1 Tuesday, 9 October 2001
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 5.00 p.m.
6 JUDGE MAY: Yes. Let the registrar call the case.
7 THE REGISTRAR: Yes, Your Honour. This is the case number,
8 IT-96-21-Tbis-R117, the Prosecutor versus Mucic, Delic, and Landzo.
9 JUDGE MAY: Appearances, please.
10 MR. KUZMANOVIC: Good afternoon, Your Honours, Tom Kuzmanovic and
11 Howard Morrison here on behalf of Mr. Mucic.
12 JUDGE MAY: Mr. Blewitt's first.
13 MR. BLEWITT: May it please the Court, Graham Blewitt representing
14 the Prosecutor, assisted by Gina Butler.
15 JUDGE MAY: Yes.
16 MR. KARABDIC: Good afternoon, Your Honour. I am Salih Karabdic.
17 THE INTERPRETER: Microphone for the counsel, please.
18 MR. KARABDIC: With me is my colleague Thomas Moran, lawyer from
19 Houston, Texas. We represent Hazim Delic.
20 MS. SINATRA: Good afternoon, Your Honours. I'm Cynthia Sinatra,
21 and I'm here representing Esad Landzo.
22 JUDGE MAY: Thank you. This hearing is for the Trial Chamber to
23 pass adjusted sentences in this case. What follows is a summary of the
24 written judgement and forms no part of it.
25 These accused were originally sentenced by Trial Chamber II at the
1 conclusion of the trial in November 1998. The Appeals Chamber
2 subsequently allowed appeals against convictions and sentence and remitted
3 to a Trial Chamber the question of what adjustment, if any, should be made
4 to the sentences of the three accused.
5 The background is this: The three accused were tried together
6 with a fourth man, Zejnil Delalic, who was acquitted. All four were
7 charged with numerous counts of grave breaches of the Geneva Conventions
8 of 1949 under Article 2 of the Statute of the International Tribunal and
9 of violations of the laws or customs of war under Article 3. The charges
10 arose from events which took place in the Celebici prison camp in Central
11 Bosnia and Herzegovina. The roles of the three accused were found to be
12 as follows:
13 Mucic was commander of the camp and was found guilty, as a
14 superior, for crimes committed by his subordinates including murder,
15 torture, and inhuman treatment and as personally responsible for the
16 unlawful confinement of civilians. He was sentenced to a total of seven
17 years' imprisonment.
18 Delic was the deputy commander of the camp and was found guilty of
19 being personally responsible for crimes including murder, torture, and
20 inhuman treatment. He was sentenced to 20 years' imprisonment.
21 Landzo was a guard at the camp and was found guilty as being
22 personally responsible for crimes including murder, torture, and cruel
23 treatment. He was sentenced to 15 years' imprisonment.
24 The Appeals Chamber upheld the convictions of all three accused
25 under Article 2 but held that where, as in the instant case, the evidence
1 establishes the guilt of an accused based upon the same conduct under both
2 Articles 2 and 3, a conviction should be entered under Article 2 alone and
3 the charges under Article 3 should be dismissed. As a result, the Appeals
4 Chamber dismissed the cumulative convictions against all three accused
5 under Article 3. The Chamber acknowledged that "if the Trial Chamber had
6 not imposed double convictions, a different outcome in terms of the length
7 and manner of sentencing might have resulted" and remitted the issue of
8 sentencing to a Trial Chamber to consider what adjustment, if any, should
9 be made to the original sentence imposed on the accused to take account of
10 the dismissal of the cumulative counts. The Appeals Chamber stressed that
11 this would involve not a complete rehearing of the matter of sentence but
12 for the Trial Chamber to consider any adjustment after the parties had the
13 opportunity to make relevant submissions.
14 The Appeals Chamber also quashed the convictions of Delic on two
15 counts related to the killing of one detainee but upheld the convictions
16 of the same accused on other counts related to other incidents. The
17 Chamber said that it would be convenient, when the matter was remitted,
18 for the new Trial Chamber to consider what adjustments should be made to
19 the sentence of the accused as a result of the reversal of his conviction
20 on the two counts.
21 The Appeals Chamber allowed the Prosecution appeal against the
22 sentence of seven years' imprisonment, concurrent, passed on Mucic on the
23 grounds that the sentence did not have sufficient regard to the gravity of
24 the offences and did not adequately reflect the totality of Mucic's
25 criminal conduct. The Chamber also held that the Trial Chamber was in
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 error in its sentencing remarks in referring to Mucic's failure to testify
2 in such a way that the real possibility was left open that it was treated
3 as an aggravating circumstance. The matter of an appropriate, revised
4 sentence was referred to the new Trial Chamber with a direction to
5 consider the effect, if any, of the error of the Trial Chamber on sentence
6 and with an indication that the Appeals Chamber would have considered a
7 sentence of around ten years' imprisonment appropriate had it not been for
8 the adjustment of sentence necessary due to the dismissal of the
9 cumulative counts.
