esad Landzo.
3 JUDGE HUNT: Thank you.
4 The Appeals Chamber is sitting today to deliver judgement in an
5 appeal from a judgement from a Trial Chamber, given in a case which has
6 been known as the Celebici case. The Trial Chamber was constituted by
7 Judge Karibi-Whyte, who presided, Judge Odio-Benito, and Judge Jan.
8 The Trial.
9 The trial related to events which took place in 1992 in a prison
10 camp near the town of Celebici in central Bosnia and Herzegovina. The
11 four accused in this case, Zejnil Delalic, Zdravko Mucic, Hazim Delic, and
12 Esad Landzo, were charged with numerous counts of grave breaches of the
13 Geneva Conventions of 1949 under Article 2 of the Tribunal's Statute and
14 of violations of the laws or customs of war under Article 3. The victims
15 were the Bosnian Serb detainees in the Celebici camp.
16 Delalic was alleged to have coordinated the activities of the
17 Bosnian Muslim and Bosnian Croat forces in the area and later to have been
18 the Commander of the First Tactical Group of the Bosnian army. He was
19 alleged in that capacity to have had authority over the Celebici camp.
20 The Trial Chamber found him not guilty on all counts, on the basis that he
21 did not have sufficient command and control over the Celebici camp and its
22 guards to found his criminal responsibility as a superior for the crimes
23 which they committed in the camp.
24 Mucic was found by the Trial Chamber to be the Commander of the
25 Celebici camp, and he was found guilty under the principles of superior
1 responsibility for crimes committed by his subordinates, including murder,
2 torture, and inhuman treatment. He was also found guilty of personal
3 responsibility for the unlawful confinement of civilians. Mucic was given
4 a total sentence of seven years.
5 Delic was found by the Trial Chamber to have acted as the Deputy
6 Commander of the camp, and he was found guilty on the basis of personal
7 responsibility for crimes including murder, torture, and inhuman
8 treatment. He was given a total sentence of twenty years.
9 Landzo was found by the Trial Chamber to be a guard at the camp,
10 and he was found guilty of committing offences including murder, torture,
11 and cruel treatment. He was given a total sentence of fifteen years'
13 The Appeal.
14 The three convicted accused, Mucic, Delic, and Landzo, filed
15 appeals against the Trial Chamber's judgement. The Prosecution also filed
16 an appeal against the judgement on a number of grounds, including grounds
17 of appeal relating to the acquittal of Delalic. The four appellants
18 between them filed a total of 48 grounds of appeal. Certain of the
19 grounds of appeal of the three convicted appellants related to the same
20 subject matter, and they were therefore dealt with together in the hearing
21 of oral submissions and in the written judgement delivered today.
22 For the purposes of this hearing, I propose to summarise briefly
23 the conclusions of the Appeals Chamber on the various grounds of appeal,
24 grouped in the same order as they are dealt with in the judgement. I
25 emphasise that this is a summary only, and that it forms no part of the
1 judgement which is delivered. The only authoritative account of the
2 Appeals Chamber's conclusions, and of its reasons for those conclusions,
3 is to be found in the written judgement, copies of which will be made
4 available to the parties at the conclusion of this hearing.
5 Article 2 of the Statute.
6 The convicted appellants raised three issues in relation to the
7 legal conditions for the application of Article 2 of the Statute, which
8 gives to the Tribunal jurisdiction over grave breaches of the Geneva
9 Conventions of 1949.
10 It is established in the Tribunal's jurisprudence that the
11 Prosecution must prove the existence of an international armed conflict in
12 relation to any offences charged under Article 2. The Trial Chamber found
13 that the armed conflict in Bosnia and Herzegovina at the relevant time was
14 international, as the Bosnian Serb forces fighting in Bosnia and
15 Herzegovina were under the control of the Federal Republic of Yugoslavia.
16 The Appeals Chamber has reaffirmed its Tadic Conviction Appeal Judgement,
17 which had been followed in its Aleksovski Appeal Judgement and which held
18 that what must be established by the Prosecution is that the foreign
19 intervening party was in overall control of the local forces.
