1 Tuesday, 8 April 2003
2 [Appeal Judgement]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 2.35 p.m.
6 JUDGE MERON: Please be seated.
7 Madam Registrar, please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Case number
9 IT-96-21-A bis, the Prosecutor versus Zdravko Mucic, Hazim Delic, and Esad
11 JUDGE MERON: Mr. Mucic, can you hear me? Mr. Delic? Mr. Landzo?
12 Thank you.
13 I would ask for the appearances of the parties. For the
15 MR. FARRELL: Good afternoon, Your Honours. Appearing for the
16 Prosecution is Norman Farrell, Anthony Carmona, Helen Brady, and our case
17 manager is Nicola Bonfield.
18 JUDGE MERON: Thank you Mr. Farrell. Counsel for Mr. Mucic
19 MR. KUZMANOVIC: Good afternoon, Your Honours, Tom Kuzmanovic on
20 behave of Mr. Mucic. Mr. Morrison will not be here today.
21 JUDGE MERON: Thank you. Counsel for Mr. Delic.
22 MR. KARABDIC: Karabdic, Salih and Tom Moran.
23 JUDGE MERON: Thank you. Counsel for Mr. Landzo.
24 MS. SINATRA: I'm Cynthia Sinatra, along with Peter Murphy, my
25 illustrious colleague, for Mr. Landzo.
1 JUDGE MERON: Thank you.
2 The Appeals Chamber of this International Tribunal will now
3 deliver its judgement in this case.
4 Following the practice of the Tribunal, I shall not read out the
5 text of the judgement except for the disposition. Save for the
6 disposition, I shall limit myself to a summary of the judgement.
7 The Appeals Chamber is sitting today to deliver its second
8 judgement in the case of Zdravko Mucic, Hazim Delic, and Esad Landzo.
9 Judge Gunawardana, who is hearing a trial in Arusha, has been unable to
10 join the Bench today, but he has fully taken part in the preparation of
11 the judgement. The proceedings without one Judge are authorised by Rule
12 15 bis of the Rules of Procedure and Evidence.
13 The three appellants were convicted after their trial on charges
14 that, in their respective capacities as commander, deputy commander, and
15 guard at the Celebici camp in Central Bosnia and Herzegovina, they were
16 responsible for killing, torturing, sexually assaulting, beating, and
17 otherwise subjecting detainees in that camp to cruel and inhumane
18 treatment. They received effective total sentences of imprisonment of,
19 respectively, seven, twenty, and fifteen years.
20 The appellants appealed against their convictions and sentences,
21 and the Appeals Chamber previously dealt with those appeals in a judgement
22 which: upheld their appeal against cumulative convictions based upon the
23 same acts for both grave breaches of the Geneva Conventions and violations
24 of the laws or customs of war, dismissing the charges for the violation of
25 the laws or customs of war; upheld an appeal by Delic against one of his
1 convictions for wilful killing; upheld an appeal by the Prosecution
2 against the inadequacy of the sentence imposed upon Mucic; and upheld a
3 complaint by Mucic that the Trial Chamber had erred when sentencing him by
4 making an adverse reference to the fact that he had not given evidence at
5 the trial.
6 All the other ground of the appeal were dismissed, including a
7 challenge by Delic to a number of counts of wilful killing and torture
8 (constituted by rape and repeated incidents of forcible sexual
10 The Appeals Chamber remitted to a new Trial Chamber a number of
11 issues relating to the adjustment of the sentences which had been imposed
12 as a result of the rulings which had been made in the judgement on appeal.
13 The new Trial Chamber determined that: no adjustment should be made for
14 the dismissal of the cumulative convictions; the twenty-year sentence
15 imposed upon Delic should be reduced to eighteen years to reflect the
16 quashing of his conviction on one count of wilful killing; there
17 should be "a small reduction" given to Mucic as a result of that adverse
18 reference by the original Trial Chamber when sentencing him to the fact
19 that he had not given evidence at the trial; and an appropriate revised
20 sentence for Mucic was a sentence of imprisonment for nine years.
21 The three appellants have appealed again to the Appeals Chamber,
22 and the judgement being delivered today disposes of that second appeal.
23 For the purposes of this hearing, I propose to summarise briefly the
24 issues which arose during the second appeal and the rulings of the Appeals
25 Chamber in relation to those issues. I emphasise that this is a summary
1 only, and that it forms no part of the judgement which is delivered. The
2 only authoritative account of the Appeal Chamber's rulings, and of its
3 reasons for those rulings, is to be found in the written judgement, copies
4 of which will be made available to the parties and to the public at the
5 conclusion of this hearing.
6 1. All three appellants challenged the power of the Appeals
7 Chamber to remit limited issues to a new Trial Chamber and the ruling by
8 the Trial Chamber that further evidence upon the issue of sentencing was
10 The Appeals Chamber considered its power to remit such issues at
11 the time when it exercised that power in its judgement in the earlier
12 appeal. An appeal from the Trial Chamber's determination of those limited
13 issues does not give to the parties the opportunity to appeal against the
14 earlier decision of the Appeals Chamber to remit those limited issues to
15 the Trial Chamber. Nor does the Appeals Chamber consider it appropriate
16 to reconsider its power to remit limited issues to a new Trial Chamber.
