1 Wednesday, 2nd July 1997
2 (2.30 pm)
3 (In open session)
4 JUDGE McDONALD: Mr. Vujin, would you call your next
5 witness, please?
6 MR. VUJIN: Yes, your Honour.
7 JUDGE McDONALD: One matter regarding the report of
8 Dr. Nedopil. Have you had an opportunity to review the
9 English translation of that?
10 MR. VUJIN: Yes, your Honour, I have reviewed and compared
11 the translation, the English translation with the
12 German, and I found the text to be identical, and
13 therefore we accept that it be tendered as evidence and
15 JUDGE McDONALD: If you will mark that as the next
16 exhibit. Do you have an extra copy for the Judges?
17 JUDGE McDONALD: No.
18 MR. KEEGAN: We will provide copies to the court before the
19 close of today, your Honour.
20 JUDGE McDONALD: You may retain your copy. Mr. Keegan, if
21 you would provide four copies, one for the record and
22 one for each of the Judges, fine. You may bring in your
23 next witness.
24 MR. VUJIN: Your Honour, I apologise. Before starting with
25 the questioning of the expert witness, we would like to
1 tender to the court another written document which has
2 to do to the current regulations of Republika Srpska,
3 dealing with amnesty in accordance with the law on
4 amnesty, which can show how these problems were dealt
5 with in the territory that now belongs to the Republika
6 Srkpsa according to the Dayton Accords.
7 JUDGE McDONALD: Does that law relate to war crimes or does
8 it just relate to what would be considered ordinary
10 MR. VUJIN: Yes, it does apply to war crimes as well and
12 THE REGISTRAR: This will be marked at D120 and the report
14 JUDGE McDONALD: Is there any objection, Mr. Niemann, to 119
15 and 120?
16 MR. NIEMANN: There is no objection to the document at all.
17 I am not sure we necessarily agree with the
18 characterisation of the defence.
19 JUDGE McDONALD: 120.
20 MR. NIEMANN: Yes.
21 JUDGE McDONALD: Very good. They will be admitted. Are we
22 ready now for Professor Aleksic? Very good. You may
23 bring in Professor Aleksic.
24 (Witness enters court)
25 JUDGE McDONALD: Would you please take the oath?
1 A. (in interpretation): I did not understand.
2 JUDGE McDONALD: Would you please take the oath, the solemn
3 declaration that has been handed to you?
4 Professor Aleksic (sworn)
5 Examined by Mr. Vujin
6 JUDGE McDONALD: Thank you. You may be seated. Mr. Vujin,
7 you may proceed.
8 MR. VUJIN: Thank you, your Honour. Professor Aleksic, good
10 A. Good afternoon.
11 Q. Is your name Dr. Zivojin Aleksic?
12 A. Do I have to rise? Yes, my name is Zivojin Aleksic.
13 I am a Professor and I acquired the doctorate later.
14 Q. Professor, you teach at the Belgrade Law School of
15 Belgrade University?
16 A. Yes, for 40 years.
17 Q. To introduce you to the court, will you please tell me
18 how many books and text books you have written and
20 A. Quite a number. I published 26 books. Quite a number
21 of them have been translated into German, English,
22 Russian, French.
23 Q. Thank you. Will you tell me of which institutions you
24 were a member, where you worked, but very briefly?
25 A. I took a master's degree in Lausanne, my doctorate in
1 Belgrade. I completed three levels of the faculty of
2 comparative law, the Vrije Universiteit in Amsterdam, in
3 Luxembourg. I worked in the United Nations in the area
4 of technical assistance. I trained people. I was a
5 member of the World Peace Through Law Movement and I was
6 co-chairman of the World Association of Law Professors,
7 together with Professor Joe Hazzard, that I'm sure the
8 Trial Chamber is familiar with, from Colombia
9 University. We were co-chairmen, the two of us.
10 I don't think there's any need to go into details. In
11 the country I was President of a large number of
12 associations. You see, I'm well advanced in age, so
13 that it's no wonder that I have such experience.
14 Q. I think that will be enough. Can you tell us whether
15 you were engaged in certain specific criminal cases and
16 what is your speciality?
17 A. My speciality is judicial proof.
18 Q. Were you engaged in that area to deal with certain world
19 renowned cases?
20 A. Yes. Whenever our State was implicated, I participated
21 in trials of the aggressors on the mission in Bonn,
22 those who attacked the military mission in Berlin, the
23 assassins of our ambassador in Stockholm. I trained
24 many experts in Africa.