20 The Appeals Chamber has reiterated that it will follow the ratio
21 decidendi of its previous decisions unless there are cogent reasons in the
22 interests of justice to depart from them. It considers that there is no
23 reason to depart from the decision in its Tadic Conviction Appeal
24 Judgement as to the relevant standard of control for this purpose. The
25 Appeals Chamber has expressed additional reasons as to why that
1 interpretation was correct, and it is satisfied that the Trial Chamber's
2 factual determination on this issue was consistent with the overall
3 control standard which had been stated.
4 The appellants also challenged the Trial Chamber's finding that,
5 for the purposes of Article 2 of the Statute, the victims were persons
6 protected under the relevant Geneva Convention. In the Tadic Conviction
7 Appeal Judgement, the Appeals Chamber held that "a person may be accorded
8 protected person status, notwithstanding the fact that he is of the same
9 nationality as his captors," a ruling subsequently endorsed by the Appeals
10 Chamber in Aleksovski. The Appeals Chamber has concluded that there is no
11 reason to depart from this interpretation, and it has confirmed that the
12 "nationality of the victims for the purpose of the application of Gevena
13 Convention IV should not be determined on the basis of formal national
14 characterisations," but that the nationality should take into account the
15 differing ethnicities of the victims and the perpetrators and their bonds
16 with a foreign intervening state. The Appeals Chamber is satisfied that
17 the Trial Chamber's findings were consistent with this interpretation.
18 Delic also challenged the Tribunal's jurisdiction to prosecute
19 grave breaches of the Geneva Conventions because, it was submitted, Bosnia
20 and Herzegovina was not a party to the conventions until after the
21 relevant events, having acceded to them subsequently. The Appeals Chamber
22 has held that Bosnia and Herzegovina succeeded to the Geneva Conventions,
23 with the effect that it is considered to be a party to the treaty from the
24 date of its succession or independence, which was prior to the relevant
25 events. The Appeals Chamber has also stated that, even without a formal
1 act of succession, Bosnia and Herzegovina would automatically have
2 succeeded to the Geneva Conventions, as they are treaties of a universal
3 multilateral character relating to fundamental human rights.
4 Common Article 3 and Article 3 of the Statute.
5 The appellants also challenged the jurisdiction of the Tribunal to
6 prosecute violations of Article 3 common to the Geneva Conventions under
7 Article 3 of the Statute. The Appeals Chamber has concluded that there is
8 no reason to depart from its Tadic Jurisdiction Decision, which held that
9 the violations of the laws or customs of war which may fall within Article
10 3 of the Statute of the Tribunal include violations of Common Article 3,
11 that these violations give rise to individual criminal responsibility, and
12 that they may be prosecuted whether committed in internal or international
13 conflicts. It has expressed additional reasons as to why that decision
14 was correct.
15 Command Responsibility.
16 Mucic was convicted under Article 7.1 for his superior authority
17 as Commander of the Celebici camp for the crimes committed there. He
18 argued that command responsibility is limited to de jure commanders, or
19 those superiors with control over subordinates equivalent to such de jure
20 authority. The Appeals Chamber has rejected that argument, accepting that
21 a position of de facto command may be sufficient to establish the
22 necessary superior-subordinate relationship, as long as the relevant
23 degree of control over subordinates is established. The relevant
24 superior-subordinate relationship is established where the superior has
25 effective control over the persons committing the underlying violations of
1 international humanitarian law, in the sense of having the material
2 ability to prevent or punish the commission of these offences.
3 Mucic also challenged the sufficiency of the evidence to establish
4 that he was a de facto commander. The Appeals Chamber has held that, on
5 the evidence before the Trial Chamber, it was open to a reasonable
6 tribunal of fact to find that Mucic exercised powers of control sufficient
7 to constitute the exercise of de facto authority over the camp, and
8 therefore that no basis for reviewing the Trial Chamber's findings of fact
9 had been made out.
10 The Prosecution appealed against the Trial Chamber's
11 interpretation of the requirement, in Article 7.3, that a superior "knew
12 or had reason to know" that a subordinate is about to commit crimes or had
13 done so. The Appeals Chamber has concluded that the phrase "reason to
14 know" in Article 7.3 means that a superior will be charged with knowledge
15 of subordinates' offences if information of a general nature was available
16 to him which would have put him on notice of those offences. The Appeals
17 Chamber is satisfied that the Trial Chamber's conclusions on this issue
18 were consistent with that interpretation.