17 Its power to remit limited issues is clear. The Appeals Chamber which
18 heard the first appeal was prevented by circumstances from conducting a
19 further hearing, before delivering its judgement, for the parties to make
20 submissions as to the appropriate sentences to be imposed. It, therefore,
21 had an inherent power to remit those issues to a Trial Chamber. None of
22 the evidence which the appellants wished to tender at the hearing was
23 relevant to the limited issues remitted, and the ruling by the new Trial
24 Chamber, effectively that such evidence was inadmissible, was correct.
25 There was in any event no prejudice suffered by the appellants, who gained
1 benefits which they would not have had if the adjustments to their
2 sentences had been determined by the Appeals Chamber itself, and that is
3 the opportunity to be heard further upon the remitted issues in the light
4 of the judgement which had been given, and to appeal if they were
5 dissatisfied by the resolution of those issues.
6 2. All three appellants challenged the finding by the Trial
7 Chamber that no adjustment was appropriate despite the dismissal of the
8 cumulative convictions.
9 The Appeals Chamber had emphasised in its earlier judgement that
10 the governing criterion in sentencing is that the sentence should reflect
11 the totality of the offender's conduct (the "totality" principle), and
12 that it should reflect the gravity of the offences and the culpability of
13 the offender so that it is both just and appropriate. The Trial Chamber
14 in the judgement now under appeal concluded that the totality of the
15 criminal conduct of each of the three appellants had not been reduced by
16 reason of the quashing of the cumulative convictions.
17 The Appeals Chamber has accepted that the cumulative convictions
18 of themselves involve an additional punishment, not only by reason of the
19 social stigmatisation inherent in being convicted of that additional
20 crime, but also the risk that, under the law of the State enforcing the
21 sentence, the eligibility of a convicted person for early release will
22 depend to some extent upon the number or nature of the convictions
23 entered. The quashing of the cumulative convictions, however, removed the
24 punishment involved in the additional convictions themselves. The issue
25 which the new Trial Chamber had to determine in the circumstances of the
1 present case was whether, in determining the length of the concurrent
2 sentences imposed, the original Trial Chamber had also added to the length
3 of those concurrent sentences because of those additional convictions.
4 From statements made by the original Trial Chamber in the course of the
5 proceedings and in its judgement, it was open to the new Trial Chamber to
6 conclude, as it did, that the sentences would have been the same without
7 the cumulative convictions.
8 3. Zdravko Mucic challenged the finding of the new Trial Chamber
9 that there should be a "small" reduction to his sentence as a result of
10 the adverse reference by the original Trial Chamber to the fact that he
11 had not given evidence at the trial.
12 The new Trial Chamber held that it was not possible to ascertain
13 the precise effect, if any, which this comment may have had on the
14 sentence imposed, but that it was not in a position to say that it had had
15 no effect. Mucic has argued that the error made by the original Trial
16 Chamber, by ignoring the burden and standard of proof, was so basic a
17 defect that he was entitled to a reduction as substantial as the error
18 which had been made. The Appeals Chamber has held that such an approach
19 is fundamentally defective. An appellate tribunal does not compensate an
20 appellant for the fact that an error was made; it adjusts the sentence to
21 remove the effect of the error which was made. The Appeals Chamber has
22 not been persuaded that the new Trial Chamber's characterisation of the
23 reduction warranted by the error made by the original Trial Chamber as
24 "small" was erroneous.
25 4. Zdravko Mucic has also changed the nine-year sentence imposed
1 by the new Trial Chamber in substitution for the original Trial Chamber's
2 sentence of seven years.
3 The Appeals Chamber had earlier held that the original Trial
4 Chamber, by imposing a sentence of seven years, had failed adequately to
5 take into account (a) the influential effect of a camp commander
6 encouraging or promoting crimes and an atmosphere of lawlessness within
7 the camp by his ongoing failure to exercise his duties of supervision,
8 (b), the gravity of his offences, and specifically the gravity of the
9 underlying crimes, and (c) the fact that both direct and superior
10 responsibility was involved in the wilful causing of great suffering or
11 serious injury to body or health by virtue of the inhumane conditions in
12 the camp. The Appeals Chamber has now held that there was no error made
13 by the new Trial Chamber in imposing a sentence of nine years, bearing in
14 mind the inherent gravity of the criminal conduct of Mucic, and the form
15 and degree of his participation in the crimes for which he was convicted.
16 5. Hazim Delic has challenged the reduction to his twenty-year
17 sentence by only two years following the quashing of one conviction for
18 wilful killing.
