1 Wednesday, 3 May 2006
2 [Open session]
3 [Appeals judgement]
4 [The appellants entered court]
5 --- Upon commencing at 2.17 p.m.
6 JUDGE POCAR: I would like to begin by saying good afternoon to
7 Mr. Naletilic and Mr. Martinovic, to counsel for the Prosecution, the
8 Defence, the interpreters, and the staff from the Court management support
10 Madam Registrar, could you please call the case.
11 THE REGISTRAR: Good afternoon, Your Honours. This is case number
12 IT-98-34, the Prosecutor versus Mladen Naletilic and Vinko Martinovic.
13 JUDGE POCAR: Thank you, Madam Registrar.
14 Mr. Naletilic, and Mr. Martinovic, can you clearly hear and
15 understand the translation?
16 THE APPELLANT NALETILIC: [Interpretation] Yes, Your Honour.
17 THE APPELLANT MARTINOVIC: [Interpretation] Yes, thank you,
18 Your Honour.
19 JUDGE POCAR: I would now ask for the appearances for the parties.
20 First of the Defence.
21 MR. HENNESSY: Good afternoon, Your Honour, Matthew Hennessy, and
22 Chris Meek for Mr. Naletilic.
23 MR. PAR: [Interpretation] Good afternoon, Your Honour, Zelimir Par
24 and Kurt Kerns on behalf of Mr. Martinovic.
25 JUDGE POCAR: I thank you.
1 Now for the Prosecution.
2 MR. FARRELL: Good afternoon, Your Honour. Good afternoon to my
3 learned colleagues. Norman Farrell, Mr. Peter Kremer, Ms. Marie-Ursula
4 Kind, Mr. Steffen Wirth, Mr. Xavier Tracol, and our case manager, Lourdes
5 Galicia, for the Prosecution.
6 JUDGE POCAR: Thank you, as the Registrar announced, the case on
7 the agenda is Prosecutor versus Mladen Naletilic and Vinko Martinovic. In
8 Accordance with the scheduling order issued on 18 April 2006, today the
9 Appeals Chamber will deliver its judgement.
10 Following the practice of the International Tribunal, I will not
11 read out the text of the judgement except for the disposition. Instead, I
12 will summarise the issues on this appeal and the findings of the Appeals
14 I emphasise that the summary is not part of the written judgement,
15 which is the only authoritative account of the Appeals Chamber's rulings
16 and reasons. Copies of the written judgement will be made available to
17 the parties at the conclusion of the hearing.
18 The events giving rise to this appeal took place between April
19 1993 and January 1994 during the conflict between the Croatian Defence
20 Council, HVO, and the Army of Bosnia and Herzegovina, ABiH in Mostar and
21 its surrounding municipalities in south-western Bosnia and Herzegovina.
22 In particular, this appeal deals with crimes related to the HVO attack on
23 the villages of Sovici and Doljani that began on 17 April 1993, the HVO
24 attack on Mostar that began on 9 May 1993, and the HVO attack on the
25 village of Rastani beginning on 22nd September, 1993.
1 Mr. Naletilic founded a military group called the Convicts'
2 Battalion or the KB, which after the conflict in Mostar against the Serb
3 and Montenegrin forces in 1992 became a professional unit for special
4 combat under the direct command of the HVO Main Staff. Attached to the KB
5 were several anti-terrorist groups, units, called ATGs. On 31st of March
6 2003, the Trial Chamber found Mr. Naletilic guilty under eight counts for
7 the crimes of persecution as a crime against humanity, unlawful labour as
8 a violation of the laws or customs of war, torture as a crime against
9 humanity, torture as a grave breach of the Geneva Conventions of 1949,
10 wilfully causing great suffering or serious injury to body or health as a
11 grave breach of the Geneva Conventions of 1949, unlawful transfer of a
12 civilian as a grave breach of the Geneva Conventions of 1949, wanton
13 destruction, not justified by military necessity as a violation of the
14 laws or customs of war, and plunder of public or private property as a
15 violation of the laws or customs of war.
16 Mr. Naletilic was found to be individually responsible pursuant to
17 Article 7(1) of the Statute of the Tribunal for certain crimes and
18 responsible as a superior under Article 7 (3) of the Statute for other
19 crimes. The Trial Chamber imposed on Mr. Naletilic a single sentence of
20 20 years of imprisonment.
