Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15920

1 Tuesday, 13th October, 1998

2 (Open session)

3 --- Upon commencing at 10.16 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies and

5 gentlemen. May we have the appearances, please?

6 MR. NIEMANN: Good morning, Your Honours. My

7 name is Niemann and I appear with my colleagues Ms.

8 McHenry and Mr. Huber for the Prosecution.

9 JUDGE KARIBI-WHYTE: May we have the Defence

10 appearances?

11 MS. RESIDOVIC: Good morning, Your Honours.

12 My name is Edina Residovic. I'm representing

13 Mr. Zejnil Delalic, together with my colleague

14 Mr. Eugene O'Sullivan, professor from Canada. Thank

15 you.

16 MR. MORRISON: Good morning, Your Honours.

17 I'm Howard Morrison. I appear for Mr. Mucic together

18 with Madam Buturovic and Mr. Greaves is consulting.

19 MR. KARABDIC: Good morning, Your Honours.

20 My name is Salih Karabdic, and I'm an attorney at law

21 from Sarajevo and I'm defending Mr. Hazim Delic,

22 together with Tom Moran, an attorney at law from

23 Houston, Texas.

24 MS. McMURREY: Good morning, Your Honours.

25 I'm Cynthia McMurrey, and along with Nancy Boler, we

Page 15921

1 represent Esad Landzo.

2 JUDGE KARIBI-WHYTE: We were going to start

3 with Mr. Moran this morning.

4 MR. MORAN: Yes, Your Honours. We will call

5 Dr. Tomic. He should be out in the hallway. Your

6 Honour, as we discussed yesterday, I'm sure the Court

7 is familiar with this report. I'm going to go over a

8 couple of areas. It will only take a few minutes, and

9 then open him to questioning from the Court, if that's

10 acceptable to you, Your Honour.

11 JUDGE KARIBI-WHYTE: Yes, I think so. Those

12 who have got the report have read it.

13 MR. MORAN: Yes, Your Honour. I just wanted

14 to have him here to be able to clarify things in the

15 report, because it is a question of law.

16 JUDGE KARIBI-WHYTE: I see there are some

17 difficulties in the translation.

18 MR. MORAN: Yes, Your Honour.

19 JUDGE KARIBI-WHYTE: In the report.

20 MR. MORAN: Yes, Your Honour.

21 (The witness entered court)

22 MR. MORAN: Your Honour, we did not use our

23 regular translator on this. This was a translation

24 done in Sarajevo, and it was sent to me by e-mail. That

25 was another reason why we wanted the doctor here.

Page 15922

1 JUDGE KARIBI-WHYTE: I think so, yes.

2 MR. MORAN: Your Honour, first, with the --

3 well, as soon as he takes the oath.

4 THE WITNESS: I solemnly declare that I will

5 speak the truth, the whole truth and nothing but the

6 truth.

7 JUDGE KARIBI-WHYTE: You may take your seat,

8 please.


10 Examined by Mr. Moran:

11 Q. Good morning, Dr. Tomic.

12 A. Good morning.

13 Q. Doctor, would you introduce yourself to the

14 Court and tell them a little bit about your training,

15 background and experience?

16 A. I'm Dr. Zvonimir Tomic. I'm a lecturer at

17 the department for criminal law of the school of law at

18 the University of Sarajevo. I was born in Sarajevo in

19 1951 where I graduated the from the school of law. In

20 1984, I defended a doctoral thesis at the University of

21 Belgrade at the school of law. In 1990, I defended my

22 thesis under the title "Security Measures in the

23 Yugoslav Criminal Law." Is this enough?

24 Q. Yes, Doctor, one other question, and it's a

25 question I've never asked before in this Court, but

Page 15923

1 will you tell the Judges what your ethnic background

2 is?

3 A. I'm a Croat.

4 MR. MORAN: Your Honours, with the help of

5 the usher, I have copies of English translations of

6 certain portions of the Criminal Code of the Socialist

7 Federal Republic of Yugoslavia, and I would move to

8 introduce those under the next number, whatever it is.

9 I believe I've already given them to the Prosecutor.

10 If I haven't, I'm sure they have got them other

11 places.

12 THE REGISTRAR: It's Exhibit 111/3.

13 MR. MORAN: Thank you.

14 Q. Doctor, I see you have your Penal Code in the

15 original Bosnian Serbo-Croatian in front of you, and if

16 you like you can refer to it. The Court has read your

17 report and is familiar with it. However, it has been

18 pointed out and we have talked about a few translation

19 problems in it, one of the things I want to do is clear

20 up some of those.

21 The first thing I want to ask you, Doctor, is

22 we've talked about and you're familiar with Judge

23 McDonald's decision on sentencing in the Tadic case,

24 the part about the maximum punishments and the death

25 sentence. Doctor, you have to answer "yes" or "no" so

Page 15924

1 the court reporter can take it down.

2 A. I have had an opportunity to review the Tadic

3 case in its entirety, and I'm familiar with the

4 sentence that was determined at the end of the

5 proceedings. The court applied in that particular

6 case, I don't know which methods were followed,

7 determined a 20-year imprisonment sentence, and as far

8 as I could see, the sentence was determined in respect

9 of only one criminal offence. Is there anything else?

10 Q. The thing I want to point you to, and it's in

11 paragraph 7, although you don't have a copy of it in

12 front of you in Bosnian, is the part where Judge

13 McDonald said that if a death sentence was authorised,

14 the alternative punishment was 20 years. That's in

15 paragraph 7 of her sentencing judgement. I want to draw

16 a distinction between a court having the discretion to

17 sentence to either death or 20 years, or whether the

18 death sentence first had to be assessed and then it

19 could mitigate the death sentence to 20 years. Do you

20 understand the distinction I'm drawing, Doctor?

21 A. (Nods)

22 Q. Would you explain to the Court how that

23 works?

24 A. The Yugoslav criminal legislation provided

25 for capital punishment, prison, and a fine, a financial

Page 15925

1 type of punishment. The capital punishment could not

2 be determined for only one criminal offence. It always

3 had to be determined together, alternatively, with the

4 prison sentence, whose maximum was 20 years. That was

5 according to the Yugoslav criminal law at the time.

6 Therefore, the courts had an alternative, capital

7 punishment or 20 years imprisonment or, an alternative,

8 a prison sentence ranging from 5 to 15 years in

9 prison.

10 For offenders, it was possible to serve a

11 20-year prison sentence, and it was in a case of

12 amnesty or pardon. So a 20-year prison sentence could

13 be determined only for the most serious types of

14 criminal offences, and that particular sentence,

15 according to the law from 1976, was provided within the

16 Federal Criminal Code of the Socialist Federal Republic

17 of Yugoslavia in respect of only eight criminal

18 offences, whereas in the Republic Criminal Code, the

19 Criminal Code of Republic of Bosnia-Herzegovina, it

20 could be determined only in the respect of five

21 criminal offences.

22 With the presence of democratisation in the

23 former Yugoslavia, at the end of the 1980s, there were

24 a number of amendments done to the Criminal Code and

25 the 20-year prison sentence was deleted in all of the

Page 15926

1 relevant eight cases and later it was also deleted from

2 the Republic Criminal Code, that is, the Criminal Code

3 of the Socialist Republic of Bosnia-Herzegovina in

4 respect of all five criminal offences for which it was

5 provided. Therefore, a 20-year prison sentence could

6 not be determined for any type of criminal offence, and

7 the possibility was left for that type of sentence to

8 be replaced by capital punishment. Is there anything

9 else I can help you with?

10 Q. Yes, there is. I want to focus on the period

11 between May -- the law that was in effect between May

12 and December of 1992. First, in April 1992 by decree,

13 the newly independent Republic of Bosnia-Herzegovina

14 adopted the Federal Criminal Code; is that correct,

15 Doctor?

16 A. Yes, that's correct. On the 11th of April,

17 1992, in accordance with the decree law, the Federal

18 Criminal Code was adopted, and this is the last edition

19 of the Federal Criminal Code that was published before

20 the war. This was adopted as the Republic Criminal

21 Code, of course, with certain amendments. These

22 amendments related to the social system, because the

23 self-managing social system was no longer valid, and

24 also in respect to certain other things having to do

25 with the political system, the name of the country was

Page 15927

1 no longer Socialist Republic of Bosnia-Herzegovina but

2 Republic of Bosnia-Herzegovina.

3 Statements were also made in respect of armed

4 forces and so on. The rest of the text has, by and

5 large, remained the same, especially in regard to

6 punishment and sentencing.

7 Q. Now, let me focus, just for a second, on the

8 death penalty and the 20-year alternative. As I

9 understand it, and I want to make sure that everyone is

10 clear on this, that a court could, if the death penalty

11 was authorised by law, could assess the death penalty

12 and then immediately reduce it to 20 years; is that

13 correct?

14 A. Yes, that is correct. The court always had

15 the possibility to substitute the capital punishment

16 with a 20-year prison sentence. So at the beginning,

17 it was possible for the court to determine a 20-year

18 sentence for all criminal offences for which capital

19 punishment was provided for. The court always had the

20 choice. It could either determine the capital

21 punishment or 20-year prison sentence. That was one

22 possibility. The other possibility was, even if it did

23 determine capital punishment, a higher court, an

24 appeals court could substitute that punishment with a

25 20-year prison sentence, but the first solution was

Page 15928

1 commonly used.

2 Capital punishment was provided for in the

3 former Yugoslavia for a large number of cases as some

4 kind of prevention; however, the criminal punishment in

5 Yugoslavia was not imposed very often, and it was very

6 rarely executed. I know only of two cases where

7 capital punishment was determined as a sentence and

8 was, indeed, executed.

9 Here, I leave out certain trials that took

10 place in 1970 and 1971, the cases having to do with

11 some terrorist groups and counterrevolutionary

12 activity, endangering of the country and so on. Those

13 were exceptional circumstances and these cases are not

14 relevant.

15 Q. Doctor, if the court did not first impose the

16 death penalty, what was the maximum punishment for any

17 crime, if the death penalty was not actually imposed?

18 Could the ...

19 A. The maximum punishment was 15 years in

20 prison.

21 Q. So long as the court did not impose the death

22 penalty; is that correct?

23 A. Yes.

24 Q. Okay.

25 A. The maximum punishment was 15 years in

Page 15929

1 prison, and the minimum punishment in prison was 15

2 days. That was the range of the prison sentence in the

3 former Yugoslavia. It was not possible to impose a

4 longer prison sentence than 15 years, except for the

5 alternative with the capital punishment, that is, the

6 20-year alternative. If you want me to, I can explain

7 this further on.

8 According to the ideological concept of the

9 Yugoslav criminal legislation, and under the influence

10 of the Yugoslav criminal theory, during the past 20

11 years, the courts were in favour of rehabilitation of

12 the offender, of the convict, because it was widely

13 believed that an offender, a convict, can reform and

14 readapt himself to the society and the family. These

15 long-term prison sentences were avoided, and they were

16 imposed only in respect of the most serious crimes and

17 in exceptional circumstances.

18 Q. Doctor, the sentencing practice then in the

19 former Yugoslavia, if I understand what your last

20 answer was, it was based on rehabilitation and not on

21 punishment for the sake of punishment or to retribution

22 or to make an example of someone; is that correct,

23 Doctor?

24 A. Yes, that is correct. When talking about the

25 purpose of punishment within the Yugoslav criminal law,

Page 15930

1 the dominant position was taken by the functional

2 relation between prevention and retribution. We wanted

3 to influence the offender and give him a chance to

4 rehabilitate. The idea was also to influence others

5 and to prevent commission of similar crimes again.

6 At the legal level, capital punishment did

7 exist for a number of criminal cases, but it had a

8 preventative function.

9 Q. Doctor, at this point, I would like to direct

10 your attention to Article 48 of your Penal Code.

11 Your Honour, that's on page 6 of the typed

12 portion. Just so you know where all these translations

13 came from, by the way, the typed portion was provided

14 to me by from Ms. Residovic, and she had that

15 translated, and the printed portion is out of Professor

16 Bassiouni's book, "Law of the Tribunal."

17 Q. As you know, Professor, all of the defendants

18 here are charged in multiple counts, with different

19 crimes in multiple counts. Under the law of the former

20 Yugoslavia, if someone were charged with multiple

21 counts, more than one crime in the same trial, when it

22 came time to set punishment for those, did the court

23 just set a punishment for each one and add them up, so

24 you may get three years on one case, five years on

25 another, ten years on another, and add them up, and you

Page 15931

1 would come up with 18 years? Or did it have some other

2 system for setting punishment where there is more than

3 one crime in the same trial?

4 A. What you have just mentioned relates to a

5 provision which existed at the time within the Penal

6 Code of the Socialist Federal Republic of Yugoslavia,

7 and it was intended for a so-called concurrence. It's

8 a legal -- theoretical, legal term. I don't know

9 whether it is going to be translated successfully, but

10 this relates to a number of crimes that were committed

11 for one and the same person. The condition was that

12 these crimes were tried at the same time.

13 There were several possibilities for

14 punishment in the former Yugoslavia for that type of

15 criminal transaction. There were three models that

16 were applied. The first one was the so-called model of

17 absorption. The second one, the model of aspiration,

18 and the model of cumulation. These principles were

19 contained within Article 48.

20 According to the system of absorption, when

21 dealing with several criminal offences, if capital

22 punishment was provided for one of the criminal

23 offences encompassed by the indictment, the capital

24 punishment would absorb all other punishment that could

25 have been determined for that type of transaction.

Page 15932

1 According to the same system, if the most severe

2 sentence was 20 years in prison, so that type of

3 sentence would absorb all other sentences.

4 There could have been, for example, five

5 various criminal acts and five sentences to be

6 determined, and if the most severe sentence was 20

7 years of punishment, it would absorb all other

8 sentences. This is in order to avoid serving long-term

9 prison sentences, and this was in accordance with the

10 principle of the socialist system at the time, that

11 there was always hope and that the person could always

12 reform and that the person could eventually return to

13 his environment and lead a normal life.

14 The second model that was applied at the

15 criminal system of the former Yugoslavia was the model

16 of aspiration. Aspirations regards, really, connecting

17 with the idea of making the sentence harsher. For each

18 particular offence, the court would determine a

19 sentence, and then at the end, it would determine, it

20 would impose only one sentence. According to the

21 system of aspiration, if there were, for example, three

22 criminal offences that were committed, and the three

23 sentences, let's say three, five, and seven years in

24 prison, according to the system of accumulation applied

25 by certain countries, that would mean that the person

Page 15933

1 would serve 27 years. According to our system, this

2 would have been 15 years in prison. That is the

3 maximum prison sentence that could be imposed according

4 to the law. There could have been, for example, 20

5 various criminal acts, but the maximum penalty would be

6 15 years in prison, because that was the longest prison

7 sentence that was provided for in our system.

8 This method was applied for other criminal

9 offences as well, for less severe criminal offences,

10 for petty theft, for example, and similar types of

11 offences. It was possible for example, for a young

12 offender to spend three years committing such criminal

13 offences, and he could have committed, I don't know,

14 100 petty thefts, so the maximum prison sentence for

15 that type of offence would be 8 years.

16 According to that principle, the sentence,

17 the final sentence, had to be higher than the maximum

18 sentence, maximum individual sentence. If, for

19 example, the sentences were three, eight, nine, and ten

20 years, so the maximum sentence could be ten years plus

21 one month, up until 15 years in prison. If dealing

22 with criminal offences for which this type of prison

23 sentences were provided for.

24 Therefore, the final sentence had to be one

25 month longer than the longest sentence determined in

Page 15934

1 respect of a particular offence, but it had to be lower

2 than the sum of all these sentences.

3 Q. We talked about, I think yesterday or the day

4 before, about -- I used an example of a particular

5 serial murderer from the United States, a man named

6 Theodore Bundy. Do you remember our discussion about

7 that?

8 A. Yes.

9 Q. Mr. Bundy had murdered a lot of people over a

10 period of years, throughout the United States. I asked

11 you if the court chose not to assess a death sentence

12 on Mr. Bundy, what would be the maximum punishment that

13 a court could have assessed against Mr. Bundy under

14 Yugoslav law? Do you remember that? The maximum in

15 prison term, if the death sentence was not imposed, and

16 what was that maximum prison term, Doctor?

17 A. According to the Yugoslav legal system, the

18 maximum -- there could have been, for example, a

19 hundred murders, and the capital punishment was

20 provided for each of them. So if capital punishment

21 was not imposed, then the punishment, an alternative,

22 would have been a 20-year prison sentence. For a

23 simple murder, a simple case of homicide or intentional

24 killing as you call it here, there was a prison

25 sentence that was provided for, and it was 15 years.

Page 15935

1 That was the maximum prison sentence.

2 Q. One last question, and I think that I'll be

3 done and the Judges may have some questions and the

4 Prosecutor may have some. Let me direct your attention

5 to Article 142 of the Penal Code. Specifically, I want

6 you to look at the first few words of it, "Whoever

7 should in violation of international law, during war,

8 armed conflict, or occupation," that's the portion I

9 wish you to focus on. Did that law cover acts which

10 would have occurred, say, during a rebellion or an

11 internal armed conflict, or did that just apply to

12 cases of international war? If you want to know the

13 reason I'm asking, I'll tell you.

14 A. I would like to know, yes.

15 Q. In her sentencing decision in the Tadic case,

16 Judge McDonald said that this applies only to

17 international armed conflict, but that by -- that she

18 would look at it in sentencing Mr. Tadic. What I want

19 to get at is whether, in fact, Article 142 just applies

20 in international war or whether it would apply during

21 an armed conflict that was not an international war?

22 A. In the provision of Article 142, whoever is

23 in violation of the international law during the war,

24 armed conflict or occupation, it is -- the internal

25 conflict is never mentioned. This could be interpreted

Page 15936

1 both as either the international or internal conflict.

2 So, I would not agree with the view that this refers

3 only to international armed conflict. I don't think

4 that that is a correct interpretation of this

5 provision.

6 MR. MORAN: Your Honours, because the Court

7 is familiar with his report, and if you have any

8 questions, I'm going to pass the witness. If the Court

9 has some questions, I'm sure he would be happy to

10 answer them, or if the Prosecutor has some.

11 JUDGE JAN: I just want to ask one question.

12 What was the ordinary punishment provided under the

13 Yugoslavian law in respect of wilful murder or wilful

14 killing, the ordinary punishment?

15 THE WITNESS: The ordinary punishment was 5

16 to 15 years in prison. That would be for when you talk

17 about wilful killing in Article 36 of the Criminal

18 Code, it would be the -- I worked on this in 1991.

19 With my students now, we're working on a new draft, but

20 the minimum sentence is five years. The sentence could

21 range from 5 to 15 years for ordinary murder. Now, for

22 aggravated murder, which would be section 2, the

23 minimum sentence would have been 10 years, so that

24 would mean 10 to 15 years or death penalty. In other

25 words, 10 to 15 years or death penalty, which could be

Page 15937

1 substituted by a 20-year prison sentence, either in the

2 first instance or at the appellate level.

3 JUDGE JAN: I don't have this section 32.

4 MR. MORAN: Your Honour, I don't have it

5 either, and we'll provide it. We'll get it to you

6 today.

7 JUDGE JAN: Were there any guidelines

8 provided by the law where death penalty provided that

9 it should not be imposed in such cases?