19 The Prosecution also contended that the ability of an accused to
20 exercise forms of influence should suffice to establish the relevant
21 superior-subordinate relationship. The Appeals Chamber has concluded
22 that, whilst indirect as well direct relationships of subordination will
23 suffice, the relevant standard of effective control over subordinates must
24 be established, and that any forms of influence which fall short of such
25 control would not suffice. The Appeals Chamber is satisfied that, on the
1 evidence before the Trial Chamber, it was open to a reasonable tribunal of
2 fact to acquit Delalic on the basis that he was not a superior in relation
3 to the Celebici camp and those working there.
4 Unlawful Confinement of Civilians.
5 Both Mucic and the Prosecution filed grounds of appeal relating to
6 the charges of unlawful confinement of civilians. Mucic challenged his
7 conviction for that offence, and the Prosecution challenged the acquittal
8 of Delalic and Delic of those offences.
9 The Trial Chamber concluded that the offence of unlawful
10 confinement of civilians is committed:
11 first, when civilians are involuntarily confined in breach of
12 Article 42 of Geneva Convention IV, which provides that civilians may only
13 be detained where there are reasonable grounds to believe that the
14 security of the Detaining Power makes it absolutely necessary; and
15 secondly, when civilians are detained without compliance with
16 Article 43 of the Geneva Convention, which provides that their detention
17 must be reviewed by an appropriate court or administrative board.
18 The Appeals Chamber has confirmed the Trial Chamber's definition
19 of the offence, and it has accepted that, on the evidence before the Trial
20 Chamber, it was open to a reasonable tribunal of fact to find that the
21 detainees in the Celebici camp were unlawfully detained.
22 The Appeals Chamber has also confirmed that the Prosecution does
23 not have to establish that a person is in a position of superior authority
24 before he can be found guilty of direct responsibility for this offence
25 under Article 7.1 of the Statute, but that a prison guard with no
1 authority to release prisoners will not be guilty of the offence by virtue
2 only of his failure to take unauthorised steps to release them.
3 The Appeals Chamber has dismissed the Prosecution appeal against
4 the acquittal of Delalic and Delic on this charge, on the basis that the
5 Prosecution has failed to identify any evidence before the Trial Chamber
6 which demonstrated that a finding of guilty was the only reasonable
7 conclusion to be drawn. As to the appeal by Mucic against his conviction
8 on this charge, the Appeals Chamber has held that, on the evidence before
9 the Trial Chamber, it was open to a reasonable tribunal of fact to find
10 that he had some authority to release prisoners, that he had failed to
11 release those civilians whom he knew to be unlawfully detained because
12 they had not received the necessary procedural review of their detention,
13 and that he was therefore guilty of this offence.
14 Cumulative Convictions.
15 Delic and Mucic challenged their convictions upon charges based
16 upon the same conduct and alleging both grave breaches of the Geneva
17 Conventions under Article 2 of the Statute and violations of the laws or
18 customs of war under Article 3. This was the first time that the issue of
19 cumulative convictions has arisen for the express consideration of the
20 Appeals Chambers.
21 The Appeals Chamber has concluded that reasons of fairness to the
22 accused, and the consideration that only distinct crimes justify
23 cumulative convictions, require that cumulative convictions are
24 permissible only if each statutory provision involved has a materially
25 distinct element not contained in the other. The Appeals Chamber has
1 concluded, by majority, that this assessment of the elements of the
2 offences must take into account all of the elements of the offences,
3 including the chapeaux (or legal prerequisite elements) of each Article of
4 the Statute.
5 Where this test is not met, a decision must be made in relation to
6 which offence it will enter a conviction, on the basis that the conviction
7 must be for the offence containing the more specific provision. Where, as
8 in the present case, the evidence establishes the guilt of an accused
9 based upon the same conduct under both Article 2 and Article 3 of the
10 Statute, the conviction must be entered for the offence under Article 2.
11 The challenge by Delic and Mucic has therefore been upheld, and
12 the charges against them under Article 3 have been dismissed. As Landzo
13 similarly received cumulative convictions under Articles 2 and 3, the
14 charges against him under Article 3 have also been dismissed,
15 notwithstanding that he did not challenge them.