25 Q. Thank you.
1 A. And there are many other things.
2 Q. Thank you. I think that will be enough for the Trial
3 Chamber to get an idea about you as an expert.
4 Could you please say something about the position
5 of criminal law of Yugoslavia, its roots, its level of
6 development and also a few words about the system of
7 criminal sanctions?
8 A. Criminal law follows life, and if we look back into
9 history, distant history, I think it is better for me to
10 speak slowly, because of the interpretation -- in
11 distant history, in the 14th century already we had an
12 extraordinary criminal code, the Dusan Code. Then
13 things changed when in 1918 the kingdom of Serbs, Croats
14 and Slovenes was formed, each of those nations passed
15 its own laws. Later this was shaped into the Criminal
16 Code of Yugoslavia, and I must say that we made a
17 compilation of the Austrian law, the German law and
18 partially the French law, so that the provisions are in
19 accordance with European continental law, but we had an
20 ugly period after the end of the Second World War, from
21 1945 until 1950, when we were under the influence of the
22 Soviet Union in those days, and we then adopted certain
23 rules in the Criminal Code and in the procedure.
24 Q. Which were far from anything we could take pride in, so
25 that they disappeared very soon, which means that we
1 departed from the countries of the Eastern bloc?
2 A. Yes, fortunately, as you know, Yugoslavia managed to
3 withdraw from that bloc and we developed a model of the
4 Criminal Code which was changed in time, but what was
5 specific was that each republic and province had its own
6 Criminal Code, and the procedure was common to them.
7 Unfortunately our Yugoslavia disintegrated and Serbia
8 and Montenegro amended those laws to a certain extent,
9 and our law will be further amended now in the aim to
10 develop a central law and code and procedure for the
11 whole of Yugoslavia. At the moment we have a Serbian
12 and a Montenegran law, but there is not much difference
13 between them, and there is also a Criminal Code of
14 Yugoslavia as the more general, and these two as the
15 specific which eliminate the criminal offences which are
16 covered by the former. At least we expect this to
17 become a unified criminal code.
18 Q. Can you tell us something about the system of criminal
19 sanctions? What is the maximum penalty?
20 A. As the first penalty we have caution, then fines and
21 then imprisonment. Imprisonment goes up to fifteen
22 years. That is the limit. However, because until
23 recently we had the death penalty in Yugoslavia, we have
24 given the possibility to the court in certain individual
25 cases to decide to substitute the death sentence with 20
1 years imprisonment. So if I tell your Honours that we
2 have 15 years as a limit and 20 years, I must tell you
3 that 20 years is very exceptional, because it shows that
4 between 15 and 20 there are no intermediate penalties.
5 There is no penalty of 16 or 17 years. There's 15 as a
6 limit and 20 only as a substitute for the death
7 penalty. By constitution the death penalty has been
8 abolished, and we are still discussing the substitute,
9 but 20 years does exist.
10 Q. Therefore, according to the Federal Criminal Code, there
11 is no death penalty, but a penalty of 20 years is
12 envisaged, which may exceptionally be prescribed from
13 the worst criminal offences -- for the worst forms of
14 the worst criminal offences it is envisaged?
15 A. That is correct, but the fact that the court, if I may
16 use the term, in normal proceedings that the court will
17 normally pass a sentence up to 15 years.
18 Q. Thank you. Which are the circumstances envisaged by the
19 law and which the court takes into consideration when
20 deciding which criminal sanction it will pronounce?
21 A. We have an institution called "social danger" and every
22 court -- I don't think that is any novelty -- on the
23 basis of premeditation and criminal intent, but what
24 I would like to tell the Trial Chamber, we do not have
25 premeditation in our criminal code. We have intent and
1 negligence. Intent, we make a distinction between
2 direct criminal intent and possible criminal intent,
3 which is reached when the negligence is so gross that it
4 develops into intent.
5 For instance, you are driving a car with bad
6 brakes believing that nothing will happen. That is
7 possible intent. In negligence we have violent
8 negligence, conscious and unconscious, unconscious
9 negligence being the mildest form.
10 Q. Which are the objectives of criminal sanctions according
11 to our law?