21 Mr. Martinovic joined in 1992 the Croatian Defence forces and
22 became a commander. At least from mid-May 1993 he was the commander of a
23 group of soldiers who held the positions at a confrontation line in
24 Mostar. He was the commander of the Vinko Skrobo ATG which was part of
25 the KB. The Trial Chamber found Mr. Martinovic guilty under nine counts,
1 for the crimes of persecution as a crime against humanity, inhuman acts as
2 a crime against humanity, inhuman treatment as a grave breach of the
3 Geneva Conventions of 1949, unlawful labour as a violation of the laws or
4 customs of war, wilfully causing great suffering or serious injury to body
5 or health as a grave breach of the Geneva Conventions of 1949, murder as a
6 crime against humanity, wilful killing as a grave breach of the Geneva
7 Conventions of 1949, unlawful transfer of a civilian as a grave breach of
8 the Geneva Conventions of 1949, and plunder of public or private property
9 as a violation of the laws or customs of war.
10 Mr. Martinovic was found to be directly responsible under Article
11 7(1) of the Statute for crimes as well as responsible as a superior under
12 7(3), Article 7(3) of the Statute for other crimes. The Trial Chamber
13 imposed on Mr. Martinovic a single sentence of 18 years of imprisonment.
14 I will now address the grounds of appeal in turn, starting with
15 Mr. Naletilic and Mr. Martinovic's grounds concerning due process of law
16 and their grounds relating to the international character of the armed
17 conflict followed by two of the Prosecution's grounds relating to
18 persecutions and deportation.
19 I will then address Mr. Naletilic and Mr. Martinovic's grounds
20 challenging various factual findings in the trial judgement and the
21 Prosecution's appeal together with Mr. Martinovic's appeal on cumulative
23 Lastly, I will address Mr. Naletilic's and Mr. Martinovic's
24 grounds of appeal on sentencing, which will be followed by reading of the
25 disposition of the judgement.
1 Now, turning to Mr. Naletilic's and Mr. Martinovic's grounds
2 relating to due process of law, Mr. Naletilic alleges under his 12th and
3 21st grounds of appeal, and Mr. Martinovic under his 2nd ground of appeal,
4 that the indictment was too vague and that it did not sufficiently plead a
5 number of incidents for which they were found responsible.
6 The Appeals Chamber recalls that the question of whether an
7 indictment is pleaded with sufficient particularity is dependent upon
8 whether it sets out the material facts of the Prosecution case with enough
9 detail to inform an accused clearly of the charges against him or her so
10 that the accused may prepare a proper defence.
11 In some instances, however, a conviction may be entered under a
12 defective indictment where it is deemed to have been cured because the
13 accused has received a timely, clear, and consistent information from the
14 Prosecution detailing the factual basis underpinning the charges against
15 him or her such that the accused was in a reasonable position to
16 understand the charges brought.
17 Where the failure to give sufficient notice of the legal and
18 factual reasons for the charges against the accused has violated the right
19 to a fair trial, no conviction may result.
20 While the Appeals Chamber finds that the indictment failed to
21 plead material facts in relation to the charges for most of the incidents
22 challenged by Mr. Naletilic and Mr. Martinovic, it has found that the
23 Prosecution provided timely, clear, and consistent information that cured
24 this defects in the indictment with the exception of the following three
25 incidents: First, the turning of a private property into the headquarters
1 of Mr. Martinovic's unit around 7 July 1993; second, the incident of
2 beating in July or August 1993, involving several prisoners in the area
3 under Mr. Martinovic's command; and finally the incidents of beating
4 involving a prisoner called Tsotsa. Thus the Trial Chamber erred in
5 finding Mr. Martinovic responsible for these three incidents. The Appeals
6 Chamber dismisses in its entirety Mr. Naletilic's 12th ground of appeal
7 and his 21st ground of appeal in so far as it relates to the alleged
8 vagueness of the indictment.
9 It allows Mr. Martinovic's 2nd ground of appeal in part.
10 Next, as part of his 1st ground of appeal, Mr. Martinovic submits
11 that the Trial Chamber erred in law in finding that alternative charge
12 could be brought against him. The Appeals Chamber holds that while
13 alternative charging on the basis of the same conduct is generally
14 permissible, it depends on the circumstances of the case. In this case,
15 the Trial Chamber was correct in finding that alternative charging was
16 permissible. The Appeals Chamber recalls that it has previously held that
17 cumulative charging on the basis of the same acts is generally allowed on
18 the basis that prior to the presentation all of the evidence, it is not
19 possible to determine to a certainty which of the charges brought against
20 an accused will be proven. The same reasoning allows for alternative
21 charging. As with cumulative charging, the Trial Chamber is better poised
22 after the parties' presentation of the evidence to evaluate which of the
23 charges may be retained based upon the sufficiency of the evidence.
24 The Appeals Chamber therefore dismisses Martinovic's subground of
25 appeal in its entirety.