16 In a separate and dissenting opinion, Judge Hunt and Judge
17 Bennouna have agreed with the majority that cumulative convictions should
18 be permissible only where each offence has a materially different element
19 not contained in the other, but they have proposed different tests for
20 determining whether this was so in the particular case and, where
21 cumulative convictions are not permissible, for determining which offence
22 should carry the conviction. These tests would in some cases have
23 produced a different result.
24 As the sentencing outcome in respect of each of the three
25 convicted accused may have been different had the Trial Chamber not
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts
1 imposed multiple convictions, the issue of resentencing has been remitted
2 to a new Trial Chamber to be designated by the President of the Tribunal.
3 Delic - Factual Issues.
4 Delic challenged his convictions upon ten of the counts against
5 him, involving five separate incidents, on the basis that the Trial
6 Chamber had erred in its relevant factual findings.
7 In the matter of the murder of Scepo Gotovac, one of the detainees
8 in the Celebici camp, the Appeals Chamber has concluded that the Trial
9 Chamber's conclusion that Delic participated in the beating which was
10 responsible for Mr. Gotovac's death was not open on the evidence before
11 it. The convictions relating to this incident have been quashed and
12 verdicts of not guilty entered. In relation to the other four incidents,
13 the Appeals Chamber has concluded that, on the evidence before the Trial
14 Chamber, it was open to a reasonable tribunal of fact to find him guilty
15 of the offences charged.
16 The Prosecution Interviews With Mucic.
17 Mucic challenged the admission into evidence of interviews
18 conducted with him by investigators from the Office of the Prosecutor
19 following his arrest. He submitted that the Trial Chamber should have
20 found that he had not voluntarily waived his right to counsel under the
21 Tribunal's Statute and Rules, and that it should therefore have excluded
22 the evidence obtained as a result of the interviews. Mucic also claimed
23 that the Trial Chamber erred in refusing to issue a subpoena to the
24 interpreter present at these interviews to give evidence of any
25 conversation between the investigators and himself which took place before
1 the interviews started and which may have led to the waiver.
2 The Appeals Chamber is not satisfied that any error has been
3 demonstrated in the Trial Chamber's refusal to issue a subpoena to the
4 interpreter to give evidence. It has stated that a voir dire procedure
5 could be of assistance, in appropriate cases, in determining any factual
6 issues relating to the admissibility of evidence such as these, but that
7 the Trial Chamber committed no error in the exercise of its discretion in
8 not adopting that procedure in the absence of any clear indication that
9 the accused would give evidence in relation to those issues.
10 The Appeals Chamber is satisfied that, on the evidence before the
11 Trial Chamber, it was open to a reasonable tribunal of fact to find that
12 Mucic had expressed the wish to be interviewed without counsel, and that
13 the Trial Chamber had accordingly not erred in the exercise of its
14 discretion to allow the evidence to be tendered on that basis.
15 Dimished Mental Responsibility.
16 Before the trial, Landzo gave notice under the Tribunal's Rules of
17 Procedure and Evidence that he would be relying upon the special defence
18 of diminished mental responsibility, and he submitted that such a defence
19 amounted to a complete defence to the offences with which he had been
20 charged, leading to an acquittal.
21 Landzo argued that the Trial Chamber erred by refusing to define
22 the "special defence" in advance of the evidence being given in support of
23 it. The Appeals Chamber has held that it is no part of a Trial Chamber's
24 obligation to define such issues in advance, and that in any event, no
25 prejudice had been established as resulting from that refusal.
1 Landzo also challenged the Trial Chamber's rejection of the
2 "special defence" as having been inconsistent with the great weight of
3 the evidence. The Appeals Chamber has held that an accused's diminished
4 mental responsibility is relevant to the sentence to be imposed, but it is
5 not a defence to offences charged under the Tribunal's Statute.
6 Rule 67(A)(ii)(b) must therefore be interpreted as referring to diminished
7 mental responsibility where it is raised by the defendant as a matter in
8 mitigation of sentence. The Appeals Chamber has also held that, in any
9 event, on the evidence before the Trial Chamber, it was open to a
10 reasonable tribunal of fact to reject the evidence of Landzo as to his
11 state of mind upon which his psychiatrist witnesses relied, and
12 therefore - as the Trial Chamber did - to reject their opinion that he had
13 suffered from a diminished mental responsibility.