12 A. In Article 1, as in all other laws, it says that the
13 purpose is to prevent the accused from committing
14 further criminal offences. That is number 1. The
15 second is the humane intention, that the person who is
16 prevented from further criminal offences is sought to be
17 reintegrated -- rehabilitated. Then the second part of
18 Article 1 deals with general potential, prevention in
19 the sense of strengthening morality and preventing
20 impermissible actions, and also certain kinds of
21 threats. It is a kind of caution to all others who
22 might consider committing a criminal offence.
23 Q. Thank you. Could you tell us a little more about the
24 individualisation of penalties? To what extent does the
25 court have the possibility to bear in mind all the
1 circumstances of the event and the character of the
2 accused in order to weigh out the sentence?
3 A. The individualisation of sanctions -- I'm already an
4 elderly professor, so I look back into history -- is the
5 central effort of every court. I'm sure the court is
6 well aware of this. The greatest problem is the problem
7 of measure, of degree, as anything else in life, how to
8 find the proper measure for a particular person. Our
9 law has given a list of obligatory things that the court
10 must bear in mind, but it is left to the court to assess
11 other circumstances as well that may arise.
12 Q. Could you elaborate on that?
13 A. You see, there is the life before, whether he has a
14 criminal record, how he lived, then motive, then
15 circumstances, then rage and so on, and then in the end
16 there is something that is important, and that is the
17 behaviour of the perpetrator after the commission of the
18 offence. This is something that carries a lot of weight
19 in Yugoslavia, because this behaviour after the offence
20 is indicative of a kind of rehabilitation of the
21 individual and his becoming a useful member of the
23 Q. To come back to the first element that you mentioned,
24 prior life, as our law puts it, is family life assessed,
25 the character of the accused, the circumstances under
1 which he was brought up, the circumstances in which he
2 was living?
3 A. All these things are assessed, as well as his material
4 position, simply how he stands, what the conditions of
5 life were in which he was brought up. For that purpose
6 one usually calls up the immediate family and relatives,
7 how he behaved at school, in the army and in any other
8 collective environment, in a community, and then we add
9 what I said just now, his behaviour following the
10 commission of the offence.
11 Q. What I would be further interested in is the sentencing
12 and the sanctioning of accomplices?
13 A. Mr. Vujin, you are really rejuvenating me, because I have
14 mostly been in the role of me putting the questions, but
15 now it is my former student who is asking me questions,
16 and this is a great pleasure for me. You see, there is
17 a basic rule and that is that each individual is
18 responsible within the framework of his intent. This is
19 something that we took over from the German and Austrian
20 law. The "Code Penale" is not so definite in that
21 respect. Of course, any deviation from within those
22 boundaries it is up to the court to assess, so if we
23 have accomplices, each one of them is responsible within
24 the limits of his intent.
25 Q. Could you illustrate this, please?
1 A. Yes, of course. If somebody agrees with somebody else
2 to break into a shop and to rob it, then three of them
3 do this, their intent was to enter and to appropriate
4 money or goods, but one of them comes across the guard
5 and kills him, so that he would discover them. Then he
6 is responsible for his intent and these other two cannot
7 be responsible for the same.
8 Q. In that case these other two would not be responsible
9 for murder?
10 A. No. That is the case in our law.
11 Q. Thank you. We have this institute of a criminal
12 offence, an on-going criminal offence. Can you explain
14 A. Life shows that people who engage in crime do not
15 usually limit themselves to one offence, but sometimes
16 do a series of such offences or simultaneously commit
17 several offences, and in the case of the accomplice --
18 is that what you were asking me -- again you go within
19 the boundaries of the intent, but the sanctioning, the
20 method we applied was aspiration, no cumulation,
21 aspiration. Aspiration means that the court rules as
22 follows. For each offence committed, he is -- a
23 sentence is pronounced, but the court must bear in mind,
24 and there are six offences three years each, then the
25 sum -- it may not be a sum -- the final sentence may not
1 be the sum, because that would be cumulation, and there
2 is another rule, that it cannot exceed the envisaged
3 maximum. It cannot be more than 15 years. In this
4 case, if you have six criminal offences three years
5 each, that would be 18. It couldn't exceed 15, because
6 15 is the limit. Secondly, it cannot be a simple sum,
7 because that would be the method of cumulation. I'm
8 sorry if I have to say this, but I'm sure our
9 distinguished court knows this. This method of
10 cumulation has been abandoned in theory.