1 Turning now to Mr. Naletilic and Mr. Martinovic's ground of appeal
2 concerning international character of the armed conflict, the Trial
3 Chamber found both Mr. Naletilic and Mr. Martinovic guilty on several
4 counts of grave breaches of the Geneva Conventions of 1949 pursuant to
5 Article 2 of the Statute. On appeal, Mr. Naletilic, under his 37th ground
6 of appeal, and Mr. Martinovic, under his 1st ground of appeal, submit that
7 the Trial Chamber erred in law by holding that an international armed
8 conflict existed during the period and in the area relevant to the
9 indictment and consequently by finding them guilty of grave breaches of
10 the Geneva Conventions of 1949. They submit that the evidence presented
11 to the Trial Chamber was unreliable and in addition that they cannot be
12 held responsible for the character of the armed conflict.
13 The Appeals Chamber finds that Mr. Naletilic and Mr. Martinovic's
14 claim concerning the unreliability of the evidence do not meet the formal
15 requirements for raising an appeal and as such, they are dismissed.
16 Next, the Appeals Chamber notes that Mr. Naletilic and
17 Mr. Martinovic were not found responsible for the fact that the conflict
18 was international but, rather, for the crimes committed in the context of
19 an international armed conflict. However, the Appeals Chamber finds that
20 a related issue which both Mr. Naletilic and Mr. Martinovic assert by
21 implication requires further consideration. Namely, whether the Trial
22 Chamber erred in law by failing to require the Prosecution to prove, as an
23 element of crimes under Article 2 of the Statute, that they were aware of
24 the international character of the armed conflict. The Appeals Chamber
25 recalls that Article 2 of the Statute gives the International Tribunal the
1 power to prosecute persons committing or ordering to be committed grave
2 breaches of the Geneva Conventions of 1949, namely certain acts against
3 persons, property protected under the provisions of the relevant Geneva
4 Convention. The language of the Geneva Conventions makes clear that the
5 grave breaches regime applies only in international armed conflicts. In
6 Tadic, the Appeals Chamber concluded that the international armed conflict
7 element had been incorporated into Article 2 of the Statute such that it
8 only applies to offences committed within the context of international
9 armed conflicts.
10 The Appeals Chamber holds that the existence and international
11 character of an armed conflict are both jurisdictional prerequisites as
12 established in Tadic and substantive elements of crimes pursuant to
13 Article 2 of the Statute. In Kordic and Cerkez, the Appeals Chamber
14 stated that although the accused need not make a correct legal evaluation
15 as to the international character of the armed conflict, he must be aware
16 of the factual circumstances; that is, that the foreign state was involved
17 in the armed conflict in order to be held responsible for an Article 2
18 crime. This is because the principle of individual guilt requires that an
19 accused can only be convicted for a crime if his mens rea comprises the
20 actus reus of the crime. To convict him without proving that he knew of
21 the facts that were necessary to make his conduct a crime is to deny him
22 his entitlement to the presumption of innocence. Thus, the Prosecution's
23 obligation to prove intent for a crime charged under Article 2 also
24 encompasses establishing the accused's knowledge of the factual
25 circumstances pertinent to the internationality of an armed conflict.
1 As a result, the Appeals Chamber finds that the Trial Chamber
2 erred in failing to explicitly find that the Prosecutor showed that
3 Mr. Naletilic and Mr. Martinovic were aware of the facts making the armed
4 conflict international. However, this error did not affect the trial
5 judgement. Based on the entirety of the findings contained in the trial
6 judgement, a reasonable trier of fact could only have found that
7 Mr. Naletilic and Mr. Martinovic were aware of the requisite factual
9 I now turn to the Prosecution's grounds of appeal relating to
10 persecutions and to deportation. As its 1st ground of appeal, the
11 Prosecution contends that the Trial Chamber adopted an incorrect approach
12 in law and in fact to the evaluation of the evidence in holding that
13 certain crimes committed by Martinovic did not constitute underlying acts
14 of persecutions due to insufficient evidence that they were committed on
15 racial, political or religious grounds. The Prosecution contends that the
16 Trial Chamber did not consider whether the discriminatory grounds could be
17 inferred from the context of the incidents or the evidence as a whole.
18 The Appeals Chamber recalls that it is well established that
19 discriminatory intent may be inferred from the context of an attack on the
20 civilian population where it is substantiated by the circumstances
21 surrounding the acts allegedly underlying the crime of persecutions.
22 However, the Appeals Chamber finds that the Prosecution has failed to show
23 that the circumstances surrounding the incidents it raises substantiate
24 its claim that the acts in question were carried out with discriminatory
25 intent. The Appeals Chamber therefore dismisses the Prosecution's 1st 1st
1 ground of appeal in its entirety.