14 Selective Prosecution.
15 Landzo challenged his conviction upon the basis that he was the
16 victim of selective prosecution based on discriminatory grounds.
17 In 1998, the Office of the Prosecutor withdrew indictments against
18 a number of low-ranking accused as a result of a changed prosecutorial
19 strategy. Landzo alleged that the continued maintenance of the charges
20 against him was discriminatory, as he was a young Muslim camp guard and
21 the others against whom indictments had been withdrawn were all
22 non-Muslims of Serb ethnicity. He contends that he was prosecuted as a
23 "representative" of the Bosnian Muslims.
24 The Appeals Chamber has held that, whilst the Prosecutor has a
25 wide discretion in relation to prosecutorial strategy, this discretion is
1 not unlimited. However, Landzo had not discharged his burden of
2 establishing any abuse of the prosecutorial discretion. He has not
3 demonstrated that his Prosecution was continued for any impermissible
4 motive or that other accused, similarly situated to himself, were not
5 prosecuted. At the time of the dismissal of the indictments against other
6 accused, none of whom were in the custody of the Tribunal, Landzo's trial
7 was well under way. The continuation of the proceedings against him was
8 consistent with the policy of the Prosecutor to prosecute not only those
9 holding higher levels of possibility but also those "personally
10 responsible for exceptionally brutal or otherwise extremely serious
12 Judge Karibi-Whyte.
13 Landzo challenged the fairness of his trial upon the basis that
14 the Presiding Judge, Judge Karibi-Whyte, had been "asleep during
15 substantial portions of the trial." At a late stage of the appellate
16 proceedings, Delic and Mucic adopted this ground of appeal. The burden of
17 the argument, however, was left to Landzo. The parties agreed that the
18 relevant principle was that proof that a Judge slept through part of the
19 proceedings or was otherwise not completely attentive to them is a matter
20 which, if it causes actual prejudice to a party, may affect the fairness
21 of the proceedings to such a degree as to give rise to a right to a new
22 trial or other adequate remedy.
23 Both Landzo and the Prosecution selected, from the audiovisual
24 records of the trial produced by the courtroom cameras generally focused
25 on the Judges' bench, those portions of the records upon which they relied
1 in support of this ground and in opposition to it. The written
2 submissions filed by Landzo contained extensive and detailed descriptions
3 of what was said to be seen and heard on the videotapes. Before the oral
4 hearing, the Appeals Chamber viewed those portions upon which the parties
5 relied. The Appeals Chamber has concluded that the descriptions given
6 were both highly coloured and gravely exaggerated, and that they appeared
7 to have been given with a reckless indifference to the truth.
8 The Appeals Chamber has found that the appellants have manifestly
9 failed to establish the allegation that Judge Karibi-Whyte was "asleep
10 during substantial portions of the trial," but that the portions of the
11 videotapes relied upon by Landzo nevertheless demonstrated a recurring
12 pattern of behaviour where the Judge appears not to have been fully
13 conscious of the proceedings for short periods of time. These periods
14 were usually five to ten seconds long, and sometimes up to 30 seconds, but
15 they were repeated over extended periods of 10 to 15 minutes. On one
16 occasion only, the Judge appeared to be asleep for approximately
17 30 minutes. The Appeals Chamber has proceeded to consider whether,
18 notwithstanding their failure to establish the factual basis of these
19 grounds of appeal, the appellants nevertheless have a valid cause for
20 complaint as to the fairness of the trial.
21 The Appeals Chamber has stated, firmly, that Judge Karibi-Whyte's
22 conduct cannot be accepted as appropriate conduct for a Judge. It has
23 also said that if a Judge suffers from some condition which prevents him
24 or her from giving full attention during the trial, then it is the duty of
25 that Judge to seek medical assistance and, if that does not help, to
1 withdraw from the case. However, before a judgement will be quashed upon
2 this basis, it must be established that some identifiable prejudice was
3 caused by that conduct to the appellant, and the failure of counsel to
4 object at the trial to the conduct in question is relevant to whether such
5 prejudice has been established. The requirement that the issue be raised
6 during the proceedings is not simply an application of a formal doctrine
7 of waiver, but a matter indispensable to the granting of fair and
8 appropriate relief.
