Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Tuesday, 9 October 2001

2 [Sentencing]

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

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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

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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

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













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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

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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

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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'

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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.