2 As its 3rd ground of appeal the Prosecution contends that the
3 Trial Chamber erred in law in holding that deportation requires the
4 transfer of persons across state borders in order to distinguish it from
5 forcible transfer. The Appeals Chamber notes that there is no occasion in
6 this case to define the elements of deportation as a crime against
7 humanity under Article 5(D) of the Statute as the indictment included no
8 charges under that Article. The Appeals Chamber therefore need not
9 address the Trial Chamber's comments in paragraph 870 of its judgement to
10 the effect that the International Tribunal's jurisprudence defines
11 deportation as transfer across a state border. The Appeals Chamber also
12 sees no need to consider the issue as a matter of general significance to
13 the International Tribunal's jurisprudence as the issue has been settled
14 in the Stakic appeal judgement.
15 Furthermore, the question whether deportation encompasses a border
16 element is irrelevant for the purposes of liability under Article 5(H)
17 because acts of forcible displacement are equally punishable as underlying
18 acts of persecutions whether or not a border is crossed. It is not
19 necessary for the purposes of a persecution conviction to distinguish
20 between the underlying acts of deportation and forcible transfer. The
21 criminal responsibility of the accused is sufficiently captured by the
22 general concept of forcible displacement. To the extent the Trial Chamber
23 suggested otherwise it erred in law but this error did not affect the
24 judgement as both Mr. Naletilic and Mr. Martinovic were in any event
25 convicted for persecutions through the underlying act of forcible
2 For these reasons, Judge Schomburg dissenting, the Prosecution's
3 3rd ground of appeal is dismissed.
4 Next, I address Mr. Naletilic's and then Mr. Martinovic's ground
5 of appeal under which they allege that the Trial Chamber committed various
6 errors in making its factual findings. I will not summarise each of these
7 grounds of appeal in detail. Rather, I will focus on the merits of Mr.
8 Naletilic's, 3rd, 6th, and 21st ground of appeal as well as parts of his
9 4th and 8th grounds. Mr. Martinovic's subgrounds will be addressed in so
10 far as they relate to the use of detainees to assist in the looting of
11 private property.
12 With respect to the remaining grounds of appeal, on the Trial
13 Chamber's factual findings, the Appeals Chamber has dismissed them for
14 reasons explained in the judgement.
15 Turning first to Mr. Naletilic's grounds of appeal, the Trial
16 Chamber found that throughout the time relevant to the indictment, he was
17 the overall commander of the KB and the attached ATG units. Mr. Naletilic
18 challenges the Trial Chamber's finding of a superior-subordinate
19 relationship supporting criminal responsibility under Article 7(3) for
20 certain offences. He contests, in particular, the Trial Chamber's
21 reliance on exhibit PP704, a salary list for members of the KB and ATG
22 units dated November 1993, on the testimony of Witness Falk Simang, and
23 finally, on Exhibit PP928, the so-called Rados diary for a finding of
24 Article 7(3) criminal responsibility.
25 Having considered each of the instances in which Mr. Naletilic
1 claims that the Trial Chamber erred in relying on the salary list for a
2 member of the KB and ATG units, the Appeals Chamber finds that with the
3 exception of two of them, the Trial Chamber's reliance on this exhibit did
4 not constitute an error. The first such instance concerns the Trial
5 Chamber's finding based only on the salary list that Miro Marjanovic was a
6 subordinate of Mr. Naletilic at the time when he administered beatings to
7 prisoners in the Heliodrom. The Trial Chamber did not conclude that Miro
8 Marjanovic was under the command of Mr. Naletilic, prior to or after
9 November 1993, nor did it make a finding as to when Mr. Marjanovic
10 administered beatings on the prisoners in the Heliodrom. The Appeals
11 Chamber has reviewed the evidence of those witnesses whom the Trial
12 Chamber relied on for its finding that Miro Marjanovic was among the most
13 notorious perpetrators of beatings at the Heliodrom. With the exception
14 of one witness who refers to an incident in which he was beaten by a
15 certain Marjanovic in late May 1993, none of the other witnesses provides
16 specific dates as to when Miro Marjanovic beat prisoners at the Heliodrom.