11 JUDGE STEPHEN: Could I ask one question on what I think is
12 a matter of interpretation? I think the witness spoke
13 about aspiration as being something distinct from
14 cumulation. "Aspiration" in English doesn't mean that
15 at all. Could you perhaps ask the witness what he has
16 in mind by "aspiration", what was translated as
18 A. Yes. In Latin -- "aspiration" is from Latin. There are
19 six times three years, for instance, for criminal
20 offences. Cumulation would mean 18 years. Aspiration
21 means taking away a little bit of each and not making a
22 simple sum of those penalties. I don't know if I have
23 explained myself. I hope we understand one another.
24 Yes, in English it doesn't mean anything, but we have
25 taken it over from Latin, and I studied Latin a long
1 time ago.
2 JUDGE STEPHEN: In English it means "hoping".
3 A. Yes, yes, that is aspiration, but the aspiration,
4 "asperatio". Sorry for me -- I am professor. It is
5 usual I give lectures but you are absolutely right. Not
7 JUDGE STEPHEN: Aspe ...?
8 A. Only aspiration.
9 JUDGE STEPHEN: It is similar to sentences being not
10 cumulative but concurrent, concurrent, running with?
11 A. Yes, you are quite right. Cumulation would in this case
12 be 18 years, but it violates two principles of the
13 aspiration, and that is it cannot exceed the maximum
14 limit envisaged by the law, which is 15 years, and
15 secondly, which is even more important, it cannot be a
16 simple sum of all the penalties, because then it is
18 JUDGE McDONALD: Why is that so? Why can it not be -- some
19 systems do have both concurrent and cumulative available
20 to the sentencing Judge so that, for example, if an
21 individual commits two distinct offences, you look at
22 each offence, you determine what is the appropriate
23 sentence, and assuming that the offences are distinct
24 and separate, some systems do allow them to be served
25 cumulatively, meaning you would sentence for offence A,
1 recognising that it had been done, and you would
2 sentence for offence B, recognising that it had been
3 done, and in order to give effect to that, you would
4 then have to combine those two. Why is that not so in
5 your system?
6 A. Your Honour, thank you for the attention you are showing
7 for what I am saying. I thank the whole Trial Chamber,
8 of course. But this aspiration or concurrence occurs
9 when the offences were committed without a wide time
10 limit in between, for instance in a single day, not at
11 various periods of time. If they occur at various
12 times, then it is possible, but, secondly, in Europe,
13 since the French Revolution certain ideas came to the
14 fore speaking about certain -- giving certain
15 alleviation to or the beneficial treatment of the
16 accused, and this is one of the things whereby the
17 position of the accused is sought to be alleviated,
18 confronted with the machinery of justice: nebis in idem
19 re sum dicta (sic). Various facilities for the accused,
20 which at first glance may not be logical but have a
21 certain indication of our belief in man, in his ability
22 to correct his behaviour and become a useful member of
23 society. It is terrible when justice squeezes out the
24 man. Such a man can never be rehabilitated.
25 MR. VUJIN: If I may be allowed, your Honours --
1 JUDGE McDONALD: There are different theories, are there
2 not, in terms of sentencing? Some people believe there
3 is a role for rehabilitation, other people for
4 punishment, other people for deterrence. There are a
5 number of factors that play into this picture, of
6 course, and I think you spoke of deterrence. You didn't
7 use the word, but I understand what you meant. I guess
8 it would depend on which you considered to be the most
9 important of these various factors or motives or reasons
10 for sentencing, but after the French Revolution you are
11 saying that what became in vogue was rehabilitation?
12 A. I think we can agree on that. Absolutely. Your Honour,
13 I fully agree. Rehabilitation is something that all
14 modern courts of law aspire for. However, it was
15 difficult for this idea to struggle in through history,
16 because an eye for eye and tooth for tooth is still
17 present in the way of thinking of the man in the street
18 in my country, for example, and you know best as a judge
19 how many times you have heard or still hear objections
20 to your concept of justice and imposing sentences.
21 Deterrence is certainly one thing, but I just thought of
22 examples from Medieval times when, for example, people
23 would steal during a public hanging, because people
24 would be watching the hanging transfixed and they
25 wouldn't pay attention to somebody pilfering their
1 wallets. So we have to believe in something. In
2 Yugoslavia I always tell my students that each verdict
3 affects at least seven people, and it can change a
4 person's life definitely, but let us see to what extent,
5 but frankly speaking, sometimes a sentence can destroy a
6 person and his family. I believe that the esteemed
7 chamber shared this opinion and I apologise for saying
8 things that are certainly your views too; no?