10 A. You mean the limits in the --

11 JUDGE JAN: The two punishments, death or 20

12 years imprisonment, did the law provide any guidelines

13 in cases where the death penalty should be imposed or

14 in cases where the death penalty should not be imposed,

15 or was it left merely to the discretion of the judge?

16 A. Death penalty is the most serious form of

17 punishment in the Yugoslav Criminal Code, as well as

18 any others, but it had certain limitations. One was

19 the limitation in actually determining it. It was at

20 both the federal level and the federal units which were

21 six, and at one period, eight. It was at one point,

22 part of the constitutional system. In 1974, after the

23 new constitution was adopted, in 1976, a new Criminal

24 Code was passed on 1 July, 1977. At that time, the

25 federal units, which meant six republics and two

Page 15938

1 autonomous provinces which made up the Federal Republic

2 of Yugoslavia, they were supposed to pass their own

3 codes. So as of 1 July, 1977 until 1990, there were,

4 actually, nine laws in force in Yugoslavia, one

5 federal, six republican and two provincial. In 1990,

6 the Republic of Serbia changed its constitution and

7 denied the right of the --

8 JUDGE JAN: You said on the 11th of April,

9 1992, the state of Bosnia-Herzegovina adopted a Federal

10 Criminal Code. We are more interested with the Federal

11 Criminal Code than the earlier laws.

12 A. Yes, that is correct.

13 JUDGE JAN: Under the Federal Criminal Code,

14 because all these offences with which the accused are

15 charged were committed after the 11th of April.

16 A. Yes.

17 JUDGE JAN: That's what I wanted to find

18 out. What was the position under the federal criminal

19 law?

20 A. In the federal criminal law, in the

21 provisions of Article 37, the death penalty was

22 regulated. In section 1, it says that the death

23 penalty cannot be prescribed by the republican or

24 provincial legislatures as the main punishment for the

25 criminal act. In other words, it always had to be in

Page 15939

1 the alternative with a prison sentence, either a

2 20-year sentence or a 15-year sentence.

3 JUDGE JAN: In Article 37, it talks about a

4 serious crime. How do you distinguish it as far as

5 murder is concerned? It is serious or not serious.

6 Murder is murder.

7 A. In Article 37, the death penalty -- again,

8 let me -- this is a limitation in determining. Now,

9 this would be part of the limitation of how it was

10 going to be passed.

11 JUDGE JAN: Thank you.

12 A. The death penalty could be passed only in the

13 most serious cases of criminal acts, which are provided

14 for in the law, which means that the federal or

15 republican legislator had to, that is, the people who

16 worked on it, they had to assess through the concept of

17 abstract social danger, whether a case merits to be

18 considered the most serious crime. So my colleagues,

19 experts, were the ones who worked on these laws and

20 determined the abstract, the imagined danger to

21 society. On the basis of that, certain criminal acts

22 were construed and the punishments determined. I can

23 tell you for an example, in the republican law, in

24 section 2 for murder, death penalty or minimum sentence

25 of 15 years. One of the examples that they give,

Page 15940

1 whoever kills someone in a brutal way merits that

2 penalty.

3 What does it mean, "cruel and brutal way"?

4 Let's say that a victim was tortured for an hour or a

5 couple of hours, he was subjected to pain and

6 suffering, or if the murder was committed, let's say

7 that somebody wants to kill their spouse or their

8 parents, and they may tell them that they will be

9 giving them medicine, whereas, they would give them

10 poison, and the victim is not aware that he or she is

11 being killed. They are not aware of what is happening

12 to them and are unable to defend themselves. They

13 trusted them. So for a case like that, the republican

14 law provides the death penalty.

15 Your Honour, I don't know if I understood you

16 correctly, the other provisions -- the death penalty

17 could not be given particular categories for criminal

18 acts.

19 JUDGE KARIBI-WHYTE: Let's go over this. Do

20 you still have the death penalty as a form of

21 punishment?

22 A. Can you specify which state do you have in

23 mind, which country?

24 JUDGE KARIBI-WHYTE: Well, in the Republic of

25 Yugoslavia, the former -- yes, is this still a form of

Page 15941

1 punishment in the former Republic of Yugoslavia?

2 A. Your Honour, I must admit to you that I'm not

3 familiar with the new legislation of the current

4 Federal Republic of Yugoslavia which concerns the two

5 republics. I'm not abreast with the developments

6 there. In the last eight years, I have not been in

7 that country. I can maybe tell you about what is

8 happening in Slovenia. The death penalty has been

9 abolished, as well as in Croatia, and in

10 Bosnia-Herzegovina, the new law has not been adopted

11 yet, but it envisages also abolishment.

12 JUDGE KARIBI-WHYTE: From your explanations,

13 you have two situations where 20 years could be

14 substituted for the death penalty. Apart from that,

15 you have minimum sentences. No one could serve a term

16 below 15 days and nobody could be punished for a period

17 beyond 15 years. These are minimum sentences under the

18 Republic of Yugoslavia codes; is that not so?

19 A. Yes, that is correct. Let me clarify one

20 point here. The regular legal framework of the

21 Yugoslav legislation regarding imprisonment ranged from

22 15 days to 15 years. That was the absolute -- the

23 general minimum was 15 days, and the general maximum

24 was 15 years. The prison sentence of 20 years was an

25 exception, which was provided for in the law as a

Page 15942

1 sentence for certain individual cases. This was both

2 in the federal and republican legislations. But I

3 pointed out that on 28 June, 1990, the eight instances

4 in which the death penalty -- for which the death

5 penalty was provided were deleted. They were

6 subsequently deleted from the republican law as well,

7 so that at the time when the war began, there was no

8 provision for a 20-year sentence in any legal

9 provision, in any of the laws in the former

10 Yugoslavia. There was only the 20-year prison sentence

11 as the alternative to the death penalty.

12 The legislators also had to provide a

13 specific legal framework for each individual crime.

14 Let's say for a rape, the framework was 1 to 10 years,

15 and this was the guideline for the courts. The range

16 would have been 1 to 10 years. They couldn't have gone

17 through that ceiling to 11 years, even though the

18 general maximum was 15 years. That was the case then

19 and it is so now.

20 JUDGE KARIBI-WHYTE: What I'm trying to

21 stress is it appears that you adopt a provision of

22 maximum sentences and minimum sentences. The

23 sentencing principles of the Code adopt such a policy

24 that you could not sentence for more than so many years

25 and not less than so many years. It is only in respect

Page 15943

1 of when you substitute for the death penalty in that

2 singular case, that you reduce this 20-year period. Is

3 that the interpretation of the policy of your Code?

4 A. Yes. In other words, the death penalty could

5 never be imposed as a single punishment for any

6 criminal offence. It always had to be stated

7 alternatively with the prison sentence. For example,

8 such and such criminal offences will be punished with

9 either the death penalty or a prison sentence. It

10 meant that a court could impose a death penalty or ten

11 years in prison, for example, or six, if it chose to do

12 so. But if it opted for a death penalty, for that

13 particular offender, that type of punishment could be

14 substituted with a 20-year prison sentence.

15 Finally, if the court chose to impose a death

16 penalty without substituting it for a 20-year prison

17 sentence, very often that death penalty was commuted to

18 a 20-year prison sentence by a higher instance court.

19 I believe I've been clear enough.

20 JUDGE KARIBI-WHYTE: One thing that bothers

21 me, whereas a minimum sentence might be mandatory, you

22 do not think a maximum sentence is mandatory. If you

23 have to punish for 15 years, you need not, but you

24 could not exceed that. So it's not mandatory to that

25 extent. Or, as you've just said, if you substitute

Page 15944

1 imprisonment in view of the death penalty, you need not

2 sentence a person to 20 years. You could sentence him

3 for less.

4 A. Let me answer the last part of your question

5 first. The death penalty could not be substituted for

6 a 10-year prison sentence. However, if the minimum

7 prison sentence for a particular criminal offence was 5

8 years or death penalty, then the court could -- was the

9 range of 5 to 15 years in prison, or death penalty in

10 the alternative.

11 JUDGE KARIBI-WHYTE: Is the minimum mandatory

12 you could not go below that. That is what I'm saying.

13 If it is a mandatory minimum sentence, it means you

14 cannot punish for less than 5 years or you cannot

15 punish for less than 15 days. If it is not mandatory,

16 you have a wide scope within which you can punish. And

17 similarly, except you said 15 years is mandatory, you

18 cannot go beyond 15 years, then you say that you cannot

19 punish anybody for more than 15 years. But when you

20 say for five years, if it is that punishment, then you

21 cannot go below that.

22 A. Maybe I was not clear enough. Under the

23 criminal legislation in the former Yugoslavia, there

24 was not a fixed punishment that was provided for any

25 criminal offence. I mean, you could not simply have a

Page 15945

1 3-year prison sentence for a particular criminal

2 offence. There was always a so-called regular criminal

3 framework inside of which a sentence could be imposed.

4 There were minima and there were maximums, and the

5 general maximum was 15 years.

6 In a specific case of murder, for example,

7 the court had the possibility of imposing a sentence

8 from 5 to 15 years in prison. That was the so-called

9 regular criminal framework. You asked whether it could

10 go below that framework. Yes. If certain legal

11 criteria have been met, of course, the court could

12 impose a less harsh sentence, and there were legal

13 provisions that regulated that type of punishment.

14 This was called mitigation of sentence, but it all went

15 in accordance with the legal principles and legal

16 provisions. It could also aggravate the sentence, that

17 is, impose a more severe sentence.

18 There are lots of various bases on which the

19 court could go below the minimum of a prescribed

20 sentence, and this was called mitigation of sentence.

21 Also, there was only one basis where the court could

22 impose a more severe sentence than the one provided

23 for in a specific crime. This was in the case of

24 multiple offenders, and of potential multiple

25 delinquents. Of course, there were very strict

Page 15946

1 conditions for the court to apply a more severe

2 sentence. This was the only case, that is the case of

3 multiple offenders.

4 The conditions set for this type of sentence

5 were set out in a cumulative way. Everything had to be

6 fulfilled before a court can impose a more severe

7 sentence. This is why it happened, actually, very

8 rarely.

9 JUDGE KARIBI-WHYTE: We're trying to

10 separate, perhaps, the practise of the courts, and the

11 statutory provisions which make certain provisions for

12 sentencing. It appears here, and I don't know about

13 Article 39, but it talks about somebody talk not being

14 imprisoned for not less than 15 days. Nothing stops a

15 judge for imprisoning a person for 7 days. You don't

16 have to make it 15 days if you do not think that is

17 necessary to teach a person a lesson. But if it is

18 mandatory and it has to be 15 days, you can't go below

19 that.

20 MR. MORAN: Your Honour, you might refer him

21 to Articles 42 and 43. That talks about going below

22 the statutory minimum, Articles 42 and 43.

23 JUDGE ODIO-BENITO: Doctor, excuse me, may I

24 pose a question to you, Doctor?

25 A. Of course.

Page 15947

1 JUDGE ODIO-BENITO: In your expert opinion,

2 is there any difference between an ordinary crime and a

3 war crime regarding the punishment of the perpetrator?

4 A. The courts applied the law the same way,

5 regardless of the type of crime. All the

6 circumstances, of course, were taken into account.

7 JUDGE ODIO-BENITO: We have here chapter 16

8 and the different kinds of crimes, war crimes, are

9 included. We have here some important differences.

10 For instance, genocide war crimes against a human

11 population, all of them receive a prison term no less

12 than 5 years or capital punishment, only these two

13 parameters.

14 A. While assessing or evaluating the punishment,

15 the court takes into account the specific criminal

16 offence and the specific offender, perpetrator, and, of

17 course, the legal provisions as regards punishment. In

18 the case that you have mentioned, the punishment is the

19 same as in the case of an aggravated murder. The court

20 would apply the law in the same way, regardless of the

21 nature and the type of criminal offence. You are faced

22 with a criminal offence. You have to determine what

23 the circumstances are. You have to pose a valid legal

24 qualification of a particular criminal offence, and you

25 have to take into account all relevant circumstances

Page 15948

1 which might influence the type of sentence within the

2 legal framework that is provided for that particular

3 criminal offence.

4 Therefore, the court has to assess the

5 personality of the offender in its entirety and to

6 evaluate the circumstances of the commission of the

7 criminal offence. On the basis of that, it reaches its

8 decision as regards the punishment. Aside from that,

9 it could not go outside the legal framework. The

10 specific criminal offence, the type of criminal

11 offence, was not important in and of itself. There

12 were, of course, pressures which could be exerted on

13 the court, but the court always had to apply relevant,

14 legal provisions and could not go outside the

15 framework. Of course, there is no judge who likes to

16 see his decisions reversed or quashed by higher

17 instances. So they were quite careful when determining

18 their sentence.

19 JUDGE ODIO-BENITO: You are telling me that

20 for this law, it's the same to be a serial killer or a

21 war criminal, it's the same for the judge applying the

22 law? It's the same, exactly, to punish a serial killer

23 or a war criminal?

24 A. Well, it is possible for the court, for the

25 judge or a particular Trial Chamber to have its

Page 15949

1 objective approach as to whether the perpetrator was a

2 serial killer or a war criminal, but regardless of

3 their intimate conviction, they had to respect the

4 parameters of the punishment that were prescribed for

5 by the law. So regardless of their attitude, their

6 subjective attitude, towards the offender, they had to

7 stick to certain legal parameters. Of course, if they

8 are not careful about how they weigh between their

9 intimate convictions and legal parameters, they could

10 see their decisions quashed by a higher instance.

11 This legal framework always had to be

12 respected, regardless, again, as I say, of the specific

13 criminal offence.

14 JUDGE ODIO-BENITO: Of course the legal

15 parameters have to be respected, but we are talking

16 here of a prison term no less than 5 years or to

17 capital punishment. These are the legal parameters

18 talking about war crimes in your Penal Code; is that

19 correct?

20 A. Yes, that is correct.

21 JUDGE ODIO-BENITO: Thank you, Doctor.

22 JUDGE JAN: Do you have a copy of the Penal

23 Code?

24 MR. MORAN: The entire Penal Code, Your

25 Honour?

Page 15950

1 JUDGE JAN: The section relating to

2 homicides?

3 MR. MORAN: Your Honour, I do not have that.

4 I've been looking for the SFRY Penal Code in English

5 for months. As far as I know, it does not exist.

6 JUDGE JAN: In Article 37(2), that even in

7 the case where the death penalty is provided, it's to

8 be imposed only in extremely hard cases of serious

9 crimes. The guideline is there, 37(2). Have you got a

10 copy of the Penal Code?

11 MR. MORAN: We have numerous copies in

12 Bosnian Serbo-Croatian, but that does neither you, nor

13 I, any good. We have been looking for the Penal Code

14 in English, and we can have individual sections

15 translated, but, frankly, to translate the entire Penal

16 Code would be a Herculean task. The Prosecutor may

17 have done it. We just don't have the resources to do

18 it.

19 JUDGE JAN: As I read this, Article 37(2),

20 the death penalty is not to be imposed ordinarily. It

21 is to be imposed only in the extremely hard cases.

22 MR. MORAN: That is correct, Your Honour, I

23 believe. In fact, if you like, there were two cases

24 that Dr. Tomic told me about where the death penalty

25 was actually applied. If you'd like, he can tell you

Page 15951

1 the facts of those cases.

2 JUDGE JAN: Those were extremely hard cases.

3 So that's the guideline.

4 MR. MORAN: Yes, Your Honour, I concur.

5 JUDGE JAN: Ordinarily, it's not the death

6 penalty. That's why I want to have a look at the Penal

7 Code. What are the penalties provided for?

8 MR. MORAN: For homicide?


10 MR. MORAN: Your Honour, Mr. Karabdic will

11 make a note, we'll get that translated, and we'll get

12 that to the Court as quickly as we can.

13 JUDGE JAN: It's a half reading, because I

14 just got it, the article.

15 MR. MORAN: Yes, Your Honour. We will get

16 those provisions of the individual sections of the

17 Penal Code. We can get those translated, and we can

18 get them to you. If not today, we can get them to you

19 tomorrow, because it is such a -- the task of trying to

20 translate the entire thing is beyond our resources.

21 JUDGE KARIBI-WHYTE: What about Appendix 3 of

22 what you just circulated here? It has Article 143, war

23 crimes against the wounded and ill.

24 MR. MORAN: Yes, Your Honour. We thank

25 Professor Bassiouni for that.

Page 15952

1 JUDGE KARIBI-WHYTE: Now, here, it's fairly

2 clear that you could sentence someone to a prison term

3 of not less than 5 years or to capital punishment.

4 MR. MORAN: Yes, Your Honour.

5 JUDGE KARIBI-WHYTE: So it's in the

6 alternative.

7 MR. MORAN: Yes, Your Honour. On that, I

8 think the Professor might want to talk about that,

9 picking Article 143, the one you used, when it says a

10 prison term of no less than 5 years, whether that could

11 be a 50-year sentence or a 30-year sentence or whether

12 it is 15 years. I think the Professor might want to

13 speak to that.

14 I think also, Judge Odio-Benito, that might

15 have been your question that was not answered.

16 Q. Professor, if I could draw your attention to

17 Article 143, and that's the one that the Presiding

18 Judge was just talking about. Down at the bottom, it

19 says, "Shall be sentenced to a prison term no less than

20 5 years or to capital punishment." When it says "no

21 less than 5 years," could the court assess a 75-year

22 sentence or a 99-year sentence, or was the court

23 limited to a 15-year sentence if it did not impose

24 capital punishment?

25 A. In this case, the legal framework that is

Page 15953

1 provided for punishment, the minimum is 5 years, which

2 means from 5 up to 15 years in prison or,

3 alternatively, a death penalty. The prison term ranged

4 from 5 to 15 years, and the 20-year prison term

5 functioned only as a substitute for a death penalty.

6 There could not be a prison term of, let's say, 16 or

7 17 years. That was the relevant legal framework, that

8 is, the minimum was 5, the maximum was 15 years, or a

9 death penalty in the alternative.

10 Q. Doctor --

11 JUDGE JAN: How do you then explain clause 2

12 of Article 38? That takes the upper limit --

13 A. Which paragraph do you have in mind?

14 JUDGE JAN: Clause 2 of Article 38.

15 A. I don't have a translation.


17 Q. For crime --

18 JUDGE JAN: I'll read it for you. "For

19 crimes for which the death penalty is provided," and

20 Article 43 is one where the death penalty is

21 provided," the court can pronounce imprisonment for a

22 term of 20 years" --

23 MR. MORAN: Judge, we're having a technical

24 problem. We're not getting the English through.

25 That's why he said he didn't have a translation. He's

Page 15954

1 not getting our English.


3 interpretation?

4 MR. MORAN: Yes, Your Honour. Something has

5 happened, if we could check the interpretation.

6 Your Honour, I see he has, apparently, done

7 what I do every day, which is lay my hand down on the

8 panel, and the next thing I am doing is hearing Bosnian

9 through my earphones. I think he has done the same

10 thing.

11 Q. Professor, Judge Jan was directing your

12 attention to Article 38, Section 2 of the Code, which

13 says, "For crimes for which the death penalty is

14 provided, the court can pronounce the term of

15 imprisonment for 20 years."

16 MR. MORAN: Judge Jan, I think you wanted him

17 to explain how that operated; is that correct, Judge?