17 The Appeals Chamber therefore finds that no reasonable trier of fact could
18 have found solely on the basis of the salary list the -- that it had been
19 established beyond reasonable doubt that Miro Marjanovic was a subordinate
20 of Mr. Naletilic when he administered beatings to prisoners in the
21 Heliodrom. This leads to a miscarriage of justice since, absent the
22 finding that Miro Marjanovic was a subordinate of Mr. Naletilic at the
23 relevant time, Mr. Naletilic could not have been found responsible
24 pursuant to Article 7(3) for the cruel treatment and wilfully causing
25 great suffering inflicted by Miro Marjanovic on prisoners at the
2 The second instance concerned the Trial Chamber's finding that
3 Ivica Kraljevic, the warden of the Ljubuski prison was the same Ivica
4 Kraljevic listed in exhibit 704. Additional evidence admitted on appeal
5 shows that the warden of Ljubuski prison, Ivica Kraljevic, was not the
6 same Ivica Kraljevic that appears listed as a member of the KB in Exhibit
7 704. However, for reasons which I will state later on, it is not
8 necessary for the Appeals Chamber to address the consequences of the trial
9 judgement of this finding.
10 With respect to the testimony of Witness Falk Simang, the Appeals
11 Chamber dismisses all of Mr. Naletilic's arguments concerning the Trial
12 Chamber's alleged errors in relying upon this evidence for its factual
14 Turning now to the issue of the Rados diary, Mr. Naletilic argues
15 that the Trial Chamber erred in admitting the Rados diary as evidence in
16 rebuttal because it did not amount to evidence in rebuttal. Rather, he
17 argues, the diary was used to support and bolster the Prosecution's case
18 in chief. The Appeals Chamber notes that it will intervene to exclude
19 evidence in the event that it finds that the Trial Chamber committed a
20 discernible error in the exercise of its discretion to admit evidence and
21 that this error resulted in unfair prejudice to the appellant, thereby
22 rendering his trial unfair. In the present case, while the Trial Chamber
23 directed itself to the correct legal standard on the admissibility of
24 rebuttal evidence, it erred in applying this standard to the facts. It
25 found that the Rados diary was admissible as rebuttal evidence on the
1 basis that it concerned, and I quote, "The events related to Sovici and
3 The Appeals Chamber notes that the events in Sovici and Doljani
4 formed an integral part of a number of charges in the indictment and thus
5 were fundamental to the case brought by the Prosecution. Therefore,
6 evidence pertaining to the events in Sovici and Doljani should have been
7 brought as part of the Prosecution case in chief and not in its case in
8 rebuttal. However, the Appeals Chamber notes that Mr. Naletilic had ample
9 time and opportunity to challenge the Rados diary and to respond to the
10 allegations therein concerning the events in Sovici and Doljani, and did
11 make extensive use of this opportunity at trial. The Appeals Chamber
12 therefore finds that Mr. Naletilic did not suffer unfair prejudice as a
13 result of this error.
14 For these reasons, the Appeals Chamber allows in part
15 Mr. Naletilic's 1st and 3rd grounds of appeal. His 4th, 6th, and 8th
16 grounds of appeal are dismissed in their entirety.