9 The Appeals Chamber has not been satisfied that any specific
10 prejudice was suffered by Landzo or the other appellants. In the absence
11 of any actual prejudice, the Appeals Chamber has rejected the ground of
13 Judge Odio-Benito and Vice-Presidency of Costa Rica.
14 During the course of the trial, Judge Odio-Benito was elected
15 Vice-President of Costa Rica, and she took an oath of office as such. All
16 three convicted accused challenged her qualifications to remain as a Judge
17 of the Tribunal during the rest of the trial, and they alleged that, in
18 any event, she should have disqualified herself as a Judge by reason of
19 those facts because she was no longer independent.
20 The Appeals Chamber has held that because the Judges of the
21 Tribunal must necessarily come from a wide variety of legal systems, the
22 requirement of Article 13 of the Tribunal's Statute (as it was at the
23 relevant time) that the Judges of the Tribunal "possess the qualifications
24 required in their respective countries for appointment to the highest
25 judicial offices" was intended to ensure that the essential qualifications
1 did not differ from Judge to Judge and that it was not intended to include
2 within the required legal qualifications any constitutional
3 disqualifications peculiar to a particular country. The Appeals Chamber
4 has, in any event, rejected the argument that by virtue of her election as
5 Vice-President of Costa Rica, Judge Odio-Benito was constitutionally
6 disqualified for election as a magistrate of the Supreme Court of Justice
7 under the constitution of that country.
8 The Appeals Chamber has also rejected the argument that
9 Judge Odio-Benito should nevertheless have disqualified herself as a Judge
10 because she was no longer independent. The Appeals Chamber has not
11 accepted that the Judge exercised any executive functions in Costa Rica
12 during the time she was also a Judge of the Tribunal. The appellants have
13 failed to establish that the reaction of the hypothetical observer with
14 sufficient knowledge of the circumstances to make a reasonable judgement
15 would be that she might not bring an impartial and unprejudiced mind to
16 the issues arising in the Celebici case.
17 Judge Odio-Benito and the Victims of Torture.
18 All three convicted accused also alleged that Judge Odio-Benito
19 was automatically disqualified as a Judge of the Tribunal because she was,
20 at the time this case was heard, a member of the Board of Trustees of the
21 United Nations Voluntary Fund for Victims of Torture.
22 They contended that since the indictment in this case included
23 allegations of torture, there was a strong appearance of bias on the part
24 of the Judge against those accused who were the subject of those
1 The Appeals Chamber has held that the same hypothetical observer
2 would be aware that the objects of this fund are solely focused on
3 fund-raising to enable material assistance to be given to the victims of
4 torture - through the receipt and redistribution of donations for
5 humanitarian, legal, and financial aid to victims of torture and their
6 relatives - and would not expect Judges to be morally neutral about
7 torture. Rather, such an observer would expect Judges to hold the view
8 that persons responsible for torture should be punished. It has accepted
9 the statement that "it is [...] important that judicial officers discharge
10 their duty to sit and do not, by acceding too readily to suggestions of
11 apparent bias, encourage parties to believe that by seeking the
12 disqualification of a judge they will have their case tried by someone
13 thought to be more likely to decide the case in their favour."
15 All of the parties, with the exception of Delalic, filed grounds
16 of appeal in relation to sentencing. The Prosecution challenged the
17 sentences imposed on Mucic of seven years to be served concurrently as
18 "manifestly inadequate." Mucic challenged his sentence as too long in
19 all the circumstances.
20 The Appeals Chamber has concluded that the Trial Chamber failed to
21 take adequate account of the gravity of offences for which Mucic was
22 convicted and that in a number of respects, it failed to take into account
23 or gave inadequate weight to various matters in aggravation. The Appeals
24 Chamber has rejected one complaint by the Prosecution, that the Trial
25 Chamber erred when it did not take into account criminal conduct which was
1 not specifically alleged in the indictment and in relation to which the
2 Prosecution had not requested the Trial Chamber to make specific
3 findings. The Appeals Chamber has accepted one complaint by Mucic, that
4 the Trial Chamber erred in making an adverse reference in its sentencing
5 considerations to the fact that Mucic had declined to give oral testimony
6 at the trial, but it has otherwise rejected his complaints.