9 JUDGE McDONALD: I, for one, would want to know the seven
10 people who the sentence affects or are we getting too
11 far ....
12 A. What seven? First of all, the family, that is to say
13 the spouse, the wife or two or three children, or one
14 child -- I don't know. Then his parents, you know.
15 Then the wife and her parents and that's about seven,
16 and then if there are any siblings, a brother, a sister,
17 etc. I'm sure that you accept that. A person who was
18 sentenced once has a very tough time afterwards trying
19 to find his place under the sun. Thank you.
20 JUDGE STEPHEN: I have one last question I think on
21 aspiration. It sounds to me as if it is different from
22 the notion of concurrent sentences. Let us take an
23 example of two offences, each being punished with three
24 year's imprisonment. If they were concurrent, the
25 accused would serve only three years. With aspiration,
1 you might add -- you might add pieces of each of them
2 and it might be a total of, say, four years. Is that
3 the way in which your system works?
4 A. You are putting a question to me as if you were a
5 colleague of my judge colleagues in Yugoslavia. That is
6 what they usually ask and that is how they usually
7 work. However, concurrence does not have to mean the
8 same day. You have pickpockets, for example, who do
9 that as a regular thing. Then the social danger is
10 great because he shows his intent every day and then
11 again they cannot go beyond these two things, the
12 maximum envisaged for that kind of crime and
13 mathematical summing up.
14 MR. VUJIN: But with your permission, your Honour,
15 I understood Judge Stephen's question but I don't know
16 how come we have three years. If we have two sentences
17 of three years each concurrently for two crimes, are
18 there systems in which the accused will spend only three
19 years in prison?
20 JUDGE STEPHEN: Yes.
21 MR. VUJIN: Then our system is truly different. As the
22 Professor said, he will not be prison for three years
23 but four or more?
24 A. He have would have to get a larger sentence because
25 otherwise he would be privileged, but not six years, no.
1 JUDGE STEPHEN: That explains it precisely. Thank you.
2 MR. VUJIN: Professor, the institute of mitigating the
3 sentence has been prescribed by our law. Can you tell
4 me something about that institute?
5 A. That institute is quite clear, at least in my opinion.
6 We have the offender. We have the punishment envisaged
7 for that crime. There is always a range involved from
8 one to five years.
9 Q. A minimum and a maximum prescribed by law?
10 A. Yes. I must tell the Chamber, with their permission,
11 that unfortunately most of our analyses -- it is not
12 always a good thing -- show that most of our punishment
13 sentences in Yugoslavia are near the minimum. This may
14 be a surprise, but usually it's the minimum. If it's
15 from 3-7 years, then it's usually 3-4 years that is
16 served. However, mitigation of the sentence. We have
17 the person involved. We have his crime and we have the
18 punishment that is envisaged. His previous life,
19 subjective and objective circumstances, are quite
20 telling, and this can lead to a milder, less strict
21 sentence, but it can also to a more strict sentence.
22 For example, if he abuses a person who he is supposed to
23 take care of, for example if he is a teacher or if he is
24 a guardian and if he is in charge of a certain person,
25 and if he abuses that, that is an aggravating
1 circumstance, or, for example, when we had an epidemic
2 of Smallpox in Belgrade, then very strict sentences were
3 imposed on people who smuggled medicine related to that
4 disease. That is an aggravating circumstance. A
5 mitigating circumstance is, for example, if somebody
6 hits a person with his car but he puts that person in
7 the same car immediately, takes him to the hospital,
8 donates blood for this person, etc., or the previous
9 forms that were filled out in our country also included
10 questions asking whether this person had been decorated
11 or received certain awards, etc., so this was taken into
13 If I'm not mistaken, you are looking at the papers
14 that were submitted to the Prosecutor made by Dr.
15 Vasiljavic and Dr. Jankovic. First of all, I must say
16 I am very sorry that Dr. Vasiljavic died but the paper
17 you have is dated, I'm afraid, Mr. Prosecutor, because
18 the data contained there refer to 1982-1988. So they
19 are ten years old. Secondly, that was the period of the
20 SFRY, the Socialist Federal Republic of Yugoslavia, when
21 there were five different laws, and a classical, so to
22 speak, situation, of crime, when crimes such as
23 genocide, etc., practically didn't even exist, crimes
24 against humanity.