17 Next, under his 21st ground of appeal, Mr. Naletilic argues that
18 the Trial Chamber erred in finding that he had the requisite mens rea
19 regarding the activities carried out by ATGs in the Ljubuski prison and in
20 Mostar. Mr. Naletilic's arguments concerning his responsibility for the
21 activities of ATGs in Mostar are dismissed for reasons set out in the
22 judgement. With regard to Ljubuski, the Trial Chamber's finding that
23 Mr. Naletilic had reason to know about the mistreatment of prisoners by
24 his subordinates in Ljubuski prison is essentially based on the fact that
25 he was present when KB soldiers severely mistreated Witness Y on one
1 occasion, while the bus transporting Witness Y and other prisoners to
2 Ljubuski prison got stuck in mud. The Appeals Chamber notes that the
3 Trial Chamber failed to make a finding that Mr. Naletilic was on notice
4 that his subordinates would return to Ljubuski prison to mistreat
5 prisoners there. As noted by the Trial Chamber itself, the evidence shows
6 that on the particular occasion when he witnessed the mistreatment of
7 Witness Y on the way to Ljubuski, Mr. Naletilic told his soldiers to stop
8 the beating and to get going. Although the Trial Chamber found that
9 evidence from several witnesses regarding the complaint of the warden of
10 Ljubuski prison about his inability to prevent KB soldiers from entering
11 the prison and mistreating prisoners was telling, it did not find that
12 Mr. Naletilic knew of their complaint.
13 The Appeals Chamber therefore finds that no reasonable trier of
14 fact could have found beyond a reasonable doubt on the sole basis of this
15 incident that Mr. Naletilic had reason to know that his subordinates would
16 commit such crimes in Ljubuski prison. The Trial Chamber's error led to a
17 Ms. Carriage of justice since, without proof of Mr. Naletilic's mens rea,
18 with respect to Ljubuski prison, Mr. Naletilic could not have been held
19 responsible pursuant to Article 7(3) for the cruel treatment and wilfully
20 causing great suffering inflicted upon prisoners at Ljubuski prison, and
21 for persecutions by these underlying acts. For these reasons the Appeals
22 Chamber allows in part Mr. Naletilic's 21st ground of appeal.
23 As part of his 2nd ground of appeal, Mr. Martinovic submits that
24 the Trial Chamber erred in finding him responsible for unlawful labour
25 under Article 7(3) of the Statute for the use of the detainees, Witnesses
1 F, YY, and AB, to assist in the looting of private property. Witness F
2 gave evidence that Stela's soldiers were present while he was forced to
3 assist in looting but that he only recognised one of them who was the
4 commander, namely Zubac. On cross-examination, the witness gave evidence
5 that he did not know with certainty which unit Zubac belonged to. In light
6 of this, the Appeals Chamber finds that it was not open to a reasonable
7 trier of fact to conclude on the basis of Witness F's testimony that Zubac
8 was Mr. Martinovic's subordinate. The Trial Chamber therefore erred in
9 finding that Witness F was forced to loot by Mr. Martinovic's soldiers.
10 With respect to Witness AB, the Appeals Chamber finds that in
11 light of the witness's testimony that he did not know whether it was
12 Mr. Martinovic's soldiers that forced him to loot, it was not open to a
13 reasonable trier of fact to conclude that Witness AB was forced by
14 Mr. Martinovic's subordinates to assist in looting. The Appeals Chamber
15 notes, however, that these errors did not lead to a miscarriage of justice
16 because the Trial Chamber was still presented with and relied on the
17 evidence that Witness YY was forced to loot by Mr. Martinovic's
18 subordinates which Mr. Martinovic has failed to demonstrate was in error.
19 Mr. Martinovic's subground of appeal is therefore dismissed.
20 I will now address Mr. Martinovic's subground of appeal and the
21 Prosecution's 4th ground of appeal on cumulative convictions.
22 Mr. Martinovic challenges cumulative convictions as such, and
23 argues that his cumulative convictions based on the same conduct cause him
24 prejudice because the same act is given multiple and aggravating
25 characterisations. The Appeals Chamber recalls that the permissibility of
1 cumulative convictions as well as the principles governing their
2 application is well established in the practice of International Tribunal.
3 And that its jurisprudence recognises that multiple convictions serve to
4 describe the full culpability of a particular accused or provide a
5 complete picture of his criminal conduct. The Appeals Chamber finds no
6 cogent reasons for departing from this jurisprudence. As a result,
7 Mr. Martinovic's subground of appeal is dismissed.
8 The Prosecution submits that because an underlying act of the
9 crime of persecutions did not amount to a crime under Article 5 of the
10 Statute, persecutions is necessary legally distinct from other Article 5
11 crimes. Specifically, the Prosecution argues that torture and
12 persecutions as Article 5 crimes each contain elements that are materially
13 distinct from those of the other. The Trial Chamber found Mr. Naletilic
14 responsible for persecutions under Article 5(H) of the Statute, torture
15 under Article 5(F) of the Statute, and torture under Article 2(B) of the
16 Statute for his treatment of Witnesses FF, and Z. However, the Trial
17 Chamber held that when there are positive findings in relation to both
18 persecutions and another crimes against humanity, the conviction that is
19 upheld is that of persecutions. For that reason, upon a comparison of
20 multiple convictions based on the same acts, the Trial Chamber entered
21 convictions only for persecutions under Article 5(H) and for torture under
22 Article 2(B) of the Statute in relation to the mistreatment of Witnesses
23 FF and Z. It therefore entered no conviction for torture under Article
24 5(F) for this incident.
25 The Appeals Chamber recalls that in the Kordic and Cerkez Appeal
1 Judgement it held that intra-Article 5 convictions under the Statute for
2 persecutions as a crime against humanity with other crimes against
3 humanity may be permissibly cumulative under the Celebici test. The
4 Appeals Chamber, Judge Schomburg and Judge Guney dissenting, finds that
5 the definition of persecutions contains materially distinct elements not
6 present in the definition of torture under Article 5 of the Statute.
7 Namely, the requirements of proof that an act or omission discriminates in
8 fact and proof that the act or omission was committed with specific intent
9 to discriminate. Torture by contrast requires proof that the accused
10 caused the severe pain or suffering of an individual regardless of whether
11 the act or omission causing the harm discriminates in fact or was
12 specifically intended as discriminatory. Thus, cumulative convictions on
13 the basis of the same acts are permissible in relation to these crimes
14 under Article 5 of the Statute. The Appeals Chamber finds that the Trial
15 Chamber's conclusion was erroneous in disallowing the conviction against
16 Mr. Naletilic for torture as a crime against humanity pursuant to Article
17 5(F) of the Statute in relation to the mistreatment of Witnesses FF and Z,
18 and allows the Prosecution's 4th ground of appeal.