18 JUDGE KARIBI-WHYTE: This is a different

19 provision from the general, which he says you cannot

20 imprison for more than 15 years.

21 MR. MORAN: Yes, Your Honour.

22 JUDGE KARIBI-WHYTE: That's a separate

23 situation, because under Article 143, as a minimum

24 sentence of 5 years or capital punishment, and that is

25 a provision for which the death penalty is provided.

Page 15955

1 So you can sentence up to 20 years under Article 143,

2 despite the general provision of Articles 37 and 38.

3 MR. MORAN: It's 38(2). I think the

4 Professor will tell you how that worked, how that was

5 interpreted by the Yugoslav courts, because all I have

6 is exactly the same wording that you have.

7 JUDGE JAN: Let's draw his attention to

8 clause 3, going up to 20 years.


10 Q. Professor, could you take a look at Articles

11 38, subsections 2 and 3, and explain to the Judges how

12 that worked, how your courts in the former Yugoslavia,

13 the former SFRY, interpreted those provisions?

14 A. You see under paragraph 1 of Article 38, a

15 general law was given, and it says, "The prison term

16 could not be shorter than 15 days and not longer than

17 15 years." This is the relevant legal framework for

18 this type of criminal offence. Paragraphs 1 and 3 are

19 some kind of -- 2 and 3, I'm sorry, are some kind of

20 exceptions to the general law. In a possibility of

21 prescribing a 20-year prison term was provided as an

22 alternative for the death penalty.

23 The criminal offence that you mentioned from

24 Article 143, for that type of criminal offence, the

25 court could prescribe a prison sentence ranging from 5

Page 15956

1 to 15 years. It could also impose a death penalty, and

2 it could substitute that penalty with a 20-year prison

3 sentence. It had to take into account the personal

4 circumstances of the offender, the circumstances of the

5 case, the general state of the individual, the

6 perpetrator, such as his health state and so on, his

7 personal circumstances and so on, whether his final

8 punishment will be 6 years or a death penalty, that was

9 upon the court to assess. The court, of course, had to

10 take into account all the circumstances that I have

11 mentioned, including the modus of the perpetrators and

12 the consequences that resulted from his commission of

13 the criminal act.

14 So, it has to view all these circumstances in

15 their entirety while assessing the appropriate type of

16 punishment. It had, of course, to take into account

17 the mitigation circumstances and aggravating

18 circumstances. On the basis of the whole of these

19 circumstances and conditions, the court was able to

20 assess an appropriate sentence for a specific

21 perpetrator for a specific criminal offence.

22 As regards the provision from paragraph 3 of

23 Article 38, this is a provision that I have already

24 mentioned. If a criminal offence was committed with

25 premeditation, the sentence prescribed could be up to

Page 15957

1 15 years in prison. It was also a possibility of

2 imposing a 20-year prison term. This particular case

3 happened some time, as I already mentioned, in 1970,

4 1971, and it related to a very specific case, but this

5 is not a relevant case, because we are dealing with

6 completely different cases here. This is a general

7 provision which was of an instructive character as

8 regards to federal legislation and also legislation of

9 the republics. It was used on one particular occasion,

10 and later on, it was established that these provisions

11 were not really relevant and could be used only in very

12 exceptional circumstances. They were no longer

13 necessary as part of the Criminal Code. Later on, they

14 were deleted. They no longer exist in our Criminal

15 Codes. Only this general provision has been retained,

16 which, in practical terms, does not mean a lot.

17 Are you happy with my answer? Do you want me

18 to explain further?

19 JUDGE KARIBI-WHYTE: You say these provisions

20 are deleted, because here we're dealing, largely, with

21 war crimes. Are they not part of the Penal Code?

22 A. If you look carefully at my report, you see

23 that I state it quite clearly, criminal offences for

24 which that punishment was provided. I don't know about

25 the pages. In my version, it is on page 10. It's the

Page 15958

1 Bosnian version. I could, perhaps, draw your attention

2 to the relevant parts of my report, but I need some

3 help with the translation.

4 JUDGE JAN: I have in mind your argument that

5 wanting the lesser sentence than death is by way of

6 mitigation, but here we have a different opinion,

7 because the death sentence is not the ordinary

8 punishment for wilful murder. It's only in extremely

9 serious, hard cases, and then we have this part too of

10 Article 38 that the court can read it as a punishment,

11 maximum punishment of 20 years. I was looking at that

12 from that angle.

13 MR. MORAN: Yes, Your Honour.

14 JUDGE JAN: Your argument is that the

15 conversion of the death penalty into 20 years or 15

16 years, whatever it is, is by way of mitigation.

17 MR. MORAN: Yes, Your Honour. That's the way

18 it was explained to me.

19 JUDGE JAN: It doesn't seem to be borne out

20 by the wording of the statute.

21 MR. MORAN: Your Honour, I think the

22 Professor can talk to that because people --

23 JUDGE JAN: He is talking about the fact that

24 the death penalty is a very real thing, and he is

25 talking about the events that took place in 1971 or

Page 15959

1 1979, or whenever it is.

2 MR. MORAN: Those were pretty brutal but

3 ordinary murders, as he described them to me.

4 JUDGE JAN: Extremely hard cases.

5 MR. MORAN: The way that it was explained to

6 me, and I have been over it with several people, was

7 the way it says in the argument, but if I'm wrong, the

8 Professor can tell me I'm wrong and I'm willing to --

9 he knows more about it than I do.

10 JUDGE KARIBI-WHYTE: Sometimes, the words in

11 the statute themselves are not so ambiguous as to look

12 for other explanations. If a war criminal is to be

13 treated in a particular way, do you think you need

14 somebody else to tell him how to treat him if the

15 statute is fairly clear as to what you should do?

16 MR. MORAN: Well, Your Honour, I don't know

17 about the ...

18 JUDGE KARIBI-WHYTE: If you read Article 143,

19 it's very clear. It does not say more than a war

20 criminal who is wounded and ill, if you treat him in a

21 particular way, it is aggravating circumstances that it

22 appears to look like. How are we supposed to deal with

23 the accused person in a particular way?

24 MR. MORAN: Your Honour, let me see if I'm

25 framing both of your questions right and see if I can

Page 15960

1 frame a question to the Doctor that might help clear

2 both of them up.

3 Q. Let's go to Article 143 for a second, Doctor,

4 where it prescribes a prison term of not less than 5

5 years or capital punishment. Then when you go back to

6 Article 37(2) it talks about --

7 JUDGE JAN: 38.


9 Q. 38(2)? Okay. 38(2), it talks about the

10 court can pronounce a term of imprisonment for 20 years

11 for crimes for which the death penalty is provided.

12 Now, focusing on Article 143, if a person were

13 convicted of Article 143 and the court did not impose a

14 death sentence under the provisions that it's an

15 extremely hard case, what would be the punishment that

16 the court could assess, and I'd like you to focus, in

17 your explanation, on the interpretation of Article

18 38(2) by your courts. That's what you're asking.

19 JUDGE KARIBI-WHYTE: Let's break here. We'll

20 come back at 12.00 so that he might have to think about

21 it.

22 MR. MORAN: Yes, Your Honour. I'll let him

23 think about it.

24 JUDGE JAN: Clauses 2 and 3 are exceptions to

25 clause 1.

Page 15961

1 MR. MORAN: Yes, Your Honour.

2 --- Recess taken at 11.33 a.m.

3 --- On resuming at 12.07 p.m.

4 MR. MORAN: Your Honour, we have found a

5 translation that I didn't know we had of the Bosnian

6 Penal Code regarding murder. We're waiting for the

7 copier to warm up. It's just been handed to me, Judge,

8 so with the usher's assistance, I believe we have

9 sufficient copies for the Prosecutor. In fact, it

10 appears to be an OTP document.

11 MS. McHENRY: I was going to tell Defence

12 counsel I believe we had found at least Article 36, the

13 homicide section of the Bosnian.

14 MR. MORAN: That may be what we're passing

15 out. I didn't keep a copy. If the usher would be so

16 good as to give me a copy so that I know what we're

17 introducing.

18 Your Honour, I think that may answer some of

19 your questions. Over the break, we had a discussion

20 with the Professor, and I think there was a

21 miscommunication on -- he didn't understand the

22 question that was being asked or maybe I didn't phrase

23 it as artfully as I could have.

24 Q. Professor, could you explain to the Judges

25 Article 38(2), how that was interpreted by the courts

Page 15962

1 of the former Yugoslavia?

2 A. Regarding Article 38(2), which provides for

3 an exceptional possibility of pronouncing a term of

4 imprisonment of 20 years, this was something that the

5 court could take into account and select between a

6 prison sentence of 5 to 15 years in prison and the

7 death penalty. The court could compromise a solution,

8 so it could pronounce a sentence of that length, taking

9 into consideration the purpose, the general and special

10 prevention, and if it would find that the death

11 penalty, in the context of a specific crime which had

12 been committed, and the personal traits or

13 characteristics of the perpetrators, and would come to

14 a determination that the death penalty should not

15 apply, but would also find that a 15-year prison term

16 would not be appropriate, then this was a safety valve,

17 of sorts, to avoid the death penalty and that the death

18 penalty be confined to the most extreme cases, and yet

19 the 15-year prison term would not be appropriate

20 either.

21 This is why there were very, very few death

22 penalties which were pronounced in Yugoslavia, and even

23 if they were pronounced, they were commuted to 20-year

24 sentences. As I mentioned previously, I am aware of

25 only two death penalties which were not commuted and

Page 15963

1 for which a pardon was not granted eventually.

2 MR. MORAN: Your Honours, does that answer

3 your question? Judge Jan, I think you were the one who

4 posed that question. Does that answer your question?

5 JUDGE JAN: Yes, it does.

6 MR. MORAN: As long as it's to your

7 satisfaction, because that's why we're here on this.

8 Q. Article 38(3) talks about a crime committed

9 with intentional fault. The prison term of up to 15

10 years is provided. A 20-year imprisonment can also be

11 pronounced in severe forms of such crime. How did the

12 courts of Yugoslavia interpret that provision? What

13 was the interpretation that was given to it by the

14 courts?

15 A. I mentioned earlier that this was a provision

16 in law that was present for both the federal and

17 republican laws. In section 3, it says, "For the crime

18 committed with intentional fault, the prison term of up

19 to 15 years is provided." Let's say for a murder, for

20 severe forms of such a crime, a 20-year prison term can

21 also be pronounced. This means the legislature, let's

22 say the federal legislature, for a specific case, or

23 the republican parliament of the former Yugoslavia

24 could also adopt such a law.

25 When this law was changed in the mid '70s, it

Page 15964

1 looked attractive because it appeared flexible with

2 respect to certain abstract concepts of crime.

3 However, the practice showed that this provision

4 remained a dead letter. Even in cases for which it was

5 pronounced, it was never applied. I can give you an

6 example of eight criminal acts for which the 20-year

7 prison sentence was prescribed. It would be a minimum

8 of 5 years or a maximum of 20. So it would be 5 to 15

9 or 20, and 16, 17, or 18 were not an option.

10 If you want me to, I can give you those

11 eight -- they were very serious criminal acts. These

12 are all qualified acts, and they were aggravated acts.

13 This was a qualified case of disclosure of a state

14 secret, so it would be a minimum of 5 and a maximum of

15 20 years in prison. Then the most serious acts of

16 falsification of money or symbols of value, and very

17 serious cases of plunder, issuing unpayable cheques,

18 plunder by misuse of professional position, or plunder

19 of weapon or parts of fighting instruments, and,

20 finally, serious cases related to endangering air

21 traffic. That meant kidnapping an aircraft and

22 endangering the safety of a flight. This was something

23 that was topical in the '70s, and there were very

24 serious consequences of that, which is why the federal

25 legislature provided special provisions for prison

Page 15965

1 terms of up to 20 years.

2 On June 28, 1990, new amendments were

3 adopted, and the 20-year prison sentence with respect

4 to these crimes was struck. Even though the general

5 provision of the law was kept, it is only a general

6 provision, and it allows a possibility for the

7 legislature to prescribe, but not for a judge to

8 apply. In other words, this provision is more of an

9 instruction for the legislature, regardless of whether

10 it is federal or republican, and it opens a possibility

11 for them.

12 But with respect to the Criminal Code of the

13 then Socialist Republic of Bosnia and Herzegovina, such

14 a sentence was only provided for five crimes, again,

15 serious crimes against the health of people, the making

16 of false papers of value, plunder, serious crimes

17 against security of people and properties, and serious

18 crimes against safety of public traffic.

19 For instance, when there was a very serious

20 traffic accident, and let's say the driver was taking

21 school children on an outing. They sit down to relax.

22 He had something to drink and then had an accident, and

23 12 children were killed, or something like that.

24 However, through the amendments of the republican laws

25 of July 1991, such crimes, that is, such a 20-year

Page 15966

1 sentence was struck. Some of the acts -- the robbery

2 was completely struck, whereas, again, those 20-year

3 sentences were also struck, and only the general

4 provision remained, so that this alternative

5 disappeared, the maximum prison sentence or the 20-year

6 sentence.

7 Q. During the period we're focusing on, which is

8 between May and December 1992, are you saying that

9 there were no crimes in the former Yugoslavia, in BH,

10 Bosnia-Herzegovina, the Republic of Bosnia-Herzegovina,

11 for which Article 38(3), the 20-year sentence, applied;

12 is that correct, Doctor?

13 A. Yes, that is correct. I have a copy of both

14 the Federal Criminal Code and the Republic Criminal

15 Code. I can point out the specific or relevant part.

16 You will see that there is no provision for a specific

17 criminal offence for which a 20-year prison term is

18 prescribed. That simply did not function in practice

19 at the time. The only thing that remained was a

20 20-year prison sentence as a substitute for a death

21 penalty. This was in accordance with the principle of

22 the rehabilitation.

23 MR. MORAN: If the Court has no further

24 questions, or if there's nothing else I need to

25 clarify, I would be happy to pass the witness.

Page 15967

1 JUDGE KARIBI-WHYTE: Any questions?

2 JUDGE JAN: We have an expert in the criminal

3 law.

4 MR. MORAN: Your Honour, we thought about

5 using her as the expert, but we thought that that might

6 create a slight conflict.

7 MS. RESIDOVIC: Your Honours, I hope that I

8 will be of some assistance to return you a favour,

9 because I have learned a lot from you. I hope I can

10 teach you something from our legal system and

11 practice.

12 Cross-examined by Ms. Residovic:

13 Q. Thank you for allowing me to proceed. Good

14 morning, Dr. Tomic.

15 A. Good morning.

16 Q. My name is Edina Residovic, and I represent

17 Mr. Zejnil Delalic. Is it true, Professor, that we

18 have known each other for a very long time?

19 A. Yes, it's true.

20 Q. We need not mention the exact number of years

21 we've known each other. Professor, I'm sure you know

22 that the Rules of this Tribunal, that is, the provision

23 contained within Article 101, paragraph 3, that the

24 possibility was given to this Criminal Tribunal to have

25 in mind, to take into account, while assessing the

Page 15968

1 appropriate penalty, the usual practice of determining

2 sentences before the courts in the former Yugoslavia.

3 Are you familiar with this particular provision?

4 A. Yes, I am.

5 Q. Professor, I will, therefore, ask you to

6 discuss this particular issue so that we can facilitate

7 the task of this Tribunal, that is, the determination

8 of sentence and a possible pronouncement of sentence,

9 if it should decide that one of the accused has,

10 indeed, committed a criminal offence.

11 Professor, could we kindly go back to the

12 discussion you had with my learned colleague Mr. Tom

13 Moran in connection with the application of Article 38

14 of the general part. I think we should tell this Court

15 that there are two parts in our criminal legislation.

16 There is the general part, which is intended for courts

17 and the legislator, and the second part which analyses

18 various specific criminal acts; is that correct?

19 A. Yes, it is.

20 Q. These individual criminal acts in the former

21 Yugoslavia, including Bosnia and Herzegovina, were

22 divided in two parts, that is, the Federal Criminal

23 Code and the Criminal Code of the six Republics?

24 A. Yes, that's correct.

25 Q. To be more specific, criminal acts against

Page 15969

1 international law were provided for in the Federal

2 Criminal Code, whereas, murder, theft, and so on were

3 provided for in the Criminal Codes of various

4 Republics?

5 A. Yes, that is correct.

6 Q. Let us repeat the provisions contained in

7 Article 38, while bearing in mind the concrete

8 application of these provisions before the courts in

9 the former Yugoslavia. The courts in the former

10 Yugoslavia, while assessing penalties, were bound by

11 the framework that was prescribed for the relevant

12 criminal offence?

13 A. That is correct, yes.

14 Q. If, for a particular crime, there was a

15 minimum sentence that was prescribed, then the maximum

16 was 15 years in prison; is that correct?

17 A. Yes, but it was not necessarily so, because

18 the general maximum was 15 years in prison.

19 Q. Yes, but the legislator could also impose a

20 specific minimum and a specific maximum sentence?

21 A. Yes. For each criminal offence, there was a

22 specific criminal framework in terms of sentencing, and

23 the legislator would use various models while imposing

24 these frameworks, these parameters.

25 For example, there was a so-called closed

Page 15970

1 model of a legal framework. For example, a criminal

2 act carries a sentence from 5 to 10 years in prison.

3 That was a specific minimum that was prescribed for

4 that.

5 Q. I believe this is quite clear for the Court.

6 What it means is that a court could impose, could

7 pronounce, any sentence between 5 and 10 years in

8 prison. However, if that specific maximum was not

9 indicated, was not prescribed, then the court could

10 also pronounce a sentence ranging from 5 up to 15 years

11 in prison. This maximum could never be exceeded,

12 except for exceptional circumstances which were

13 provided for in the law?

14 A. Yes, that is correct. If no mention was made

15 of a specific maximum penalty, then it was thought, it

16 was understood, that the maximum would be the general

17 maximum provided for by our law, that is, the 15 years

18 in prison.

19 Q. Thank you. Judge Jan drew your attention to

20 the provision contained in paragraph 2 of Article 38,

21 which provides for the possibility of substituting the

22 death penalty with a 20-year prison sentence?

23 A. Yes.

24 Q. Could you tell us, please, whether this

25 particular legal provision was, indeed, applied in

Page 15971

1 practice of the Yugoslav courts, in such a way as this

2 was a power of the court that could be used when the

3 court believed that the 15-year prison sentence was not

4 harsh enough and the death penalty was deemed to be too

5 harsh. In that case, the court opted for a 20-year

6 prison sentence?

7 A. Yes. That was a general rule.

8 JUDGE JAN: The death penalty, under Article

9 37 was to be imposed only in extremely hard cases.

10 Therefore, the ordinary punishment would be in cases

11 where the law prescribes a death penalty governed by

12 clause 2 of Article 38. That's what I said.


14 Q. When the word "prescribe" is mentioned, it

15 means that the law is giving the right to the

16 legislator to determine which are these cases, which

17 are the most serious crimes?

18 A. Yes, that is correct.

19 Q. So it is not the right of a judge to

20 determine which crimes are the most serious crimes. A

21 judge could not determine that a particular situation

22 was a situation where the most serious punishment could

23 be imposed?

24 A. Yes, that is correct. No judge could create

25 a criminal offence.

Page 15972

1 Q. Judge Jan asked you something about a murder,

2 a murder is always a murder. Do you remember that

3 question?