10 The Trial Chamber now turns to the issue of appropriate sentences
11 for these three accused, beginning with the case of Mucic. In considering
12 an appropriate revised sentence in his case, the Trial Chamber is bound by
13 the decision of the Appeals Chamber that the sentence was inadequate and
14 cannot now go behind it. Although the Trial Chamber is not bound by the
15 indication of the Appeals Chamber as to a proper sentence, it is plainly
16 appropriate to take that indication into account. In these circumstances,
17 the Trial Chamber asks itself this question: Has any reason been
18 submitted by the parties as to why it should depart from that indication?
19 The Trial Chamber finds that no such reason has been submitted.
20 As to the Trial Chamber's adverse comment on Mucic's failure to
21 testify during his trial, it is not possible for this Trial Chamber to
22 ascertain the precise effect, if any, which the comment may have had on
23 his sentencing. However, the Trial Chamber is not in a position to say
24 that it had no effect. Under those circumstances, the Trial Chamber is of
25 the view that, since it may have had an effect, the original sentence
1 should be reduced accordingly. However, this can be given proper effect
2 by a small reduction, and the Trial Chamber considers that a single
3 sentence of nine years' imprisonment is appropriate.
4 Next, the case of Delic. The Trial Chamber is directed to
5 consider what adjustment, if any, should be made to the sentence imposed
6 on him as a result of the quashing of his convictions on counts 1 and 2.
7 The counts related to the wilful killing/murder of a detainee as a result
8 of a beating. On the other hand, the accused remains convicted of one
9 offence involving wilful killing (by beating), an offence of wilfully
10 causing great suffering (again by beating), two offences of torture by way
11 of rape, and an offence of inhumane treatment of detainees involving the
12 use of an electric device on prisoners. The total sentence imposed was 20
13 years' imprisonment.
14 Having considered all these factors, the Trial Chamber finds that,
15 following his appeal, there has been some reduction in the totality of
16 criminality of the accused. Nonetheless, that reduction is slight given
17 the very serious offences for which the accused remains convicted.
18 Accordingly, the Trial Chamber considers that a reduction of two years in
19 the sentence would correctly reflect the total criminality of the accused,
20 and that a single sentence of 18 years is therefore appropriate.
21 Finally, the Trial Chamber has considered what, if any, adjustment
22 should be made to the sentences in the light of the dismissal of the
23 cumulative convictions. Prior to the instant case, the practice of the
24 International Tribunal had been to allow accused to be convicted of
25 cumulative offences but to impose concurrent sentences in order to avoid
1 unfairness to the accused. The original Trial Chamber followed this
2 practice of entering cumulative convictions but ordering that any
3 resulting sentences be served concurrently.
4 In remitting this case, the Appeals Chamber noted that the final
5 sentence should reflect the totality of the culpable conduct and overall
6 culpability of the offender which can be achieved either by the imposition
7 of one sentence or several sentences to run consecutively or concurrently,
8 this being a matter for the discretion of the Trial Chamber.
9 The Trial Chamber finds that the argument that the number of
10 convictions is reduced and, therefore, the sentence should be reduced is
11 not, in the Trial Chamber's view, realistic. In the case of these
12 accused, the totality of their criminal conduct has not been reduced by
13 reason of the quashing of the cumulative convictions. The original Trial
14 Chamber specifically had this factor in mind in passing the sentences
15 which clearly would have been the same without the cumulative
16 convictions. Accordingly, no adjustment to the original sentences will be
17 made on this account.
18 The Trial Chamber considers that the present case is best resolved
19 by way of a single and global sentence in the case of each accused,
20 thereby reflecting in each case the total criminality and culpability of
21 the accused.
22 Let the three accused stand.
23 [The accused stand up]
24 The Trial Chamber therefore sentences the three accused as
25 follows: Zdravko Mucic to 9 years' imprisonment, Hazim Delic to 18 years'
1 imprisonment, and Esad Landzo to 15 years' imprisonment.
2 The period of time the accused have spent in the custody of the
3 Tribunal shall be deducted from the sentences.
4 The Court will rise.
5 --- Whereupon the Sentence Hearing adjourned at
6 5.20 p.m.