19 Let me now come to sentencing. With regard to sentencing,
20 Mr. Martinovic has appealed the determination the Trial Chamber under his
21 3rd ground of appeal. Mr. Naletilic challenges his sentence under his
22 25th and 40th ground of appeal. A number of their submissions have been
23 considered by the Appeals Chamber and dismissed for lack of merit.
24 However, the Appeals Chamber has found that the Trial Chamber erred in
25 three respects which I will summarise in turn.
1 In the first place, Mr. Martinovic submits that the Trial Chamber
2 erred in failing to consider mitigation of sentence that he facilitated
3 his transfer to the International Tribunal through the following steps.
4 First, upon learning of the indictment against him, he personally
5 requested his own extradition to The Hague. Second, after the decision by
6 the Zagreb county court on his transfer was rendered, he filed a
7 submission expressly waiving his right to appeal that decision requesting
8 his prompt extradition.
9 The Appeals Chamber observes that on the balance of probabilities,
10 it has been proven that Mr. Martinovic waived his right to appeal the
11 decision of the Zagreb county court. It has not however been shown on the
12 balance of probabilities that Mr. Martinovic personally requested his own
13 extradition. The Appeals Chamber considers that mere facilitation of the
14 transfer process cannot be considered voluntary surrender but that such
15 facilitation may itself be considered as a mitigating fact. In light of
16 the specific circumstances of this case, the Appeals Chamber considered
17 Mr. Martinovic to have facilitated his transfer to the International
18 Tribunal. The Trial Chamber therefore erred in stating that the
19 circumstances of transfer to the Tribunal cannot be considered in
20 mitigation of sentence. However, given that Mr. Martinovic was involved
21 in criminal proceedings at the time of his transfer, and that there is
22 some indication that the time saved by facilitating transfer would have
23 been approximately one month, the Appeals Chamber does not consider that
24 this mitigating circumstance would have been given significant weight at
25 sentencing. The Trial Chamber thus did not commit an error affecting the
2 Secondly, Mr. Martinovic submits that despite noting his claims
3 that he helped his BH Muslim neighbours, that his general attitude is the
4 same towards BH Muslims and BH Croats, and that BH Muslim detainees were
5 helped by him and wanted to stay with him rather than in other units, the
6 Trial Chamber failed to address them in mitigation when determines his
7 sentence. The Appeals Chamber finds that the Trial Chamber's failure to
8 address these claims of assistance to BH Muslims in the sentencing part of
9 its judgement was in error under the reasoned opinion requirement.
10 However, whether or not Mr. Martinovic's assistance was actually taken
11 into account by the Trial Chamber at sentencing as a mitigating factor it
12 is entitled to little weight and would have no impact on Martinovic's
13 resulting sentence.
14 In the third place, both Mr. Martinovic and Mr. Naletilic submit
15 that the Trial Chamber erred in holding that their command roles amounted
16 to an aggravating factor in sentencing.
17 The Appeals Chamber has on several occasions confirmed that a
18 Trial Chamber has the discretion to find that direct responsibility under
19 Article 7(1) of the Statute is aggravated by a perpetrators's position of
20 authority. The wording of the sentencing section of the trial judgement
21 suggests that the Trial Chamber's consideration of Mr. Martinovic's and
22 Mr. Naletilic's command roles did not only pertain to its evaluation of
23 the form and degree of their participation in the crimes but went
24 further. The Trial Chamber found that Mr. Naletilic and Mr. Martinovic's
25 positions as commanders rendered their roles more serious. In so far as
1 this relates to their conviction under Article 7(1) of the Statute the
2 Appeals Chamber finds no error. However, in as much as this relates to
3 their convictions under Article 7(3) of the Statute, the Appeals Chamber
4 considers there to be an error. Given that the Trial Chamber is unclear
5 as to exactly which counts this factor was considered to aggravate, the
6 Appeals Chamber finds in Mr. Naletilic's and Mr. Martinovic's favour that
7 the Trial Chamber erred. However, the Appeals Chamber considered that in
8 light of the gravity of the crimes for which Mr. Naletilic and
9 Mr. Martinovic were convicted, and the circumstances of the case, this
10 error has no impact on the sentence.