4 A. Yes, I do.

5 Q. Is it true to say that, under our republic

6 criminal legislation, a premeditated murder carried a

7 penalty ranging from 5 to 15 years in prison, and that

8 a judge, for a simple premeditated murder, could impose

9 a sentence which fell under this framework, that is, 6,

10 10, 14, or 15 years in prison?

11 A. Yes, that is correct. The maximum was 15

12 years.

13 Q. Is it also true that the legislator, and not

14 the judge, prescribed the most severe cases of murder

15 in which and for which an alternative for the prison

16 sentence was also a death penalty?

17 A. Yes. This was prescribed by the law.

18 Q. You're referring to Article 36, paragraph 2

19 of our Criminal Code?

20 A. Yes, that's correct.

21 Q. It was only in that case, and you have

22 mentioned only two cases of aggravated criminal

23 offences, namely, aggravated murder, murder committed

24 out of revenge, and so on, and only if the facts

25 established for that particular criminal case lead the

Page 15973

1 court to believe that it is this aggravated type of

2 criminal offence that's been committed. Only once that

3 has been established the court can then decide whether

4 to pronounce the most severe prison sentence, that is,

5 the 15 years in prison, or it can opt for a death

6 penalty. Was that the case?

7 A. Yes. That was the case.

8 Q. If the court, in a specific case, decided

9 that the prescribed sentence was not adequate for the

10 seriousness of the case, and if it decided that it

11 should apply the alternative, that is, the prescribed

12 death penalty, is it true, Professor, that at that

13 moment, in that case, the legislator, on the basis of

14 Article 38, paragraph 2 of the Federal Criminal Code,

15 gives him the possibility to substitute that death

16 penalty with a 20-year prison sentence? Is that the

17 correct interpretation and application of legal

18 provisions in our courts?

19 A. Yes. This would be the appropriate

20 application of that provision.

21 Q. Let us review a few articles which were

22 pointed out to you by Judge Odio-Benito, namely,

23 criminal acts provided for in the special section of

24 the Criminal Code, that is, the criminal offences

25 against the international humanitarian law. I believe

Page 15974

1 that the Judges have the translation of Articles 142

2 and 143.

3 Professor, I would kindly ask you to discuss

4 now the application of these provisions, namely, the

5 provisions which carry a prison sentence with an

6 indicated 5-year minimum and the alternative penalty

7 being a death penalty.

8 When the courts in the former Yugoslavia were

9 faced with such a situation, that is, with a necessity

10 to establish that a serious criminal offence was

11 committed, is it true that the court had an alternative

12 of pronouncing a 5-year to 15-year prison sentence,

13 depending on the particular circumstances of the case,

14 of course, or its alternative, to pronounce a death

15 penalty for that particular criminal offence; is that

16 correct, Professor?

17 A. Yes, it is.

18 Q. If our court opted for a prison sentence, it

19 means that it could easily pronounce any sentence

20 ranging from 5 to 15 years in prison; is that correct?

21 A. Yes, it is.

22 Q. However, if the court opted for a death

23 penalty, it had the power, it had the authority, in

24 accordance with general provisions, to replace, to

25 substitute the death penalty with a 20-year prison

Page 15975

1 sentence?

2 A. Yes, that's correct.

3 Q. Professor, you are probably familiar with one

4 such case which was tried before a court in Bosnia and

5 Herzegovina and which took place in 1980 and which was

6 finally adjudicated in 1981?

7 A. Yes, I'm familiar with it. I know which case

8 you have in mind.

9 Q. This was the only case of a war crime that

10 was ever tried before our national court?

11 A. Yes, that's correct.

12 Q. It was a case of a war crime committed

13 against the civilian population in 1941, and it was an

14 aggravated case of that crime. It was committed under

15 exceptionally severe circumstances?

16 A. Yes, that's correct.

17 Q. The male population of one village was

18 killed?

19 A. That's correct.

20 Q. Women were killed and underaged children were

21 also killed?

22 A. Yes, that's correct.

23 Q. Is it true that in that particular case, the

24 first instance court substituted the death penalty with

25 a 15-year prison sentence. And in the case of one of

Page 15976

1 the accused, the death penalty was substituted by a

2 higher instance court with a 20-year prison sentence?

3 A. Yes, that is correct.

4 Q. The court dealt with an exceptionally severe

5 case of murder, including murder of women and under-aged

6 children?

7 A. Yes. It was a very severe case.

8 Q. Yet the court in Bosnia and Herzegovina did

9 not opt for capital punishment?

10 A. That is correct.

11 Q. Professor, in spite of the seriousness of the

12 case, there may be some significant mitigating

13 circumstances which characterise not only the

14 perpetrator but the crime itself?

15 A. Yes, that's correct.

16 Q. When a court finds exceptionally mitigating

17 circumstances, even in the case of such a harsh offence

18 in respect of both the perpetrator and the

19 circumstances of the crime, is it true, Professor, that

20 the court in that case is not bound by the minimum

21 prescribed by the law?

22 A. Yes, that is correct.

23 Q. Therefore, if the circumstances are such in

24 the application of these particular provisions before

25 the courts of Bosnia and Herzegovina, the court had the

Page 15977

1 right to further commute the minimum 5-year sentence

2 and to finally pronounce a 1-year prison sentence; is

3 that correct?

4 A. Yes, that is correct.

5 Q. Therefore, it is the mitigating circumstances

6 that provide the court with the possibility to

7 pronounce a sentence, even in such grave cases, ranging

8 from 1 to 15 years in prison; was that the case?

9 A. Yes.

10 Q. Thank you, Professor. The situation is

11 identical in cases of qualified murders. In the case

12 of a qualified or aggravated murder, mitigating

13 circumstances are also taken into account, and the

14 sentence can be commuted to a 1-year prison sentence;

15 is that correct?

16 A. Yes. The sentence can be reduced. If I can

17 explain, we're dealing with general provisions of the

18 Criminal Code of the former Yugoslavia, which related

19 to any perpetrator and any criminal act.

20 Q. Thank you, Professor. Let me go back to the

21 question asked by Judge Jan, when he asked you whether

22 a murder is not a murder in any case. We have seen

23 very serious cases of murder, and we call them

24 qualified murders in accordance with our legal

25 practice, in accordance with our law?

Page 15978

1 A. Yes, that's correct.

2 Q. However, there are less serious types of

3 murders which we call privileged cases of murder?

4 A. Yes, that is correct.

5 Q. I believe that we are familiar with the

6 institution of unintentional murder --

7 JUDGE JAN: Murder and homicide. All

8 homicides are not murders.

9 MS. RESIDOVIC: Yes. I'm not referring to

10 homicide or I'm not referring to unintentional

11 killing. However, I would like the Professor to

12 explain to us the fact that there are two other types

13 of premeditated murder under our criminal legislation,

14 namely, wilful murder, that is, the case where the

15 perpetrator acted out of his emotions and could not

16 resist committing the crime.

17 Q. Is that correct?

18 A. Yes, it is correct, and there is a sentence

19 that is prescribed for that type of murder.

20 Q. Is it true, Professor, that premeditation is

21 necessary for a person to commit a murder?

22 A. Yes, absolutely.

23 Q. However, it is also possible for a

24 perpetrator to want to intentionally wound someone, and

25 that his intent results in death?

Page 15979

1 A. Yes, that is correct.

2 Q. Is it true then that we have, under our legal

3 system, the institution of infliction of serious bodily

4 harm?

5 A. Yes, that's correct.

6 Q. And a much lesser sentence is prescribed for

7 that type of criminal offence?

8 A. Yes, that is true. For a simple type of

9 murder, a simple type of murder carries a 5-year to

10 15-year prison term. For that specific criminal act

11 that you mentioned, infliction of serious bodily harm

12 which results in death, is different in terms of

13 criminal responsibility. Therefore, the criminal

14 responsibility is assessed differently in view of the

15 consequence that resulted from that type of criminal

16 act, that is, the infliction of bodily harm. The death

17 that resulted is not the result of his premeditation.

18 What the result of his premeditation is the serious

19 bodily harm, however, the death was not premeditated.

20 So in respect of the consequence, the sentence was

21 significantly different, that is, that in that

22 particular case, it ranged from 1 to 10 years in

23 prison, although in the end, because of the

24 consequences, it looks the same, it is not the same

25 case because of the circumstances.

Page 15980

1 Q. You have spent several years analysing these

2 problems. Would you agree with me if I say that the

3 court practice of Bosnia and Herzegovina, which, let me

4 say, was one of the most harsh, most severe in the

5 former Yugoslavia, always took into account the minimum

6 of the prescribed sentence?

7 A. Yes, that is correct. In most cases, the

8 penalties that were pronounced were at the level of the

9 specific minimum that was prescribed for a particular

10 criminal act. Let me give you an example for that. In

11 cases of murder, the usual sentences that were

12 pronounced for a simple murder, the one contained in

13 Article 36 of the Bosnian Criminal Code, the sentences

14 ranged from 6 to 6.5, in spite of the fact that the law

15 prescribes a maximum of 15 years in prison.

16 Q. Thank you.

17 A. In some other cases, the sentences were even

18 less harsh.

19 MS. RESIDOVIC: Thank you, Professor. With

20 the permission of the Court, if the Court believes that

21 these issues have been clarified, I would like to move

22 on to another area which might be of interest in this

23 particular case.

24 Q. In your report, Professor, you make mention

25 of a special institute of our criminal practice and

Page 15981

1 legislation, that is, the mandatory application of a

2 less harsh sentence?

3 A. Yes, that is correct.

4 Q. It is provided in Article 4 of the Criminal

5 Code of the SFRY. Could you tell us what is the basic

6 rule, which law is applied by our courts while

7 pronouncing the sentence according to the principle

8 nulla crimen sine lege, and when applying that

9 principle, are there any exceptions in that regard?

10 MS. McHENRY: May I just clarify, make sure

11 there's not an error, when you said Article 4 of the

12 SFRY, do we have a translation of that or did you mean

13 Article 40?

14 MS. RESIDOVIC: Article 4 of the Criminal

15 Code of the Socialist Federal Republic of Yugoslavia

16 which speaks about the mandatory application of a less

17 harsh criminal legislation.

18 MS. McHENRY: May I ask if any counsel has a

19 translation of that?

20 MS. RESIDOVIC: Since it is not a very long

21 article, I can read it out to you. It is possible that

22 we have the translation, but I will read the text of

23 the article, and on the basis of that, the Professor

24 will provide his interpretation of the article.

25 Q. The title of this article is "The Mandatory

Page 15982

1 Application of a Less Harsh Criminal Law."

2 Paragraph 1: "In respect of the perpetrator of a

3 criminal offence, a Criminal Code which was valid at

4 the relevant times shall be applied." Paragraph 2

5 reads as follows: "If, after the commission of the

6 criminal act, the criminal law was amended on one or

7 several occasions, the criminal law which is less harsh

8 in respect of the perpetrator shall apply."

9 Professor, would you kindly explain the

10 meaning of this provision and tell us how it was

11 applied in practice? I have read the relevant text.

12 Let me ask you a specific question: Which law is

13 applied by the court when assessing or pronouncing the

14 sentence?

15 A. As you said, paragraph 1 of Article 4

16 provides for a general principle in respect of the

17 perpetrator of the criminal act in accordance with the

18 Yugoslav criminal law. The law that was always

19 applied, that had to be applied, was the law that was

20 valid, that was in force at the time of the commission

21 of the criminal act. That was a general principle, and

22 there was only one exception to that rule, to this

23 basic provision of the Yugoslav criminal law, and that

24 case is provided for in paragraph 2 of the same

25 article, Article 4, where the federal legislator, on

Page 15983

1 the basis of a constitutional provision, and it's the

2 federal constitution that I have in mind and Article

3 211, paragraph 3, Article 211, paragraph 3 of the

4 constitution of the Socialist Federal Republic of

5 Yugoslavia, on the basis of that provision, the

6 legislator had an obligation to prescribe a provision

7 relating to the mandatory application of a less harsh

8 law.

9 Q. Let me ask you --

10 A. Will you please allow me to finish? From the

11 time of the commission of the criminal act until a

12 final judgement is reached, if, during that period of

13 time, the law was amended on one or several occasions,

14 the court was bound to apply the law which was less

15 harsh in respect of the perpetrator. That was a

16 constitutional obligation. If the court did not act

17 accordingly, it would commit a serious mistake, and its

18 verdict would eventually be quashed.

19 Q. Thank you, Professor. I think you have

20 answered my question. This mandatory application of a

21 less harsh sentence was mandatory for courts?

22 A. Yes, absolutely.

23 Q. Since our Rules, the Rules of the Tribunal,

24 provide for an obligation to take the national practice

25 into account, I would like you to dwell on the practice

Page 15984

1 of our courts, that is, the courts in the former

2 Yugoslavia. I will ask you to comment on what I will

3 say, to confirm it or not.

4 Is the true, Professor, that if a new law

5 ceased or stopped to qualify a particular act as a

6 criminal act, then the court deemed that that

7 particular law was a less harsh law for the

8 perpetrator?

9 A. Yes, that is correct.

10 Q. Is it correct, Professor, that the courts

11 deemed and applied, as a less harsh law, that law which

12 provided for a less harsh sentence, a prison sentence

13 instead of a death penalty, a fine instead of a prison

14 sentence? Was that considered to be a less harsh law?

15 A. Yes, it is.

16 Q. Professor, the law that reduced, that deleted

17 the minimum sentence was also considered to be a less

18 harsh law in that respect?

19 A. Yes, that is correct.

20 Q. Is it true that the courts would accept, as a

21 less harsh law, that law which provided for the

22 possibility of the perpetrator to be exempt from

23 punishment?

24 A. Yes, that is correct.

25 Q. However, Professor, there were cases of a law

Page 15985

1 being passed, a law that abolished a specific minimum

2 and increased, at the same time, the specific maximum

3 for a particular criminal offence. I would like to

4 know how courts treated that particular law.

5 For example, the former provision was 3 to 10

6 years in prison, and later on, the law established a

7 15-year prison sentence. Could you explain to us how

8 that particular law was then applied by courts in terms

9 of this lesser minimum and higher maximum sentence?

10 A. In these cases, the court practice, used as a

11 legal framework, thought that the legal framework was

12 unnecessarily too narrow. When a new law was passed

13 which made it wider, that particular framework --

14 sorry, just let me finish.

15 If the previous situation was such that the

16 perpetrator would be sentenced from 1 to 10 years in

17 prison, and the current situation provided for the

18 possibility of sentencing the perpetrator to 10 years

19 in prison, in that case, the law that provided for a

20 minimum sentence was applied. Of course, it is

21 understood that the specific maximums indicated were

22 the same.

23 If, however, one law provided for a higher

24 specific minimum and a lower specific maximum, in that

25 case, that law could not be considered to be less

Page 15986

1 harsh.

2 Q. I think you've made a mistake, a higher

3 specific maximum?

4 A. Yes. We are now discussing the application

5 of a less harsh law. In any case, the lower specific

6 minimum was considered to be the most important. At

7 the same time, the specific maximum also had its

8 significance.

9 If, for example, the court should decide to

10 apply the law carrying a lower specific minimum and a

11 higher specific maximum, in that case, the sentence

12 that was eventually pronounced could not exceed the

13 specific maximum that was provided for in the law that

14 was found to be more harsh for the perpetrator,

15 because, in doing so, the court would have made a

16 judicial mistake.

17 Q. Before we break for lunch, I would kindly ask

18 you to spend a little more time in explaining this.

19 For example, if, for a specific criminal act which

20 previously carried a minimum of 3 and a maximum of 10

21 years, a minimum of 1 and a maximum of 15 years is now

22 established, the court, in practical application of

23 that particular law, could pronounce a 1-year sentence,

24 because it is a less harsh sentence than the 3-year

25 sentence, according to the new law. But, however, it

Page 15987

1 could not pronounce a sentence that was higher than 10

2 years in prison, regardless of the possibility provided

3 for in the new law which prescribed the maximum 15

4 years, because this would have been a more harsh

5 sentence. The court would have applied a more harsh

6 law, and it would have been an inappropriate

7 application of the relevant provisions.

8 A. Yes, that is correct.

9 Q. We have spent some time --

10 JUDGE JAN: I'm not sure it's relevant.

11 There are many countries there is a fundamental right

12 that you can't be given a sentence that was -- I don't

13 think it's really important for us. In many countries,

14 there is a fundamental right that you can't be given a

15 harsher sentence than what was described at the time

16 when the offence was committed, although the courts

17 might take into account that the minimum has been done

18 away with.

19 MS. RESIDOVIC: After the break, I'll try to

20 stick to the relevant portions, but let me first just

21 try to finish this particular issue.

22 Q. Professor, if no death penalty is provided

23 for a specific act, is it true that the 20-year prison

24 sentence could not be pronounced either?

25 A. Yes, that is true. That was --

Page 15988

1 Q. So if, for example, life imprisonment is

2 provided for and there is no death penalty, what would

3 be the maximum sentence that could be pronounced to the

4 perpetrator? Is it 15 years?

5 A. Yes. It's 15 years.

6 MS. RESIDOVIC: Thank you very much,

7 Professor. After the break, I will discuss mitigating

8 and aggravating circumstances in relation to the

9 personality of the offender. However, I will try to be

10 brief.

11 JUDGE KARIBI-WHYTE: Thank you very much. I

12 think we can now break and reassemble at 2.30.

13 --- Luncheon recess taken at 1.03 p.m.













Page 15989

1 --- On resuming at 2.35 p.m.

2 (The witness entered court)

3 JUDGE KARIBI-WHYTE: Ms. Residovic, you are

4 still on your exercise. Actually, I thought it would

5 be better if you try to lead evidence or make

6 cross-examinations about mitigation and things like

7 that. We are not that confused about the position in

8 Yugoslavia. It's not as obscure as that. Fortunately,

9 we've had an opportunity to look at the laws, and we

10 can make our own deductions.

11 MS. RESIDOVIC: Your Honours, as I pointed

12 out, I'm going to just limit myself to Rule 101 of our

13 Rules of Procedures and Evidence is instructing us to

14 do. During the break, I think we finally managed to

15 get an English translation of the Bosnian Criminal

16 Code, and I hope that by tomorrow I may be able to

17 provide you with a copy of the full text of the law so

18 that you may be able to use it in the future, if you so

19 desire.

20 JUDGE KARIBI-WHYTE: Thank you very much.

21 That will be very helpful.


23 Q. Professor, as I just pointed out to Their

24 Honours, I would like to take you back to what Rule 101

25 of this Tribunal is referring to, in other words, to

Page 15990

1 see what the general practice is regarding prison

2 sentences in the courts of the former Yugoslavia and

3 today's Bosnia-Herzegovina.

4 Up until now, we have talked about legal

5 provisions, about the frameworks, and the limits

6 imposed upon the courts. Now I would like to request

7 that you help the Tribunal understand what the practice

8 was in our courts and what they were taking into

9 account when passing sentences; do you agree with me?

10 A. Yes, I do.

11 Q. Along with our motions, we provided to the

12 Tribunal, and I believe that the Prosecution did as

13 well, we provided the translation of Articles 41 and

14 42, that is, the translation of articles, and I hope

15 you can agree with me, which provide the general rules

16 for the determination of sentence and the mitigating

17 circumstances which would allow the sentences to be

18 lower than provided by in the law. We are not going to

19 dwell on the text of the law, because we are familiar

20 with it by now. But, Professor, can you tell me, is it

21 true that one of the circumstances which courts

22 consider when determining a specific sentence to a

23 specific perpetrator is the level of his criminal

24 responsibility?