7 The Appeals Chamber has indicated that taking into account the
8 various considerations relating to the gravity of his offences, all the
9 aggravating circumstances, the mitigating circumstances to which the Trial
10 Chamber referred, and the "double jeopardy" element involved in
11 resentencing, it would have imposed on Mucic a heavier sentence of a total
12 of around ten years' imprisonment. This is a figure to which the new
13 Trial Chamber to consider sentencing issues may have regard in its own
15 Delic challenged his sentence on the basis that the Trial Chamber
16 contravened the principles of legality by imposing sentences on him which
17 were greater than the sentences which would have been permitted at the
18 relevant time under the sentencing laws and practice of the former
19 Yugoslavia. The Appeals Chamber has rejected that challenge. It has also
20 stated that whilst Trial Chambers must, as required by Article 24.1 of the
21 Statute, have recourse to the general practice regarding sentencing in the
22 courts of the former Yugoslavia, they are not bound by that practice. The
23 Appeals Chamber has also concluded that the sentences imposed on Delic
24 have not been shown to be excessive or in any way outside of the Trial
25 Chamber's sentencing discretion.
1 Landzo challenged his sentence on the basis that it was manifestly
2 excessive. He sought to show a disparity between his sentence and
3 sentences imposed on persons convicted in other cases before the
4 Tribunal. The Appeals Chamber has not accepted that the comparisons made
5 by him are valid. It has also concluded that the Trial Chamber adequately
6 considered the mitigating factors applicable to Landzo.
8 The formal orders made by the Appeals Chamber in the Disposition
9 section of the judgement are as follows:
10 1. In relation to Counts 1 and 2 of the Indictment, the Appeals
11 Chamber allows the ninth and tenth grounds of appeal filed by Hazim Delic,
12 it quashes the verdict of the Trial Chamber accordingly, and it enters a
13 verdict that Hazim Delic is not guilty upon those counts.
14 2. In relation to the grounds of appeal relating to cumulative
15 convictions, the Appeals Chamber allows the twenty-first ground of appeal
16 filed by Hazim Delic and the seventh ground of appeal filed by Zdravko
17 Mucic; it dismisses Counts 14, 34, 39, 45, and 47 against Zdravko Mucic;
18 it dismisses Counts 4, 12, 19, 22, 43, and 47 against Hazim Delic, and it
19 dismisses Counts 2, 6, 8, 12, 16, 25, 31, 37, and 47 against Esad Landzo.
20 It remits to a Trial Chamber to be nominated by the President of the
21 Tribunal the issue of what adjustment, if any, should be made to the
22 sentences imposed on Hazim Delic, Zdravko Mucic, and Esad Landzo to take
23 account of the dismissal of these counts.
24 3. In relation to the eleventh ground of appeal filed by Zdravko
25 Mucic, the Appeals Chamber finds that the Trial Chamber erred in making
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts
1 adverse reference when imposing sentence to the fact that he had not given
2 oral evidence in the trial, and it directs the Reconstituted Trial Chamber
3 to consider the effect, if any, of that error on the sentence to be
4 imposed on Mucic.
5 4. The Appeals Chamber allows the fourth ground of appeal filed
6 by the Prosecution alleging that the sentence of seven years imposed on
7 Zdravko Mucic was inadequate, and it remits the matter of the imposition
8 of an appropriate revised sentence for Zdravko Mucic to the Reconstituted
9 Trial Chamber, with the indication that, had it not been necessary to take
10 into account a possible adjustment in sentence because of the dismissal of
11 the counts referred to, it would have imposed a sentence of around ten
13 5. The Appeals Chamber dismisses each of the remaining grounds of
14 appeal filed by each of the appellants.
15 The Appeals Chamber's reasons for these orders are now published.
16 The accused are to remain in custody in the Detention Unit until
17 further order.
18 That concludes the appeal, and the Chamber will now adjourn.
19 --- Whereupon the Judgement on Appeal adjourned
20 at 4.14 p.m.