11 In conclusion, the Appeals Chamber notes that it has set aside, in
12 part, a few of the convictions entered by the Trial Chamber against
13 Mr. Naletilic and Mr. Martinovic. However, taking into account the
14 particular circumstances of this case, as well as the form and degree of
15 the participation of Mr. Naletilic and Mr. Martinovic in the crimes
16 affirmed on appeal, as well as the seriousness of those crimes, the
17 Appeals Chamber finds that the sentences imposed by the Trial Chamber
18 against them are within the range that a reasonable Trial Chamber could
19 have ordered.
20 I will now read out in full the operative paragraph of the Appeals
21 Chamber judgement. That is the disposition.
22 Mr. Naletilic and Mr. Martinovic, will you please stand?
23 This is the disposition.
24 For the foregoing reasons, the Appeals Chamber, pursuant to
25 Article 25 of the Statute, and Rules 117 and 118, noting the respective
1 written submissions of the parties and the arguments they presented at the
2 hearings on 17 and 18 October 2005, sitting in open session, with respect
3 to the Prosecution's grounds of appeal, notes that the Prosecution's 2nd
4 ground of appeal has been withdrawn, allows Judge Guney and Judge
5 Schomburg dissenting the Prosecution's 4th ground of appeal, affirms
6 Naletilic's conviction for torture as a crime against humanity under count
7 9 of the indictment, and holds that the conduct underlying this conviction
8 encompasses inter alia the mistreatment of Witnesses FF and Z, dismisses
9 Judge Schomburg dissenting in part, the Prosecution's remaining grounds of
11 With respect to Naletilic's ground of appeal, allows in part
12 Naletilic's 1st and 3rd ground of appeal in so far as they relate to
13 Naletilic's superior responsibility for the beatings administered by Miro
14 Marjanovic to prisoners at the Heliodrom. Allows in part Naletilic's 21st
15 grounds of appeal in so far as it relates to Naletilic's superior
16 responsibility for the mistreatment of prisoners in Ljubuski prison. Sets
17 aside his conviction for wilfully causing great suffering or serious
18 injury to body or health as a grave breach of the Geneva Conventions of
19 1949 under count 12 of the indictment in so far as the conduct underlying
20 this conviction encompasses the beating of prisoners at the Heliodrom
21 administered by Miro Marjanovic. Sets aside his conviction for
22 persecutions on political, racial and religious grounds as a crime against
23 humanity under count 1 of the indictment and for wilfully causing great
24 suffering or serious injury to body or health as a grave breach of the
25 Geneva Conventions of 1949 under count 12 on the indictment, in so far as
1 the conduct underlying these convictions encompasses the incidents of
2 mistreatment of prisoners in Ljubuski prison. Dismisses Naletilic's
3 remaining grounds of appeal against conviction and sentence in all other
4 respects, and affirms Naletilic's sentence of 20 years imprisonment
5 subject to credit being given under Rule 101(C) for the period already
6 spent in detention.
7 With respect to Martinovic's ground of appeal, allows in part
8 Martinovic's 2nd ground of appeal in so far as it relates to the facts in
9 the indictment regarding the pleading of turning a private property into
10 the headquarters of the Vinko Skrobo ATG, the incident of beating in July
11 or August 1993 involving several prisoners, and the incident of beating
12 involving a prisoner called Tsotsa, and sets aside his conviction for
13 unlawful labour as a violation of the laws or customs of war under count 5
14 of the indictment in so far as the conduct underlying this conviction
15 encompasses the incident of turning a private property into the
16 headquarters of the Vinko Skrobo ATG, and his conviction for wilfully
17 causing great suffering or serious injury to body or health as a grave
18 breach of the Geneva Conventions of 1949 under count 12, in so far as the
19 conduct underlying this conviction encompasses the incidents of beating of
20 detainees in July or August 1993 and of the detainee called Tsotsa.
21 Dismisses Martinovic's remaining grounds of appeal against conviction and
22 sentence in all other respects and affirms Martinovic's sentence of 18
23 years' imprisonment subject to credit being given under Rule 101(C) for
24 the period already spent in detention, and finally rules that this
25 judgement shall be enforced immediately, pursuant to Rule 118 of the
1 rules, and orders in accordance with Rule 103(C) and Rule 107 that
2 Naletilic and Martinovic are to remain in the custody of the International
3 Tribunal pending the finalisation of arrangements for their transfer to
4 the state where their sentence will be served. Mr. Naletilic and
5 Mr. Martinovic, you may be seated.
6 I now request the Registrar to please deliver copies of the
7 judgement to the parties in this case. Please, Madam Registrar.
8 Thank you, Madam Registrar.
9 This hearing of the Appeals Chamber of the International Criminal
10 Tribunal for the Former Yugoslavia stands adjourned.
11 --- Whereupon the hearing adjourned at 3.10 p.m.