25 A. Yes. The degree of criminal responsibility

Page 15991

1 is the first criteria in that article regarding the

2 determination of individual sentence.

3 Q. Our courts judge whether he was fully

4 responsible or partially responsible, and the criteria

5 are set out in our law; is that correct?

6 A. Yes, it is. This is all within the framework

7 of the degree of criminal responsibility. First, the

8 degree of accountability was used, whether it was

9 diminished responsibility or the responsibility was

10 completely lacking.

11 Q. Professor, we will not talk about the lack of

12 responsibility, because that is not the case that would

13 carry any sentence; is that correct?

14 A. Yes, that is correct, because a person with a

15 lack of responsibility does not have any criminal

16 responsibility. They may be liable to some medical

17 help.

18 JUDGE JAN: Naturally where criminal

19 liability is lacking there will be no offence

20 committed. You don't need to ask an expert these

21 questions.

22 MS. RESIDOVIC: Your Honours, I said that we

23 were not talking about it, but the Professor still

24 provided an answer, and I had not expected him to do

25 so. But I'm focusing on two other criteria for

Page 15992

1 determining sentence.

2 Q. Professor, is it true that if somebody's

3 criminal responsibility is significantly lower, that

4 the court can actually give him a lighter sentence?

5 Let's say if the sentence was 5 years, he can be given

6 1 to 3 years; is that correct?

7 JUDGE JAN: Naturally.

8 A. Yes, that is correct.

9 JUDGE JAN: The sentence centres around his

10 responsibility, the circumstances under which the

11 offence was committed and his link with the offence

12 committed. So why ask these general questions?

13 MS. RESIDOVIC: Your Honours, these are the

14 circumstances that are taken into consideration by the

15 courts in Bosnia regarding the length of sentences, and

16 I just wanted to mention all the circumstances, not

17 just what is written down in the law.

18 JUDGE KARIBI-WHYTE: Rule 101 also spells

19 those things also. They are spelled out in Rule 101.

20 JUDGE JAN: In any case, you can't give a

21 very precise definition of what is a mitigating

22 circumstance. There are no hard and fast rules in this

23 regard. It is for the court to determine under what

24 circumstances the offence was committed when

25 determining the sentence.

Page 15993

1 MS. RESIDOVIC: Your Honour, I know that

2 everywhere in the world, the rules are the same as with

3 us. As Judges, you must have encountered this

4 situation a thousand times. However, our Rule says

5 that we need to take into account the practice of the

6 courts in the former Yugoslavia, in other words, what

7 was taken as mitigating circumstances.

8 JUDGE JAN: When determining the quantum of

9 sentence, you take the totality of the circumstances,

10 the whole circumstances of the whole case. You can't

11 have any definitions or hard and fast rules that this

12 is not a mitigating circumstance under these

13 circumstances. I don't know what the purpose is of you

14 asking these questions.

15 JUDGE KARIBI-WHYTE: If you want to educate

16 the Trial Chamber as to what is happening in the former

17 Yugoslavia, that's a good idea. Then we have some way

18 of knowing what is happening there. I suppose that

19 it's helpful to that extent, but it might not be

20 necessary for our purpose now. We've seen enough.

21 JUDGE JAN: It depends upon the facts of each

22 case, what would constitute a mitigating circumstance

23 and what would not constitute a mitigating

24 circumstance.

25 MS. RESIDOVIC: Your Honours, I'm not in a

Page 15994

1 position to ask you questions here, but maybe with

2 respect to the testimony of the witness I'm going to

3 call tomorrow, I may ask him something about the

4 cultural circumstances regarding the activities of my

5 client. But if I do not address such issues through

6 the witnesses, tomorrow you may tell me that this is

7 not a significant circumstance. I thought that it

8 would be helpful to you to see what our courts were

9 taking into consideration. So if you do not see this

10 as very useful, I can stop right here and now with this

11 line of questioning.

12 JUDGE JAN: You know what is better, but I

13 was just suggesting.

14 MS. RESIDOVIC: Thank you.

15 Q. Professor, is it true that courts also

16 considered the motivation, the motives of why a certain

17 crime was committed?

18 A. Yes. The motive is a very important

19 circumstance when determining sentence. It is very

20 significant why, that is, what motivation guided the

21 commission of a particular offence. A murder, for

22 instance, it could have been motivated by greed, also

23 by mercy, to spare the victim of further suffering. So

24 the court has to take into account the circumstances,

25 and the sentences in these two particular instances

Page 15995

1 would have been enormously different.

2 Q. Let's see, so hatred, mercy, those would all

3 be different motives, and our courts would accept them

4 as specific circumstances; is that correct?

5 A. Yes, absolutely so.

6 Q. Thank you. Is it true that further

7 circumstances that were being considered by the courts

8 are the circumstances under which certain offences were

9 committed, whether this was during special conditions

10 such as, let's say, a storm, at night, whether the

11 victim contributed to it in any way, so on and so

12 forth. Was that taken into consideration too?

13 A. Yes. All these were circumstances, and they

14 were very important. The courts took into

15 consideration the manner in which an offence was

16 committed, the time, the means, the circumstances, and

17 then the relation of the perpetrator towards the

18 victim, whether this was a small child or a person who

19 was defenceless, whether some relation of trust was

20 violated, let's say as between a child and an adult,

21 and things like that.

22 Q. Was the previous life history also taken into

23 account, his social status, the relation through work

24 to his co-workers, and things like that?

25 A. Yes. The life history was also one of the

Page 15996

1 elements which was taken into account when determining

2 the --

3 JUDGE JAN: Social status was also considered

4 when considering the gravity of an offence. Social

5 status was also considered when considering --

6 MS. RESIDOVIC: Not so much social status,

7 but his involvement in socially useful or desirable

8 activities, his positive traits, so to speak, socially

9 speaking.

10 A. Sorry. I have not finished. So these

11 circumstances could have been positive or negative.

12 The court needed to take into account both aspects, and

13 only in that way could it arrive at the proper

14 sentence.

15 Q. Did our courts also have an obligation to

16 take into account the personal circumstances of the

17 individual, his family circumstances and so on?

18 A. Yes. That was also an obligation of the

19 court. It was very important what his family situation

20 was, whether he was the breadwinner for the family,

21 then what the health situation was in the family, the

22 economic situation, whether they were permanently

23 employed or not, and the general social situation.

24 Q. Did our courts also determine, in passing a

25 sentence, the conduct of this individual after the

Page 15997

1 commission of the crime, remorse or an effort to

2 alleviate the consequences and his general conduct

3 before and during the legal proceedings?

4 A. Yes. Those were also circumstances which the

5 courts had to take into account, that is, his behaviour

6 after the committed crime, his preparedness to plead

7 guilty, to feel remorse, to alleviate the consequences

8 of the committed act. A lack of remorse was considered

9 as a very negative factor.

10 Q. Very well. Finally, were there also other

11 circumstances taken into account, so his health, his

12 industriousness, his social behaviour, were all of

13 these things taken, generally, into account?

14 A. Yes. The court had an obligation to take

15 everything in, all these circumstances, which would

16 point to a particular personality of the perpetrator of

17 a crime.

18 Q. Related to this, I only have one addition

19 question, Professor. If all these or some of these

20 circumstances which the court had to take into

21 consideration to give a punishment of 6, 8, 14 years,

22 if all these circumstances were so numerous and so

23 significant, is it true that the court here had the

24 authority to prescribe a sentence that was lower than

25 the sentence prescribed in the law?

Page 15998

1 A. Yes, that is correct. The federal criminal

2 law of Yugoslavia, in Article 42, provided this

3 particular basis for mitigation of sentence. It

4 existed in cases when, in a specific case, the court

5 determined that there are particularly mitigating

6 circumstances which pointed to the fact that even with

7 the mitigated punishment, the right punishment can be

8 attained. So it could give a sentence which would be

9 lower than the one provided by law. That would mean

10 that if the minimum sentence was 5 years, it could have

11 been reduced to as little as 1 year. This would be

12 still in accordance with the law.

13 Q. I have finished with the issues relating to

14 the determination of sentence in our national courts.

15 I have only three very brief questions for you,

16 Professor.

17 JUDGE JAN: Excuse me. Have you got a copy

18 of Article 42 to which the witness is referring, that

19 where a sentence -- provided by the law can be

20 ordered?

21 MS. RESIDOVIC: Your Honour, we have made

22 that provision available to you, together with our

23 submission on the sentence. So this is annexed to my

24 brief which concerns the accused Delalic. I mean, I

25 have not prepared this particular provision. I don't

Page 15999

1 have it here, but I can surely make a copy for you

2 during the break.

3 MS. McHENRY: If I look at it correctly, what

4 Mr. Moran submitted earlier today has, on page 4,

5 Article 42.

6 MS. RESIDOVIC: The limits of mitigation of

7 sentence is in Article 43.

8 Q. Therefore, Professor, as I said, there are

9 three more questions that I would like to ask you. Is

10 it true, Professor, that before our courts, we have one

11 unified, one integral proceedings, including the

12 calling of evidence and also a sentencing hearing.

13 This is all part of one and the single process?

14 A. Yes, that is correct.

15 Q. Is it true to say, Professor, that if the

16 court, if the Chamber, that is, in charge of the

17 proceedings rejects certain evidence to one of the

18 parties to the proceedings, especially if that

19 rejection is confirmed by a second instance court, that

20 particular evidence would be considered inadmissible

21 before our courts. And it cannot be used as a basis

22 for verdict or sentence?

23 A. Yes, that is correct.

24 Q. Professor, what would happen if such a thing

25 should occur, if a verdict is based on a piece of

Page 16000

1 evidence that was rejected or proclaimed as

2 inadmissible, either by the first instance or the

3 second instance court?

4 A. That verdict would be quashed.

5 MS. RESIDOVIC: Thank you very much,

6 Professor. This includes my examination of the

7 witness. Thank you, Your Honours.

8 JUDGE KARIBI-WHYTE: Thank you very much.

9 MR. MORRISON: Please, Your Honours, I have a

10 number of questions, but short ones on behalf of the

11 defendant, Mr. Mucic.

12 Cross-examined by Mr. Morrison:

13 Q. Professor, can I refer you, please, to

14 Article 36, the homicide provisions? In Article 36, it

15 appears that we have acts of commission, that is,

16 active acts rather than acts of omission. I appreciate

17 I'm reading it in translation, but each of the

18 instances set out in Article 36 appears to relate to

19 acts of commission, that is, active acts by the

20 accused. Is the translation accurate in that sense?

21 A. Article 36 of the Criminal Code of the

22 Republic of Bosnia-Herzegovina, in paragraph 1, a

23 so-called simple murder is provided for in the first

24 paragraph, with a minimum sentence of 5 years. It is a

25 very short wording. In our language, there are only

Page 16001

1 four words in this particular part of the text, and

2 they are equivalent to the English words "Whosoever

3 deprives another of his life." The law does not state

4 manners in which this can be committed, in which a

5 person can be killed, although when it comes to

6 homicide, we are, of course, talking about active acts,

7 about commissions. There is a series of acts that can

8 fall into that category, like opening of fire and

9 similar acts.

10 Q. Thank you. Well, we can read the text of

11 Article 36, and we can see how that reads in English.

12 I assume, for the moment, that the translation is

13 accurate. The reason I ask the question is if we

14 compare it to Article 38, it is plain that the law of

15 Bosnia and Herzegovina contemplates negligible

16 homicide, that is a culpable omission?

17 A. It is a big difference, of course. The basic

18 type of murder provided for in Article 36, paragraph 1,

19 for that particular kind of murder, the sentence that

20 is prescribed is the minimum of 5 years, and the type,

21 the model of responsibility, is the one that requires

22 the existence of premeditation or mens rea.

23 In the second case, in the case of Article

24 38, we are dealing with a so-called negligent homicide,

25 and according to the Yugoslav criminal legislation,

Page 16002

1 criminal responsibility was provided for negligent

2 homicide only when this was expressly stated, expressly

3 provided for, in the relevant law. In view of the type

4 of criminal responsibility, because there are less

5 severe types of criminal responsibility than the

6 premeditation, the penalty that was provided for was

7 between 6 months and 5 years. So you can see the

8 difference.

9 Q. Thank you. You've actually answered my next

10 question before I asked it which is encouraging. So it

11 would be a fair submission to say that in the case of a

12 finding of an act of omission, the law in Bosnia,

13 certainly according to the distinctions between Article

14 38 and 36, provides for less serious penalties in the

15 cases of omission than commission; is that a fair, if

16 simplified comment?

17 A. Yes. You can say that.

18 Q. Thank you. The reason I raise that point is

19 that the indictment in this case is put in the

20 alternative. The defendants are charged with acts of

21 -- effectively acts or omissions, so it would be

22 within the jurisdiction of the learned Judges to

23 convict on an act of omission, and the obvious point

24 I'm making is that, if we take into account the law of

25 Bosnia-Herzegovina, that provides a basis for a lesser

Page 16003

1 sentence. I think you've already agreed with that.

2 Q. Please, may I turn to Article 33, the purpose

3 of punishment. Under Article 33(1), dealing with the

4 general purpose of criminal sanctions, in translation,

5 one says this: "Preventing a perpetrator to commit

6 crimes and his or her re-education." Now, I hope I'm

7 not going into too fine a detail, but it is not plain

8 from the translation whether the word "and" is

9 conjunctive or disjunctive. I hope I'm not making

10 difficulties for the translator.

11 A. In Article 33, paragraph 1, the provision

12 that is contained therein uses a conjunctive, that is,

13 an "e" ending. The possibility of re-education is

14 included in this particular provision, whereas, the two

15 other paragraphs emphasise the special type of

16 prevention when it comes to penalties. In the Yugoslav

17 criminal legislation, there were other measures which

18 had that particular role, to prevent crimes. There

19 were eight possible security measures that were

20 provided for under the Yugoslav criminal legislation.

21 These measures relate only to the sentence itself, and

22 this is something that was mentioned this morning.

23 Q. Thank you for -- I thought it was

24 conjunctive, because I'm going to be making a

25 submission to the learned Judges, and I didn't want to

Page 16004

1 make it on a false basis. Thank you for that. Another

2 submission which will be made on behalf of Mr. Mucic is

3 this. Is it fair to say that from the totality of the

4 evidence you have given, that the judges, when applying

5 the law, in Bosnia-Herzegovina, have an extraordinarily

6 wide discretion, even when there are statutory

7 minima?

8 A. Yes. This goes to the principle of the

9 judicial individualisation of sentence, not only

10 punishment, but other penalties as well, release on

11 pardon, security measures, and similar types of

12 penalties. The courts did have very wide discretionary

13 powers with the objective of making the best possible

14 choice when it comes to pronouncing the specific

15 criminal penalty.

16 Q. I hope I'm not trespassing upon the learned

17 Judges's patience, but I think the next question I ask

18 is going to be more of academic than practical

19 interest, but it is this: We see provisions for

20 imprisonment and financial penalties. Are there also

21 within the code, provisions for, what in England would

22 be called community penalties, such as probation or

23 doing free work for the community?

24 A. Your question is rather topical because of

25 the new legislation that is being introduced in the

Page 16005

1 area of the former Yugoslav countries. According to

2 some theoretical approaches and influences from the

3 west, numerous other types of criminal sanctions have

4 been introduced. If we look at the particular

5 situation in this case, for this particular case,

6 previously, only three types of penalties were provided

7 for, death penalty, imprisonment, and a fine, a

8 financial penalty.

9 It is quite clear that when it comes to

10 imprisonment, this type of penalty, the convicts were

11 required to work, of course, within the parameters of

12 their psychological and physical abilities, because the

13 work also had an educational function and some type of

14 rehabilitational function. This was supposed to

15 prepare the convict for normal life after the prison.

16 If he had been convicted of theft, for example, he

17 needed to be prepared for some other type of work after

18 serving his prison sentence. Provisions were made for

19 such individuals to complete some kind of trade,

20 vocation, and so on.

21 Q. Thank you. Under Article 142, and this is

22 just an example, because I think the word appears in

23 other articles, when Her Honour Judge Odio-Benito

24 raised that Article, it struck me, again, that it may

25 be something that requires interpretation. There is a

Page 16006

1 provision of 5 years strict imprisonment as a statutory

2 minimum. Can you assist us? Does this strict

3 imprisonment, as one might expect, to the regime of

4 imprisonment, or is there another interpretation?

5 A. Up until 1976, in the former Yugoslavia,

6 there were two types of prison sentences. The first

7 one was a simple prison sentence and a strict

8 imprisonment. A simple prison sentence could be

9 imposed ranging from 3 days up to 3 years. Strict

10 imprisonment ranged from 5 years to 15 years in

11 prison. However, after the application of the new

12 criminal legislation in the former Yugoslavia, the 1st

13 of July, 1977, a unification of prison sentences has

14 been made. Since that time, we had only one type of

15 prison sentence, from 5 to 15 years in prison.

16 So the same regime of prison sentence applied

17 to a convict who received a 3-year sentence and a

18 convict who received a 15-year prison sentence. The

19 regimes of correctional facilities were the same.

20 After a certain number of years, they were entitled to

21 some home leave. At the beginning, this type of leave

22 was done within the correctional institution, and after

23 a certain period of time, after it was established that

24 the convict could be trusted, that after it was made

25 sure that he would not leave the country, such a

Page 16007

1 convict could be released for home leave, and he could

2 spend some time off with his or her family, try to help

3 the family, for example, during the summer, if they

4 were doing some agricultural work or building a house,

5 for example, of course, provided that he returns on

6 time to serve the remainder of his sentence. The

7 regime was the same. There was no difference in

8 respect of the length of prison sentence.

9 What is perhaps -- the regime of a prison

10 sentence always depended on the psychological and

11 mental state of the convict. There were convicts who

12 could not do any kind of work within the correctional

13 facility. However, there were convicts who were able

14 to take care of the garden or the yard of the

15 correctional facility.

16 Q. Thank you. So the reality is that the word

17 "strict" relates to the number of years, rather than

18 the regime?

19 A. Yes, that is correct.

20 Q. Lastly this: You've referred to correctional

21 facilities. Can you assist us with this, please, if

22 it's not within your knowledge, then please say so.

23 But going back to 1992, who were officially responsible

24 for running prisons in Bosnia-Herzegovina? I mean, for

25 example, in England and Wales, we have a government

Page 16008

1 service and some private prisons. What was the

2 official body responsible for running prisons in 1992?

3 MS. McHENRY: Your Honour, I fail to see how

4 this is relevant to the question of the appropriate

5 sentence.

6 MR. MORRISON: It goes to mitigation, and

7 I'll explain how, because it's a perfectly valid

8 objection, if I may say so, if I don't explain it. The

9 explanation is going to be this: That in part of the

10 mitigation, on the assumption that Mr. Mucic is

11 convicted of one or more of the counts on the

12 indictment, one of the points that will go to

13 mitigation is that he was not a trained prison guard or

14 prison officer. If there was, in fact, no official

15 body, that would not be a good point to make in

16 mitigation. If there was an official body that had

17 oversee of the prison service, then it is a better

18 point, which is why I make it.