19 The new Trial Chamber assessed such a reduction upon the basis
20 that there had been some reduction in the totality of Delic's criminality
21 as a result of that conviction being quashed, but that the reduction was
22 slight given the very serious offences for which Delic remains convicted.
23 The Appeals Chamber has not been persuaded that the new Trial Chamber made
24 any errors of law, or that it erred in the exercise of its discretion, in
25 imposing the sentence of eighteen years for the remaining convictions.
1 The new Trial Chamber had correctly approached its task upon an overall
2 assessment of what was appropriate to the crimes for which Delic remained
3 convicted without reference to the evidence supporting the count which had
4 been quashed.
5 6. Hazim Delic has also sought the reconsideration by the Appeals
6 Chamber of its judgement in the previous appeal, when it rejected his
7 appeal against his conviction upon three other counts.
8 Delic has argued that there has been a "significant" change in the
9 law relevant to the present case since the earlier judgement of the
10 Appeals Chamber. He claims that, in the judgement of the Appeals Chamber
11 in the Kupreskic case, the Appeals Chamber laid down a "new test" of the
12 sufficiency of the evidence to support a conviction which, if it had been
13 applied by the Appeals Chamber in its earlier judgement, would have
14 resulted in the quashing of his convictions in respect of Counts 3, 18,
15 and 31 of the indictment.
16 There were two issues which arose in the relation to this
17 application. The first was whether the Appeals Chamber has power to
18 reconsider its judgements, as opposed to the power to review them in
19 accordance with Article 26 of the Tribunal's Statute. The second was
20 whether, if such a power exists, the Appeals Chamber should reconsider its
21 previous judgement in the present case. The Appeals Chamber is
22 unanimously of the view that the application for reconsideration should be
23 rejected. Judges Shahabuddeen, Hunt, and Gunawardana accept that the
24 Appeals Chamber has the power to reconsider its judgements, but they are
25 of the view that the application in this case should be rejected on its
1 merits. Judge Meron and Judge Pocar do not find it necessary to determine
2 whether the Appeals Chamber has such a power, and they reserve their
3 position on this issue. They agree that there was no intervening change
4 in the governing legal standard. Judge Shahabuddeen has also filed a
5 Separate Opinion in relation to this issue.
6 The Appeals Chamber is satisfied that, in considering whether the
7 original Trial Chamber's conclusion of Delic's guilt beyond reasonable
8 doubt upon those counts was one which no reasonable tribunal of fact could
9 have reached, the Appeals Chamber had in its earlier judgement applied the
10 same test as that applied in the Kupreskic case, and that the claim that
11 the Appeals Chamber had applied a "new test" in the Kupreskic case is
12 misconceived. The distinction to which the Appeals Chamber had referred
13 in that judgement, between the reliability (or the quality) of a witness's
14 evidence as opposed to the credibility (or truthfulness) of that witness,
15 was directed to the issue of identification raised in that appeal in
16 relation to the only one witness who had identified the accused. The
17 Trial Chamber in the Kupreskic case had acknowledged the criticisms of the
18 credibility of that witness, but had stated that those criticisms had been
19 outweighed by the impression which the witness had made upon the Chamber
20 when she was giving evidence. When determining whether no reasonable
21 tribunal of fact could have accepted that witness's evidence, it was
22 appropriate for the Appeals Chamber to have referred to the uncertainty
23 and the inherent frailties of identification evidence. That distinction
24 is a well-known one, and one which is not new to the Tribunal's
25 jurisprudence. It was for these reasons that the application for
1 reconsideration has been rejected.
2 I shall now read the operative paragraph of the Appeals Chamber
3 judgement, and at this point I would invite Mr. Mucic, Mr. Delic, and
4 Mr. Landzo to stand.
5 [The appellants stand up]
6 JUDGE MERON: The disposition at the end of the judgement is as
7 follows: For the following reasons:
8 1. The appeals against sentence are dismissed.
9 2. The sentences imposed by the Trial Chamber on 9 October 2001
10 are confirmed.
11 3. The time spent in custody for which each of the appellants is
12 entitled to credit is, accordingly, as follows:
13 For Zdravko Mucic, from 18 March 1996 to the date of this
14 Judgement; and for both Hazim Delic and Esad Landzo, from 2 May 1996 to
15 the date of this Judgement.
16 4. The application by Hazim Delic to have his appeal against
17 conviction reconsidered is rejected.
18 Rendered this 8th day of April, 2003 at The Hague, Netherlands in
19 English and French, the English version being the authoritative version.
20 The Judgement is signed by Judge Theodor Meron, President of this
21 International Tribunal and Presiding Judge of the Appeals Chamber.
22 Judge Meron and Judge Pocar append a joint separate opinion.
23 Judge Shahabuddeen also appends a separate opinion.
24 I shall now ask the registrar to deliver copies of the Judgement
25 to the parties.
1 You may be seated.
2 [The appellants sit down]
3 JUDGE MERON: The Appeals Chamber stands adjourned.
4 --- Whereupon the Appeal Judgement adjourned
5 at 2.59 p.m.