19 MS. McHENRY: My objection still stands.

20 JUDGE KARIBI-WHYTE: I don't think it makes

21 any difference, it's still evidence in the

22 proceedings.


24 JUDGE KARIBI-WHYTE: If you think it's

25 necessary for us to take it into account, we'll do so.

Page 16009

1 MR. MORRISON: Thank you, Your Honour.

2 Before you need to take it into account, the witness

3 needs to be able to answer the question.

4 JUDGE KARIBI-WHYTE: Yes. That's why I say

5 it is still evidence in the proceedings.


7 Q. Can you assist us, please, Dr. Tomic?

8 A. Yes, of course. The serving of a sentence in

9 the former Yugoslavia fell under the competence of

10 three types of facilities. There were facilities of a

11 so-called closed type, semi-closed, and an open type.

12 There were also prisons for juvenile delinquents, but

13 they weren't really prisons but some kind of

14 educational facilities or homes. This all fell under

15 the jurisdiction of the ministry of justice of a

16 particular republic, so this was at the level of the

17 republic.

18 The enforcement of criminal sanctions, in

19 general, was governed by a special law which was called

20 the law on the enforcement of criminal sanctions and

21 penalties relating to misdemeanours, and I hope that

22 misdemeanour will be translated correctly. That area

23 would cover, for example, traffic offences. The regime

24 at these facilities varied. The most variable regime,

25 of course, was the one that was in force in the

Page 16010

1 so-called open facilities, facilities of open type.

2 The convicts would come to work in the morning. They

3 would have to do the work during the day, and in the

4 afternoon, they could go home and they could sleep at

5 home. In the morning, they would have to show up at

6 work again. This was a so-called open type of

7 facility.

8 As far as semi-open facilities are concerned,

9 the regime was somewhat more severe and less

10 privileged. However, these convicts could also leave

11 the facility and could also do some work outside the

12 correctional facility.

13 When it comes to the so-called closed

14 correctional facilities, of a closed type, depending,

15 of course, on the type of the criminal offence and the

16 severity of the punishment and the character and

17 personal traits of the convict, classification was made

18 of convicts, and they were divided in groups according

19 to particular requirements pertaining to that

20 category. They did not have the same regime.

21 There was a category of convicts who could

22 not leave the correctional facility at all, who were

23 not allowed to go out. Then came the category of those

24 who were sometimes, occasionally, allowed to leave the

25 correctional facility under the escort of prison

Page 16011

1 guards, of course, to take care of any work they needed

2 to conduct.

3 There was the third category of convicts,

4 those who were allowed to leave the correctional

5 facility without the escort of prison guards. The

6 administration of the correctional facility in question

7 trusted these convicts, and the convicts were very

8 seldom abused of their trust.

9 MR. MORRISON: Thank you very much, Professor

10 Tomic.

11 JUDGE KARIBI-WHYTE: Any further questions?

12 MS. McMURREY: Yes, Your Honours, if I might

13 be allowed just a question from here, I'll be brief.

14 JUDGE KARIBI-WHYTE: If you so wish.

15 MS. McMURREY: Thank you.

16 Cross-examined by Ms. McMurrey:

17 Q. Although I believe that my learned colleague,

18 Madam Residovic, has touched on this briefly, I would

19 just like to specifically ask under Article 41, when it

20 says that the circumstances to be taken into

21 consideration is the level of criminal responsibility,

22 that relates to diminished mental responsibility,

23 doesn't it?

24 A. Yes. It relates to mental responsibility and

25 the culpability as well. Do you wish me to explain

Page 16012

1 this any further?

2 When the law mentions as a potential

3 circumstance, mitigating or aggravating the level of

4 criminal responsibility, this meant that two things

5 basically had to be taken into account. Under the

6 Yugoslav criminal law, criminal responsibility

7 consisted of mental responsibility and culpability.

8 Both these elements could vary in degrees, in levels.

9 So, leave aside the complete lack of responsibility,

10 which automatically excluded criminal responsibility as

11 such, what was taken into account while assessing the

12 criminal responsibility was the following: The full

13 mental responsibility, a significantly diminished

14 mental responsibility, and one more category, which is

15 not a legal category, properly speaking, but it has

16 developed through the practice, and this is the case of

17 diminished mental responsibility. So there is a very

18 important difference between diminished mental

19 responsibility and seriously diminished mental

20 responsibility.

21 The seriously diminished mental

22 responsibility represented a special type of legal

23 basis for mitigation of sentence, whereas a simple

24 diminished mental responsibility could be taken into

25 account as a mitigating circumstance while assessing

Page 16013

1 the appropriate sentence, again, within the parameters

2 of the prescribed penalty.

3 In the first case, the courts would go under,

4 below, the parameters of the punishment that was

5 provided for that particular offence. In the second

6 case, the court would remain within the parameters,

7 legally-established parameters, for that particular

8 punishment, but there was a possibility to apply a less

9 harsh sentence, again, within the frameworks of

10 punishment, for that particular type of criminal

11 offence.

12 Have I properly understood your question?

13 Second, there is the show of culpability.

14 Under the Yugoslav criminal law, the culpability

15 consisted of two or, rather, four elements. The first

16 type of culpability was a so-called premeditation,

17 which could be direct or indirect. The second type of

18 culpability was negligence which could be conscious or

19 unconscious.

20 Do you wish me to state legal qualifications

21 of both? I believe that what is important is the fact

22 that they both include intellectual and volitional

23 elements. They take into account both the will of the

24 perpetrator and the intellectual faculties of the

25 perpetrator.

Page 16014

1 Let me give you an example. If you have a

2 perpetrator who, at the time of the commission of the

3 criminal offence, was in full possession of his mental

4 capacities, and if he committed a crime with direct

5 premeditation, the low level of this type of -- there

6 would be a high level of culpability, whereas, a low

7 level of culpability would be for someone who was not

8 fully aware and committed the crime out of negligence.

9 So that would call for a lower level of criminal

10 responsibility.

11 Q. Thank you very much, Dr. Tomic. When we talk

12 about those two different levels of diminished mental

13 responsibility, one you stated was essentially

14 diminished mental responsibility which would normally

15 take the sentence underneath the statutory minimum, and

16 the second was diminished mental responsibility that

17 would not take it below the minimum, but would place

18 the punishment somewhere close to the minimum; would

19 that be accurate?

20 A. Yes. I can point to the relevant provision.

21 This is Article 12, paragraph 2, which states expressly

22 that the perpetrator can be imposed a less harsh

23 sentence.

24 Q. Thank you. I have one more question about

25 diminished mental responsibility. In the courts in the

Page 16015

1 former Yugoslavia, what type of evidence was necessary

2 to persuade the court that there existed diminished

3 mental responsibility of the individual?

4 A. Before the courts of the former Yugoslavia,

5 the issue of mental responsibility was not raised on a

6 regular basis. It was raised only in exceptional

7 circumstances when the circumstances of the case were

8 such as to indicate the perpetrator who was not in full

9 possession of his mental capacity at the time of the

10 fact.

11 In other words, when there were reasonable

12 grounds to suspect the mental responsibility of the

13 perpetrator, in that case, the court would request an

14 expert psychiatric analysis of the perpetrator, and the

15 expert in question would provide his expert opinion,

16 which would usually take a two-month or three-month

17 period of examination, and he would submit his written

18 report to the court, and he would appear before the

19 judges to explain the psychological state of the

20 perpetrator of the time of the commission of the fact.

21 So when it comes to assessing the mental

22 responsibility, the court would always have a recourse

23 to the assistance of a court-sworn expert in the area.

24 I hope this is the case in your country as well.

25 Q. Yes, it is, in different levels of mental

Page 16016

1 responsibility, though. I also would like to ask one

2 more question: As far as the circumstances of

3 mitigating evidence, a young age, age is a

4 consideration of the total circumstances of the

5 individual to be considered as mitigation of

6 punishment, wouldn't it?

7 A. Yes, that is correct. The age could be taken

8 into account while assessing the appropriate sentence.

9 Let me give you an example. If the perpetrator was an

10 elderly person or a person in a poor state of health,

11 and if he was forced to steal because of his personal

12 circumstances, the court would definitely take into

13 account his age and his personal circumstances while

14 assessing the appropriate sentence.

15 MS. McMURREY: I thank you very much.

16 A. That also relates to fraud, for example.

17 Q. And also the young age. If someone was 18 or

18 19 years old, that would be considered as mitigating

19 circumstances also, wouldn't it?

20 A. Yes. One can say that it could be taken as a

21 mitigating circumstance, although for the most severe

22 types of penalties, there were certain limitations.

23 Although the person in question may have been of age,

24 very often the court had to deal with the person who

25 did not have a very rich life experience. So this type

Page 16017

1 of these personality traits, relating to the age, were,

2 of course, taken into account by our courts.

3 Q. Dr. Tomic, since the courts in the former

4 Yugoslavia seem to take in the total circumstances, as

5 Judge Jan has cited, for mitigation of punishment, the

6 court would have considered circumstances of a war and

7 the circumstances all around the events that occurred,

8 wouldn't they?

9 A. The courts were bound to take into account

10 all these circumstances by law, and only in assessing

11 the circumstances in their entirety could the court

12 reach an appropriate verdict. Should the verdict be

13 reached on the basis of only one circumstance, then the

14 second instance court would, in most of the cases,

15 quash the verdict in question. The circumstances,

16 therefore, had to be taken into account in their

17 entirety, and only that could properly function as a

18 legal basis for assessing the appropriate sentence.

19 MS. McMURREY: Thank you very much,

20 Dr. Tomic. I have no further questions, Your Honour.

21 JUDGE KARIBI-WHYTE: Any questions by the

22 Prosecution?

23 MS. McHENRY: Yes, thank you, Your Honour.

24 Cross-examined by Ms. McHenry:

25 Q. Good afternoon, Dr. Goreta. Excuse me. Good

Page 16018

1 afternoon, Dr. Tomic. Sir, with respect to diminished

2 responsibility, you indicated that it was an

3 exceptional defence, so you would be surprised if a

4 forensic expert looked at 25 cases of war crimes and

5 found diminished mental responsibility in all 25,

6 wouldn't you?

7 MS. McMURREY: Your Honour, I'm going to

8 object. Ms. McHenry is misleading this witness. First

9 of all, the expert she's talking about took into

10 account 120 cases, 25 of which he wrote about. I

11 believe she's misleading him as far as the facts of the

12 case are concerned.

13 JUDGE KARIBI-WHYTE: Can you put your

14 question to him again?

15 MS. McHENRY: Yes, and I don't believe it's

16 misleading if you look at the Article, although he

17 later on looked at others, he said that these were 25

18 that he looked at. In all 25, he found diminished

19 mental responsibility.

20 Q. Sir, my question again is, you would be

21 surprised if a forensic expert looked at 25 cases of

22 war crimes and found diminished mental responsibility

23 in all 25, wouldn't you?

24 JUDGE JAN: You can surprise him with so many

25 things. I don't think it's a fair question.

Page 16019

1 MS. McHENRY: Your Honour, if he doesn't

2 think he can answer it, obviously he can tell me that.

3 JUDGE KARIBI-WHYTE: These are all opinions.

4 If he believes that they can be --

5 A. There are no problems. I can answer this

6 question. I wouldn't be surprised at all if he

7 determined diminished responsibility with all 25

8 cases. It could be that all cases that the Doctor was

9 studying, that in all 25 cases, there was heavy

10 intoxication, for instance. Thousands and thousands of

11 people were getting drunk, and in this state, they

12 committed crimes. So why not the 25 that he mentions?

13 MS. McMURREY: Your Honour, I'm going to

14 object, because for clarity, if he's going to form an

15 opinion on the basis of the question Ms. McHenry has

16 asked, he needs to know that it was a hospital where

17 only the most severe cases were referred. So he needs

18 to know that those were exceptional cases that were

19 referred to that hospital ahead of time, not just 25 --

20 JUDGE KARIBI-WHYTE: I think you prefer being

21 the expert in this case. Let him give his answers.

22 That has nothing to do with your own opinion.


24 Q. Sir, let me go on.

25 JUDGE KARIBI-WHYTE: Yes, you can.

Page 16020

1 MS. McHENRY: Thank you.

2 Q. You indicated that in the former Yugoslavia,

3 judges were entitled to consider a broad range of

4 factors, including an accused general conduct before

5 and during the proceedings. In the former Yugoslavia,

6 would efforts to obstruct justice be considered among

7 the totality of the circumstances?

8 JUDGE JAN: Under any circumstance, as an

9 aggravating circumstance, not in the mitigation of

10 circumstances.

11 MS. McHENRY: Under the totality of

12 circumstances which can include both aggravating and

13 mitigating. Certainly, I would believe it would be

14 aggravating circumstances.

15 Q. Sir, would that be something that could be

16 considered?

17 MS. RESIDOVIC: I'm sorry, but I think that

18 the witness did respond that it was a circumstance that

19 would be considered by the courts, so I don't know why

20 he should repeat it himself.

21 A. I do not know what you have in mind.

22 JUDGE KARIBI-WHYTE: Why wouldn't you allow

23 somebody to put him questions? I don't see how it

24 concerns you. If someone is asking questions, let the

25 questions be put and let us have the answers. They are

Page 16021

1 not answers which belong to you. Please, put your

2 question again.


4 Q. Sir, you would agree with me that efforts to

5 obstruct justice can be considered by a judge in

6 determining the totality of circumstances in the former

7 Yugoslavia?

8 A. Yes, it could be considered when determining

9 the sentence.

10 Q. Thank you. Sir, you would agree with me

11 that, although it may change in the future, in 1992 and

12 up to the present time, the law of Bosnia-Herzegovina

13 does provide for a death penalty; is that correct?

14 A. I believe at this point the death penalty is

15 still in force, in other words, the law that provides

16 for the death penalty. The new law has been written,

17 but it has not been adopted yet.

18 Q. Now, you were asked by Mrs. Residovic right

19 before, I believe, the lunch break, a question about

20 the maximum term of imprisonment for cases where life

21 imprisonment was provided. Now, I'm a little confused,

22 because I'm correct, aren't I, that in the former

23 Yugoslavia, there were no crimes for which a life

24 sentence was provided; is that correct?

25 A. Such punishment was not provided for in the

Page 16022

1 legislation of the former Yugoslavia. There was death

2 penalty. It was the prison sentence of 15 days to 15

3 years, and then there was also the financial

4 punishment, and then there was a confiscation of

5 property, which was a relic from the past which was

6 abolished. So, no, there was no life sentence.

7 Q. Now, the Tadic judgement, when speaking of the

8 law in the former Yugoslavia, including

9 Bosnia-Herzegovina, said: "Imprisonment as a form of

10 punishment was limited to a term of 15 years or, in

11 cases for which the death penalty was prescribed as an

12 alternative to imprisonment, to a term of 20 years."

13 That's a correct statement, isn't it?

14 A. With respect to offences for which the death

15 penalty and prison sentence were provided, when the

16 death penalty was not provided as the only punishment,

17 the courts had two alternatives from the start. It

18 could determine either a prison sentence which would be

19 either the 5 to 15 years prison term or a death

20 penalty, then 10 years or death penalty, which would

21 mean 10 to 15 years or death penalty.

22 The court had to choose with respect to the

23 specific threat for society and the specific

24 perpetrator whether a prison term, with the limit of 15

25 years was sufficient, or whether it was going to

Page 16023

1 consider the death penalty. And if they -- I'm sorry.

2 I did not finish. If they chose the second

3 alternative, in other words, the death penalty, they

4 still had two possibilities, to either give the death

5 penalty or the prison sentence of 20 years, even though

6 this 20-year term was not provided for in the law but,

7 rather, in the federal legislation.

8 JUDGE KARIBI-WHYTE: When the proposition was

9 put, either you reject it as inaccurate and formulate

10 your own or you now proceed to say what you think the

11 proposition is. The question which counsel put was a

12 straightforward, simple one, asking whether that

13 proposition was right. If it is right, you accept it.

14 If it is not right, you will now tell the Trial Chamber

15 what your own proposition is, with respect to those

16 provisions of your ... because when you go on and on,

17 everybody gets lost in the explanation.


19 Q. Sir, was my statement correct? If you need

20 me to repeat it, tell me, please.

21 JUDGE JAN: I think the law is very clear.

22 MS. McHENRY: Your Honour, if that's the

23 case, then I think this expert can easily say, "Yes,

24 you are correct."

25 Q. Was this statement correct, sir?

Page 16024

1 A. Excuse me, but I answered very accurately.

2 If there was a 5-year term or a death penalty was

3 provided for and if it was --

4 Q. Please, I don't want you to explain again.

5 Are you able to tell me with a "yes" or "no" whether or

6 not this is a correct statement. If you need me to

7 repeat it, please tell me.

8 A. Would you please repeat it?

9 Q. Imprisonment as a form of punishment was

10 limited to a term of 15 years or, in cases for which

11 the death penalty was prescribed as an alternative to

12 imprisonment, to a term of 20 years.

13 A. Yes, that is correct.

14 Q. Thank you. Now, sir, you mention the law

15 concerning infliction of bodily harm, and I'm not going

16 to ask you to explain anything about it, and we may,

17 hopefully, get the copy tomorrow. But can you just

18 tell me where are those provisions in the law? Can you

19 just cite me to an article? I'm not asking you to

20 explain them.

21 A. You mean serious bodily injures.

22 Q. Yes.

23 A. They were in the republican law.

24 Q. In the Republic of Bosnia-Herzegovina can you

25 just, please, tell me the provision?

Page 16025

1 A. Article 42 of the republican law. It refers

2 to the serious bodily injury. It is Article 42 of the

3 Criminal Code of the Republic of Bosnia-Herzegovina.

4 Q. Thank you. Now, sir, during your testimony,

5 there was some discussion that the death penalty was to

6 be given only in cases of serious or hard cases,

7 although everyone recognises that every case has to be

8 evaluated individually, it is the case that the

9 legislature of Bosnia-Herzegovina, in Article 36, set

10 out what it considered to be serious or aggravating or

11 grave cases of homicide; is that correct?

12 JUDGE JAN: The words are extremely hard

13 cases, not only hard cases, but extremely hard cases,

14 Article 27(2).

15 A. May I begin?

16 JUDGE JAN: Death penalty shall be pronounced

17 only for extremely hard cases, not only hard cases, but

18 extremely hard cases.


20 Q. Yes, sir.

21 A. With your permission, please. In Article 37

22 of the Federal Criminal Code which regulates issues on

23 death penalty, in paragraph 2, it states: "Death

24 penalty shall be pronounced only for the extremely hard

25 cases of serious crimes for which it is prescribed

Page 16026

1 according to law." So the exception is the most

2 serious of the serious crimes for which it was

3 prescribed. These always needed to be exceptionally

4 serious cases. In the republican law, in Article 36,

5 several possibilities are quoted, and I mentioned

6 several today. I don't think there is a need to repeat

7 them now.

8 Q. Well, sir, I wasn't suggesting that the death

9 penalty would be applied in every single of those

10 cases, but I'm suggesting that the law of

11 Bosnia-Herzegovina indicated that it viewed as serious

12 or aggravating cases of homicide, those where someone

13 has acted in a cruel manner, or in a wantonly

14 aggressive manner, or out of merciless revenge, or

15 other low motives, or where someone is guarding a

16 person deprived of their freedom, or where two or more

17 homicides have been committed. Is that correct, that

18 these were viewed as serious or aggravating cases of

19 homicide?

20 A. In Article 36, paragraph 2, there are several

21 alternatives offered. These are all qualified or

22 aggravating forms of murder, and for them, the

23 mandatory punishment is different.

24 Q. For those cases, there is a mandatory minimum

25 sentence of 10 years; is that correct?

Page 16027

1 A. Correct.

2 Q. Thank you. Now, you talked about one war

3 crime case in Bosnia-Herzegovina. I'm correct that

4 when the SFRY existed, war crimes were usually

5 prosecuted in federal courts, rather than the republic

6 courts; is that correct?

7 A. I'm sorry, but that is not correct. Your

8 information is incorrect.

9 Q. Okay. Thank you. Now, again going to how a

10 judge should determine what penalty should be applied,

11 we've been given the translation of the SFRY code,

12 Articles 41, 42, 43, 44, 45, 46, 48, 49, and 50. Do

13 you know why we haven't been given translations of

14 Article 47?

15 A. I don't know.

16 Q. Am I correct, sir, that Article --

17 A. I could say --

18 THE INTERPRETER: Microphone to the witness,

19 please.

20 A. Is everything all right now? This is a

21 provision on a particularly serious case which was

22 deleted from the law on the 28th of June, 1990. I

23 don't know if this is a provision which was called in

24 the Yugoslav legal practice, a particularly serious

25 case. Just as the 20-year term was done away with, so

Page 16028

1 was this particular provision done away with. I could

2 explain to you in an example what such a case was.


4 Q. No. Just let me clarify. It's your

5 testimony, sir, that Article 47 was repealed in 1990.

6 Do I understand you correctly? So after 1990, Article

7 47 no longer existed?

8 A. Yes. As of 28 June, 1990.

9 Q. Thank you.

10 A. I can show you the text of the law of 1990,

11 and it says Article 47, a particularly serious case,

12 and it says "deleted." It means that this has been

13 done away with.

14 JUDGE JAN: What is this article about?

15 MS. McHENRY: The article is about

16 especially, serious cases and what should happen. If

17 the Professor has told me that it has been repealed, I

18 don't have any further questions. My question was,

19 "Why wasn't that included"?

20 Q. Sir, one reason, among others, that a Chamber

21 before this Tribunal, in the first Erdemovic judgement,

22 found that the practice in the former Yugoslavia

23 regarding sentences was instructive and could serve as

24 a guide but was not binding on this Tribunal --

25 MR. MORAN: Your Honour, let me object to

Page 16029

1 this. The Appeals Chamber vacated that judgement. That

2 judgement is just ink on paper. It has no binding

3 authority on anything.

4 JUDGE KARIBI-WHYTE: She is merely just

5 seeking his opinion. I see nothing wrong with it.


7 Q. Thank you, sir. Let me continue. One

8 reason, among others, that a Chamber found that the

9 practice of former Yugoslavia regarding sentences was

10 instructive and could serve as a guide but was not

11 binding was the practical and legal difficulties in

12 establishing just what the practice in former

13 Yugoslavia was. I'd like to ask you a few questions

14 about the basis for your opinions.

15 Let me ask you specifically, are there books

16 published with the judicial decisions in them such that

17 one can know the facts of the case and the sentence

18 that has all the judicial decisions in the former

19 Yugoslavia?

20 A. In the former Yugoslavia, as in other

21 countries, there was a tradition to have the legal

22 proceedings published, and at the federal level, there

23 was a monthly publication which was the court practice

24 of the highest court, the federal and republican

25 courts. This was very important because the court

Page 16030

1 practice also helped create laws. It pointed to the

2 good sides and bad sides. So, yes, these things did

3 exist.

4 Q. They exist for both the federal and the

5 Republic of Bosnia-Herzegovina?

6 A. Yes, at the level of Republic of

7 Bosnia-Herzegovina, there were bulletins, and they were

8 issued on a regular basis, and whatever was interesting

9 in terms of practice would appear in these bulletins.

10 So the legal experts were able to follow it and then

11 make the necessary adjustments and corrections. So,

12 this led to a better implementation of these laws.

13 Q. Then let me then go forward and ask you, and

14 this is just an example, since this Tribunal doesn't

15 have the death penalty, in any event. If other experts

16 have written that the death penalty was imposed 17

17 times in the SFRY, in the period 1982 to 1990, for

18 crimes of murder, robbery leading to a loss of life and

19 war crimes, would you be able to disagree or agree with

20 that statement or you can't say?

21 A. I did not understand you. Did you say that

22 this sentence was pronounced or that it was executed,

23 the number of examples you just quoted?

24 Q. Sir. The word was "imposed," and I can't

25 tell you whether or not that means executed or

Page 16031

1 pronounced. I can only tell you what another expert

2 said, and my question is, would you agree with that

3 statement?

4 MR. MORAN: Your Honour, I object to that

5 question because --

6 A. I do not know where the information --

7 MR. MORAN: He doesn't know what it means.

8 How can he agree or disagree?

9 JUDGE KARIBI-WHYTE: I think it might be fair

10 to point out the particular expert who said so and

11 where it was so said, and let him deal with that.

12 MS. McHENRY: Certainly.

13 Q. Sir, the experts were Ivan Jankovic and

14 Vladan Vasilijevic, and to answer the question, you can

15 say that if it's pronounced, I would agree with it, if

16 it means, actually, implemented, I would disagree with

17 it?

18 A. I would not agree with either, even though I

19 know Mr. Vladan Vasilijevic.

20 Q. My pronunciation is often a problem. If one

21 expert says the death penalty was pronounced 17 times

22 and another expert says it wasn't, could one go back to

23 the monthly bulletins and figure this out, or one

24 wouldn't know because the bulletins have certain cases

25 and not others?

Page 16032

1 A. I know the death penalty was imposed very

2 rarely and was implemented extremely rarely. I don't

3 know where Mr. Vasilijevic found this information of 17

4 instances. I'm not sure about that. I know,

5 specifically, that it was imposed and it was

6 implemented in two cases in Bosnia-Herzegovina some 20

7 years ago, that it was both pronounced and carried

8 out. It was in a case of a murder of a 12-year-old

9 child, and it was a case of merciless revenge case,

10 something you mentioned in reference to Article 36.

11 JUDGE KARIBI-WHYTE: If you have the

12 published work on which this statement was taken, you

13 should mention it to him so that he will complete his

14 researches.

15 MS. McHENRY: Your Honour, I can find that,

16 but as I understood the witness, he is not in a

17 position to say either yes or no. He says, I'm not

18 sure.

19 Q. Is that correct, sir?

20 JUDGE KARIBI-WHYTE: Because you have not

21 been quite forthcoming of the details as to how you

22 came to your information, because you should tell him

23 exactly what your information was. Because if you say

24 a general article, then mention the article.


Page 16033

1 Q. Well, sir, if I understood you correctly?

2 JUDGE JAN: This was over a period of 10

3 years.

4 MS. McHENRY: The report said, Your Honour.

5 I'm not vouching for its accuracy.

6 JUDGE JAN: In most of the cases, it was just

7 not imposed. 17 cases in 8 years.

8 MS. McHENRY: Yes, Your Honour, I believe

9 that --

10 JUDGE JAN: Maybe it supports his statement

11 that it was merely imposed. Can you plead that only 17

12 murders in 8 years --

13 MS. McHENRY: I'm sorry. The expert report

14 doesn't suggest that there were only 17 murders in

15 Bosnia or the SFRY. It suggests that the death penalty

16 was imposed 17 times, and I'm not vouching for its

17 accuracy, especially since this Tribunal doesn't even

18 have a death penalty. I'm just trying to figure out

19 how it is that one determines what the sentencing

20 practices were.

21 JUDGE JAN: He said it was rarely imposed,

22 and he remembers one or two cases. I'm just wondering

23 17 in 8 years, less than half every year, which is

24 rare, isn't it?

25 MS. McHENRY: It's certainly not common, Your

Page 16034

1 Honour. I don't disagree with that. It's an article

2 entitled, "Sentencing Policies and Practices in the

3 former Yugoslavia, 1994."

4 Q. Let me go forward, sir. You would also -- I

5 assume you would --

6 JUDGE KARIBI-WHYTE: I think we will rise and

7 come back at 4.30.

8 MR. MORAN: There's a slight technical

9 thing. The professor has to run an errand having to do

10 with the cashier's office between 4.00 and 4.30, and

11 sometimes they open a little late, so he may be a

12 couple of minutes late in getting back. Just so the

13 Court knows that it is a thing the Victims and

14 Witnesses set up for him.

15 JUDGE KARIBI-WHYTE: I think we will oblige

16 him. We will come back at 4.30.

17 --- Recess taken at 4.02 p.m.

18 --- On resuming at 4.35 p.m.

19 JUDGE KARIBI-WHYTE: You may continue,

20 please.

21 MS. McHENRY: Thank you.

22 Q. Sir, is it correct that in March of 1993, a

23 Mr. Damjanovic was sentenced to death, although it was

24 not carried out --

25 MR. MORAN: Objection, Your Honour. That's

Page 16035

1 irrelevant. It's beyond the time frame that is

2 relevant to this case.

3 JUDGE KARIBI-WHYTE: I don't know what harm

4 you suffer from with this irrelevancy. It doesn't

5 affect you, even if it was answered.

6 MS. McHENRY: Let me continue my question.

7 Q. Sir, it's correct, isn't it, that in March

8 1993, a Mr. Damjanovic was sentenced to death for seven

9 murders and two rapes he had committed previously,

10 although the sentence wasn't carried out?

11 A. I was present at the trial in Sarajevo. I

12 did not follow it to the end, and I don't know whether

13 it is correct that there were seven murders exactly. I

14 couldn't confirm that. In any case, it was a case of

15 multiple murder and rapes. Damjanovic was not acting

16 alone. It was a group of people including Damjanovic

17 and a woman who was his accessory. I do not remember

18 technical details of the trial, though.

19 Q. It is true that he was sentenced to death,

20 although the sentence has not been carried out; is that

21 correct?

22 A. I believe that is correct.

23 Q. Now, sir, is it your testimony that --

24 A. If I may, if you will allow me to add

25 something, I think that that penalty, that sentence,

Page 16036

1 was substituted for a 20-year prison sentence.

2 Q. Thank you. Now, sir, is it your testimony

3 that under Article 38(2), for cases where a person

4 could get the death penalty, a judge cannot just

5 pronounce a 20-year sentence, that the judge has to

6 pronounce a death sentence and then commute it to 20

7 years; is that your testimony?

8 A. For criminal acts carrying the death penalty,

9 the court could also pronounce a 20-year sentence.

10 This is the relevant text. Therefore, it cannot

11 pronounce it as a substitute. It can also pronounce it

12 as a sentence, that is, the 20-year prison sentence. I

13 think the text is quite clear and precise.

14 Q. The judge doesn't have to first pronounce a

15 death sentence; correct? The judge can just pronounce

16 a 20-year sentence; is that correct?

17 A. Yes. This follows from the relevant

18 provision.

19 Q. Thank you. Now, going to 38(3), is it your

20 testimony that that section has been repealed?

21 A. I don't think you have understood me

22 correctly. I said that this provision has remained,

23 and it was in force during the relevant times of this

24 case. However, the same provision was also contained

25 in the law of 1976, and the explanation is the

Page 16037

1 following: The federal legislator left in this

2 provision, which is of a general character, a

3 possibility for incorporating in the separate sections

4 of the relevant law or republic laws for the punishment

5 of a 20-year prison sentence to be also contained.

6 So this possibility, this provision, from '76

7 was used. Later on, that particular provision applied

8 for eight particular crimes at the level of the

9 federation and at the level of the republics.

10 However, on the 28th of June, 1990, within

11 the amendments of the last reform of the criminal

12 legislation of the country that no longer exists, this

13 20-year prison sentence was deleted. So there is not a

14 single criminal offence, criminal act, which carries,

15 expressly, the 20-year prison sentence. This is

16 something that you will not find anywhere in the

17 relevant and currently valid legal texts.

18 The Republic of Bosnia-Herzegovina, in July

19 1991, made a reform or, rather, introduced a novelty in

20 its Criminal Code. It followed the principle of the

21 federal legislator, and the Republic of

22 Bosnia-Herzegovina also deleted provisions which were

23 connected with a particularly serious crime, a

24 particularly aggravated criminal offence.

25 Therefore, in these two texts that were valid

Page 16038

1 in the relevant times, there are no 20-year prison

2 sentences provided. This text covers more than 250

3 types of criminal offences.

4 Q. Do I understand you to say, sir, that 38(3)

5 doesn't, in fact, mean what its plain language says it

6 means, which is that a 20-year sentence can be

7 pronounced for severe forms of crimes where there is

8 intentional fault allowing a prison term of up to 15

9 years?

10 MR. MORAN: Objection, Your Honour. Asked

11 and answered.

12 MS. RESIDOVIC: I apologise for

13 interrupting. The translation may be misleading. The

14 translation that I received, the translation of this

15 article, was that it can be pronounced. However, the

16 text of the law is the following: For the severe forms

17 of such a crime, a sentence can be prescribed, and a

18 sentence can be prescribed only by a legislative body.

19 So if there has been a mistake in translation, then no

20 wonder we cannot understand each other.

21 MS. McHENRY: Thank you for your assistance,

22 Ms. Residovic. I believe that does clarify the

23 matter.

24 A. Could I kindly ask the interpreter to speak

25 up a little bit?

Page 16039

1 Q. Sir, if I understood you correctly, you said

2 before, during your direct examination, that in the

3 former Yugoslavia, one of the goals of sentencing did

4 not include making an example of someone. Did you mean

5 to say that?

6 A. I'm not quite sure I understand your

7 question. Could you please repeat it?

8 Q. At least as it was interpreted to me, you

9 were asked a question by Mr. Moran which said that in

10 the SFRY, the former Yugoslavia, that sentences were

11 not intended to make an example of someone?

12 A. The question obviously relates to the purpose

13 of punishment, to the objective of punishment. The

14 interpretation I received was the intention, the intent

15 of punishment. I presume that what you have in mind is

16 the objective, that is, what is to be achieved with

17 criminal sanctions, criminal penalties, to a criminally

18 responsible perpetrator of a criminal act.

19 Let me repeat the relevant provision, that

20 is, the provision of Article 5 of the former federal

21 criminal law, that is, the Yugoslav federal criminal

22 law, paragraph 2, and I kindly ask the interpreters to

23 be as precise as possible. Paragraph 2 reads as

24 follows: "The general purpose of prescribing and

25 pronouncing criminal sanctions is the prevention of

Page 16040

1 socially endangering activities," that is, activities

2 or actions which represent a danger to society, "and

3 which violate or bring into jeopardy values of the

4 society." So this is the general goal, general

5 objective, of pronouncing criminal sanctions in

6 general.

7 However, the legislator has also stated the

8 specific purposes of specific punishments, and I gave

9 an example for Article 33 of the former federal

10 criminal law. This provision is of an instructive

11 nature and it states within the general objective of

12 criminal punishment, the legislator states the

13 following: "1) To prevent the perpetrator from

14 committing a crime again and his moral re-education."

15 This first point would fall under the category of

16 prevention.

17 Second is the educational role, that is, the

18 model to be served on others. Number 3 is to

19 strengthen morale, and you can see that this is

20 something that is rather ideological or characteristic

21 of the former system. This would fall into the

22 category of general objectives, general prevention.

23 I have also mentioned the concept of

24 retribution which was not incorporated as such. Of

25 course, objections can be raised to this attitude of

Page 16041

1 mine. If you saw the number of criminal offences which

2 carried that penalty, you could justifiably claim that

3 I am wrong, but it is true that, in practice, that

4 penalty was rarely pronounced and even more rarely

5 imposed.

6 As I said, I know only of one or maybe two

7 cases having to do with a father who came from Germany

8 from where he worked and killed his wife and six

9 children, but that death penalty was not imposed

10 because he hung himself while in detention.

11 That death penalty was executed, as far as I

12 know, in two cases only. It was executed in the case

13 of one man and one woman who committed a merciless

14 revenge murder. This is a so-called qualified type of

15 murder which carries a death penalty.

16 Q. It's the case that sentences of 20 years were

17 imposed more frequently than the death penalty; is that

18 correct?

19 A. You cannot say that, because the 20-year

20 prison term in respect of criminal acts for which it

21 was prescribed at the level of the republic was never

22 actually pronounced. That's why it was abolished

23 because it was seen as redundant. That's why, after

24 1976, it was abolished.

25 This particular type of sentence, the 20-year

Page 16042

1 prison sentence, functioned only as a substitute for

2 the death penalty, and it was a rare occurrence,

3 because death penalties were not very often pronounced.

4 Q. I'm sorry, sir. Is it your testimony that,

5 as far as you can remember, there has not been more

6 than one or two cases of 20-year sentences in the

7 former Yugoslavia?

8 JUDGE KARIBI-WHYTE: He has been saying

9 that. He has been saying that. He repeated that at

10 least three times.

11 A. As far as I can remember, yes.

12 MS. RESIDOVIC: I apologise. There has been

13 a mistake either in the transcript or I may have

14 misheard. The witness spoke about two cases of the

15 execution of the death penalties, and here I see two

16 cases of 20-year prison sentences. These are two

17 different things. I don't know whether this is a

18 mistake in the transcript or whether the witness

19 misspoke.

20 A. I thought that you were referring to the

21 death penalty.


23 Q. No, sir. I'm just asking, in general, that

24 although you stated there were very few cases, you only

25 remember one or two where the death penalty was

Page 16043

1 imposed, that sentences of 20 years were imposed more

2 frequently than one or two times?

3 A. Again, it could be pronounced as a substitute

4 for the death penalty.

5 Q. Yes. I think you've already indicated this,

6 that, in fact, the 20-year sentence was imposed more

7 frequently than was the death penalty. The death

8 penalty happened rarely, and 20-year sentences happened

9 more frequently than the death penalty; correct?

10 A. Yes, that's correct. The court could

11 pronounce a 20-year sentence.

12 MS. McHENRY: I have no further questions.

13 Thank you.

14 MR. MORAN: Your Honour, I just have one

15 question in re-examination, and I think I have gone way

16 over my 15 minutes.

17 Re-examined by Mr. Moran:

18 Q. Professor, I'm a little confused, and maybe

19 you can help me. On the 20-year sentence as an

20 alternative to the death penalty, could a court just

21 impose a 20-year sentence, or did the court first have

22 to determine that the death penalty was appropriate

23 under the law, and then it could mitigate or reduce the

24 death penalty to a 20-year sentence? Which is it,

25 Professor?

Page 16044

1 MS. McHENRY: I believe it's been asked and

2 answered. I'd object.

3 JUDGE KARIBI-WHYTE: What are you objecting

4 for? Can you kindly explain what the position is now?

5 I heard you said, perhaps, the 20-year term is no

6 longer irrelevant. As far as the Penal Code is

7 concerned, that has even been abolished. I don't know

8 what your answer will be to all these questions. Is it

9 true that you no longer have a 20-year term sentence?

10 A. Your Honour, there is no criminal act, both

11 in terms of federal and republic criminal laws, that

12 explicitly carries a 20-year prison sentence. Such a

13 sentence is not prescribed. What remains is the

14 provision contained in Article 38, paragraphs 2 and 3.

15 In relation to paragraph 2, it concerns

16 criminal acts which carry a death penalty. In these

17 cases, the court may also pronounce a 20-year prison

18 sentence. It is a provision of a general character.

19 Then we have paragraph 3 and the provision contained

20 therein, which says that the legislator can prescribe a

21 20-year prison sentence for serious forms of particular

22 criminal offences, but this is all we have at the

23 moment.

24 JUDGE KARIBI-WHYTE: If that satisfies Mr.

25 Moran, then I think that --

Page 16045

1 MR. MORAN: Your Honour, I think that

2 satisfies me. I want to thank the Professor for

3 coming. I want to thank you for allowing me to ask

4 that re-examination question.

5 JUDGE KARIBI-WHYTE: Thank you very much,

6 Professor Tomic. I think this is all that we have for

7 you. I think we're very grateful for you spending the

8 whole day with us here.

9 THE WITNESS: Thank you, too. I hope I've

10 been of some assistance. I hope that my testimony will

11 help you in reaching the right decision. Thank you

12 very much.

13 (The witness withdrew)

14 JUDGE KARIBI-WHYTE: Mr. Moran, do you have

15 any other witness?

16 MR. MORAN: There are two other matters. One

17 is, as we told the Court, we will be presenting a

18 written statement from Mrs. Delic, as soon as we get it

19 typed and presented, and we could do that tomorrow or

20 before the end of the week, at least. The other thing

21 is Mr. Delic wishes to exercise his right of allocution

22 and make a statement directly to the Tribunal in

23 mitigation of punishment. Do you care to do that now

24 or later?

25 JUDGE KARIBI-WHYTE: If he cares to, he can

Page 16046

1 be sworn and he can make his statement.

2 MR. MORAN: Your Honours, as I understand it,

3 in the Tadic case, it was just a statement and --

4 JUDGE KARIBI-WHYTE: If he wants to make a

5 statement, that's fine. I think that is his right to

6 do that.

7 MR. MORAN: Technically, would you like him

8 to do it from the witness box or would you like him to

9 do it from where he's at?

10 JUDGE KARIBI-WHYTE: From where he sits.

11 MR. NIEMANN: Your Honour, I don't understand

12 this procedure. Is he going to be sworn and are we

13 going to cross-examine him or what?

14 JUDGE JAN: Every accused can make a

15 statement in mitigation of his sentence. I think

16 that's the practice in England too and in Australia.

17 MR. NIEMANN: No. You're talking about the

18 ancient dock statement, and the statement before the

19 courts has been abolished in those jurisdictions. I

20 don't know whether it's been abolished in England, but

21 it's certainly been abolished in most jurisdictions.

22 It comes from the time when --

23 JUDGE JAN: He doesn't have to be under

24 oath. If he wants to say something in support of his

25 case in mitigation of sentence, he can do it.

Page 16047

1 MR. NIEMANN: Is he going to be subjected to

2 cross-examination? That's my main concern.

3 JUDGE KARIBI-WHYTE: He doesn't have to be.

4 MR. MORAN: Your Honour, just to help Mr.

5 Niemann, I don't know about the law in Australia, but

6 the law in the United States Federal Court is pretty

7 clear, that if a sentencing judge does not specifically

8 address the defendant individually and ask him if there

9 is a statement he'd wish to make in mitigation, that

10 sentence is vacated automatically without a showing of

11 harm.

12 JUDGE JAN: And he doesn't have to be under

13 oath.

14 MR. MORAN: No. The judge just says, "Do you

15 have anything to say, Mr. Jones." Actually, the case

16 in the Supreme Court Green versus United States. If

17 you'd like, tomorrow, I can bring a copy of it.

18 I understand that in the Tadic case, although

19 Mr. Niemann was there and I wasn't, Judge McDonald

20 talked about Mr. Tadic making a statement. It appears

21 to me that that procedure has been adopted by this

22 Tribunal.

23 MR. NIEMANN: Mr. Tadic gave evidence, Your

24 Honour. He gave evidence and we cross-examined him.

25 So I don't know what Mr. Moran is talking about.

Page 16048

1 JUDGE JAN: He took an oath?

2 MR. NIEMANN: Yes, and we cross-examined

3 him.

4 JUDGE KARIBI-WHYTE: I know you're relying on

5 Rule 85 as to the accused appearing as a witness

6 MR. NIEMANN: Yes. He's entitled to appear

7 as a witness and --

8 JUDGE JAN: I'm not sure you can call him a

9 witness. He's making a statement in his defence.

10 MR. NIEMANN: The accused can always give

11 evidence before the proceedings. An unsworn statement,

12 which goes back to the beginning of prehistory, Your

13 Honours, which, in most jurisdictions, has been

14 abolished, but apparently not in the United States, is

15 something which is no longer considered necessary.

16 There is a great deal of historical

17 justification for it in its time, but it has no

18 application in the modern court environment. In most

19 jurisdictions it's been abolished.

20 JUDGE KARIBI-WHYTE: Here he wishes to give

21 evidence in mitigation, not with respect to guilt or

22 innocence, which is a fairly different thing.

23 MR. NIEMANN: Yes. I don't know what stage

24 it's done at in the United States, but I'd be very

25 surprised if it was done in the course of a trial and

Page 16049

1 before the jury has returned its verdict.

2 MR. MORAN: Well, in the United States, the

3 procedure is first we get a verdict, and then we talk

4 about punishment, if it gets to that, but the procedure

5 that's been adopted by the Tribunal is to combine the

6 two procedures. If the defendant is to have any way of

7 making a statement, sworn or unsworn, to the Court in

8 mitigation of punishment, then it has to be done at

9 this point. I think that that is an ancient right.

10 It's a right that I'm familiar with, and I think that

11 most lawyers are familiar with and it's --

12 JUDGE JAN: What is the position in the

13 United Kingdom?

14 MR. MORRISON: If I may assist, I do sit as a

15 judge in the United Kingdom in the criminal courts on a

16 part-time basis as a recorder of the Crown Court. Mr.

17 Niemann is perfectly correct that the unsworn statement

18 from the dock has been abolished, so far as giving

19 evidence in the proceedings is concerned when it comes

20 to triable issues before a jury. But, of course, it is

21 still available for any defendant to make an unsworn

22 statement from the dock or any other part of the court

23 if it goes purely to mitigation.

24 Of course, as I understand it, the course

25 that Mr. Moran wishes to adopt is the latter, to make

Page 16050

1 an unsworn statement that goes purely to mitigation.

2 It's no more or less than if the judge asks the

3 defendant if he has anything to say before sentence.

4 Although we haven't had verdicts yet, of course, this

5 is because we are having a combined hearing.

6 If this was a procedure adopted in the United

7 Kingdom, I am certain that he would be able, at this

8 stage, to make an unsworn statement that related purely

9 to matters of mitigation. I would have to say, and I

10 apologise if this is trespassing, in any way, upon Your

11 Honours' discretion or jurisdiction, that it's

12 something I do constantly in cases where the defendant

13 doesn't give evidence. I always ask him if he wishes

14 to make a statement, if there is a conviction, and

15 before I sentence him.

16 JUDGE KARIBI-WHYTE: I don't think the Trial

17 Chamber has any apologies to make in respect of this,

18 in spite of the fact that we are adopting a new

19 procedure. We're convinced that, juridically, there is

20 nothing stopping an accused person from making a

21 statement in mitigation, if that is all he's doing.

22 MR. MORRISON: Your Honour, with respect,

23 that is the law as it stands in the United Kingdom,

24 but, of course, Mr. Niemann is perfectly correct to say

25 that unsworn statements from the dock as to matters of

Page 16051

1 evidence going to issues of guilt have, of course, been

2 abolished, but that's an entirely separate procedure.

3 JUDGE JAN: When he makes an unsworn

4 statement, he is not cross-examined.

5 MR. MORRISON: Not at all. There is no basis

6 for cross-examining. The only time that

7 cross-examination comes into the sentencing procedure

8 in the United Kingdom is if the Defence calls evidence,

9 and that is sworn evidence. The defendant himself can

10 make an unsworn statement, but if he elects to call

11 evidence in mitigation, then that is usually a sworn

12 statement, or if it isn't sworn, at least it's a

13 statement made under a solemn declaration, but it is

14 subject to cross-examination.

15 MR. MORAN: Your Honour, we have one --

16 JUDGE JAN: Thank you very much.

17 MR. MORRISON: You're very welcome.

18 MR. MORAN: -- we have one procedure in

19 American criminal jurisprudence that I know of where a

20 person is allowed to make, I presume it's called, a

21 statement from the dock where he's talking, unsworn,

22 about guilt and innocence. That is in trials by Court

23 Marshall under the Uniform Code of Military Justice.

24 This is a very different thing from making a statement

25 in mitigation of punishment.

Page 16052

1 The rule that I am familiar with, at least in

2 trials where the court is doing the sentencing, is that

3 the defendant, prior to the imposition of sentence, can

4 say anything he wants to the court that he thinks may

5 convince the court to mitigate the punishment.

6 JUDGE KARIBI-WHYTE: Actually, I did not

7 think the accused should come into the witness stand,

8 because he is not speaking as a witness here. He is

9 speaking as an accused person standing in the dock as

10 he is, and I regard where they are as the dock for this

11 purpose.

12 MR. MORAN: Your Honour, that's the procedure

13 that I'm familiar with.

14 JUDGE KARIBI-WHYTE: So we could do that.

15 MR. MORAN: It is, I think, the universal

16 procedure in the jurisdictions that I've practised in.

17 JUDGE KARIBI-WHYTE: Mr. Delic can make

18 whatever statements he thinks he could in mitigation.

19 MR. MORAN: Thank you very much, Your

20 Honours.

21 MR. DELIC: Good afternoon to all. I am glad

22 that after two years of being here I am finally able to

23 address you. Initially, I did not want to speak,

24 because I said everything I could to the Prosecution,

25 but after the testimony of Esad Landzo, I cannot sleep

Page 16053

1 at night because I never ordered Esad Landzo to kill

2 anyone, to set anyone on fire.

3 MS. McMURREY: Your Honour, I'm going to

4 object. This seems to be going to guilt or innocence

5 at this point, instead of mitigation of punishment.

6 MR. MORAN: Your Honour, I think that

7 anything that Mr. Delic --

8 JUDGE JAN: Supposing a person is convicted

9 and the judge asks him what should be the quantum of

10 sentence, can he, at that stage, say "I'm still

11 innocent"?

12 MS. McMURREY: It's confusing in the --

13 JUDGE KARIBI-WHYTE: It's not confusing.

14 JUDGE JAN: Can't he say that he was guilty

15 or innocent?

16 MS. McMURREY: Yes, I understand.

17 JUDGE KARIBI-WHYTE: Try to understand the

18 ethics of the profession.

19 MR. NIEMANN: Your Honours, I did think that

20 this matter was going to proceed on the basis that it

21 would only be matters in mitigation. I object if there

22 is going to be any issues raised by the accused which

23 go to the question of guilt or innocence, and I support

24 my colleague in that.

25 MR. MORAN: Your Honour, I think that the

Page 16054

1 rule that I'm familiar with is that anything this

2 accused wishes to say that he believes could convince

3 the sentencer to mitigate the punishment -- there's an

4 absolute horror story out of a court in New York where

5 a Mafia member knew he was going to get life, and he

6 proceeded to curse at the court for an hour, and that

7 was permissible. By the way, he did get life on that

8 case. But whatever the defendant wishes to say is

9 germane at this point.

10 JUDGE KARIBI-WHYTE: Now, let's not confuse

11 the two situations where one is still pleading

12 innocence. As I said from the beginning when we

13 started, we've started a procedure which has some

14 ambiguities in it. The accused persons are still under

15 our Rules and our law and are presumed to be innocent.

16 They are still, at the same time, expected to plead in

17 mitigation of guilt. This is a fairly clear thing.

18 But here, if the accused person wants to say

19 anything which he expects the Trial Chamber to take

20 seriously, he should not reopen matters which affect

21 guilt. He should, as much as he can, plead, in

22 explanation, of whatever might have gone against him

23 and not say things which would appear to involve other

24 accused persons at the trial. Because mitigation is

25 mitigation as to one's own guilt and should not affect

Page 16055

1 other persons in the trial.

2 MR. MORAN: Your Honour, I don't think he

3 wants to say anything that would affect the sentence

4 that may be imposed if there's a finding of guilt as to

5 any other defendant. That's clearly between the Trial

6 Chamber and that defendant.

7 JUDGE KARIBI-WHYTE: Initially, I thought

8 that when he opened with that statement, that it was

9 just an opening statement, that he wouldn't go

10 forward. I agree that if somebody says certain things

11 against you, you might not sleep at night. That's

12 understandable. But perhaps he might speak of matters

13 in mitigation that are not --

14 MR. MORAN: Your Honour, since I didn't write

15 this, and this is Mr. Delic's statement, I'm not sure

16 what's going to be said next. I think if we just let

17 him continue --

18 MS. McMURREY: Your Honours, if I just might

19 make a suggestion, if he does go into matters of guilt

20 or innocence, then he should be sworn and take the

21 stand. If he sticks with mitigation of punishment,

22 then he can have his unsworn statement.

23 MR. MORAN: Of course, I agree with Judge

24 Jan, that a person who has been found guilty by a jury,

25 he can then get up in front of the sentencing judge and

Page 16056

1 say, "Judge, the jury has found me guilty, but I'm

2 innocent, and please give me probation."

3 JUDGE KARIBI-WHYTE: I think he is free to

4 say whatever position he wants to and to make his plea

5 in mitigation.

6 MR. MORAN: I agree with you, Your Honour.

7 JUDGE KARIBI-WHYTE: Let's hear Mr. Delic.

8 MR. DELIC: Thank you, Mr. President.

9 MR. NIEMANN: I'm sorry, Your Honours.

10 There's something wrong with our headsets. We're

11 getting the wrong translation. I don't know what it

12 is, but I can't follow the proceeding. I'm getting a

13 different translation.

14 THE INTERPRETER: Counsel, the problem is

15 that Mr. Delic's microphone is on, and it can be heard

16 through his earphones. That is all it is.

17 JUDGE JAN: Actually, I'm hearing two

18 versions, the English version and the Bosnian version.

19 JUDGE KARIBI-WHYTE: Yes. You may proceed,

20 please.

21 MR. DELIC: Thank you, Mr. President. May I

22 proceed where I left off?


24 MR. DELIC: Thank you. In other words, never

25 in my life, while I stayed in Celebici, did I order

Page 16057

1 Mr. Landzo. I'm looking at him in the eyes. I never

2 told you to murder someone, to perform fellatio. Why

3 aren't you ashamed of yourself to say that somebody

4 told you to do so? You can lie to some people for

5 awhile, but you will not be able to lie all the time.

6 MS. McMURREY: Mr. Delic is addressing

7 Mr. Landzo. He is not addressing the Court right now,

8 and he is still going to issues of guilt or innocence.

9 JUDGE KARIBI-WHYTE: Actually, if you had

10 this much in the approach to the matter, you could have

11 also had Mr. Landzo go into the witness box and deny

12 it, because this is directly alleged to him.

13 This is not right. If you are making any

14 statements in mitigation, the Trial Chamber will listen

15 to that.

16 MR. DELIC: Mr. President, I could not even

17 dream that somebody would be so rotten to tell

18 somebody -- to be told, ordered, that somebody should

19 be set on fire. I, for the first time, heard about the

20 fellatio of the Djordjic brothers. I had never heard

21 of it before in my life.

22 I would only like to request one more thing.

23 I have spent enough time, and I would not like to go to

24 prison because of Esad Landzo's lies. This is all I

25 have to say.

Page 16058

1 JUDGE KARIBI-WHYTE: There is nothing going

2 to mitigation in this. It is not part of any

3 mitigating evidence.

4 MS. McMURREY: Your Honour, based on the fact

5 that it was mostly addressed to Mr. Landzo and not the

6 Trial Chamber and dealt with no issues concerning

7 mitigation, I move that the whole statement, the whole

8 right of allocation, be struck from the record and

9 disregarded.

10 MR. NIEMANN: The Prosecution supports that

11 application, Your Honour. None of it went to the issue

12 of mitigation.

13 JUDGE KARIBI-WHYTE: It's not for you to

14 say. The Trial Chamber knows what to take into account

15 in determining mitigation or not. We've heard him, and

16 it doesn't matter whether you made such a submission or

17 not. We know what he said in his statement in

18 mitigation.

19 Mr. Moran, I think that's all we have from

20 your --

21 MR. MORAN: Yes, Your Honour. Two little

22 housekeeping matters. The registry has informed me

23 that, one, they had to renumber those documents that I

24 provided earlier today, and, two, I apparently forgot

25 to move to introduce them. So with that, I would move

Page 16059

1 to introduce those documents under whatever the proper

2 numbers are.

3 JUDGE KARIBI-WHYTE: Whatever they are, you

4 can move to introduce them.

5 MR. MORAN: Again, just so the record is

6 clear, for about the third time, we will be

7 supplementing with the written statement, under

8 whatever the next number is, for Mrs. Delic. With

9 that, we rest.

10 JUDGE KARIBI-WHYTE: Who is next?

11 MR. MORRISON: Please, Your Honour, it now

12 falls upon Mr. Mucic to present his submissions in

13 mitigation. There are a total of six witnesses to give

14 short oral evidence. My application, at this stage, is

15 to adjourn his submissions until tomorrow, really, for

16 two reasons.

17 First of all, it's very late in the Trial

18 Chamber's day, and the Trial Chamber has already heard

19 a lot of evidence today. Secondly and pertinently,

20 those witnesses were seen by myself and Madam Residovic

21 until approximately midnight last night to get -- I beg

22 your pardon, Madam Buturovic, perhaps an indication of

23 how tired I am -- until after midnight last night to

24 take proofs of evidence from them. The witnesses I

25 know were, therefore, up until at least midnight, and

Page 16060

1 they came to court this morning in anticipation of

2 giving that testimony much earlier.

3 I don't criticise my learned friend, Mr.

4 Moran, but we all thought that the Professor was going

5 to be, perhaps, an hour this morning and that they

6 would be started --

7 JUDGE JAN: That's what we thought too.

8 MR. MORRISON: The net effect is that the six

9 witnesses have literally been sitting in a room all day

10 now, and I don't think it would be fair to them or,

11 indeed, to anybody else to expect them to give us their

12 best at this time of day. As we only have something in

13 the order of 14 minutes left, I make the application

14 for an adjournment until tomorrow.

15 I can give this assurance, that subject to

16 cross-examination, we will go no further than lunch time

17 tomorrow.

18 JUDGE KARIBI-WHYTE: I think that's

19 satisfactory to me, and I think my colleagues also

20 agree. We can adjourn now and come back at 10.00 a.m.

21 Yes, have you anything to say?

22 MS. McMURREY: Yes. I just wanted to ask the

23 Court's permission to be excused from the proceedings

24 for the rest of the week. Ms. Nancy Boler will be here

25 to represent Mr. Landzo, but I would like to ask to be

Page 16061

1 excused for the rest of the week.

2 JUDGE KARIBI-WHYTE: You can be excused.

3 MS. McMURREY: Thank you.

4 JUDGE KARIBI-WHYTE: The Trial Chamber will

5 now rise.

6 --- Whereupon the hearing adjourned at

7 5.17 p.m., to be reconvened on

8 Wednesday, the 14th day of October, 1998

9 at 10.00 a.m.