25 In 1991, when Yugoslavia started falling apart the
1 situation changed. For example, in Belgrade we have a
2 lot of murders. During one year, if you take into
3 account the number of criminal murders, it exceeds that
4 which was relevant for four year periods before that.
5 So my colleagues whom I know and respect made this paper
6 and I wish to draw nevertheless the attention of this
7 court to the fact that the paper is dated. If
8 necessary, I can submit to you a written document on the
9 current situation in criminal law and the criminal
10 judiciary in Montenegro and Serbia now. The closeness
11 of the war brought forth what is called "the Vietnam
12 syndrome" and I believe that a great effort will have to
13 be made both by Yugoslavia and the international
14 community for Yugoslavia to become once again what it
15 was before, a tourist country.
16 Q. Is that one of the reasons why our courts now impose
17 sentences which are close to the legal minimum, so if
18 the range envisaged is 5-20 years, if all circumstances
19 are taken into account, nevertheless the sentence is
20 usually 5 years or something similar to that?
21 A. There are different theories on that is correct which is
22 absolutely correct. It is always the lower minimum in
23 Yugoslavia that is applied in the case of these
24 sentences. When I talk to our judges they usually find
25 various mitigating circumstances which say that this
1 person is not incorrigible, that he is not ruthless, but
2 I cannot say what the exact reason is. After all,
3 that's the job of the court. Therefore certain things
4 in life that we simply don't know about. For example,
5 there is a standard rule in all countries that out of
6 the total number of children born in any country 100 men
7 are born and 100 women, but then sometimes the advantage
8 of males and females is reversed, but at birth it is
9 105: 100.
10 Q. Thank you, Professor. With the permission of the Trial
11 Chamber, I wish to ask you something which may only seem
12 outside of your domain, but it is relevant to all of us
13 here, I think. As your job did you study local
14 self-government in our country perhaps?
15 A. As I worked on programmes of study against crime, either
16 general or particular ones, we devoted a great deal of
17 attention to the family as the nuclear cell and all
18 these smaller organisations too. Unfortunately the
19 struggle against crime requires a lot of money, and
20 that's a basic problem in Yugoslavia. I don't know how
21 we're going to deal with that.
22 Q. When you speak of these smaller communities, are you
23 referring to municipalities?
24 A. Certainly. The municipality is the closest to the
25 family. It takes care of the school, of the Red Cross.
1 It solves housing problems, public utilities. It is
2 practically the heartbeat of a nation.
3 Q. Is there an authority which is not entitled to pass
4 decisions but which does exist from an organisational
5 point of view?
6 A. According to the constitution the municipality is the
7 lowest organ. However, because of the fact that our
8 country is so widespread, these municipalities cannot
9 always take care of their entire territory. So, for
10 example, a health centre, municipal health centre can
11 work in different places in different ways in order to
12 help the entire population. So you have these local
13 conferences, etc., etc., but the statute of the
14 municipality has to say where there is going to be a
15 local community, and since this local community is not a
16 constitutional category, it does not have any major
17 functions. This is just a centre that handles matters
18 related to schools, etc. If I remember correctly, they
19 have an assembly of the community, a council of the
20 community and an interesting organ -- I don't know what
21 kinds of results it yields -- and that is the consumers'
22 council. So that is it more or less. Sometimes there
23 are certain ad hoc matters, protection from fires, for
24 instance, then; defence from hail and thunder, more or
25 less this is a centre which is in contact with the
1 municipality and does not pass decisions through its
3 Q. So it is through the decision of the municipality that
4 the local community is formed?
5 A. Yes.
6 Q. And you said there is a council as an executive organ
7 and this consumers' council that takes care of supply,
8 markets, etc.?
9 A. I must say that it functions rather poorly.
10 Q. I'm interested in this relationship between the assembly
11 and this executive organ of the local community?
12 A. As elsewhere, the assembly doesn't meet very frequently
13 and the council works all the time practically.
14 Q. But the council works according to the decision of the
16 A. Certainly.
17 Q. And the assembly is accountable to the municipality
18 whereas the council is accountable to the assembly?
19 A. There is one place within this local self-government.
20 Q. The secretary of the local community, is that an organ
21 or not?
22 A. I cannot tell you exactly, but I think this is a paid
23 official who is there to act according to the
24 instructions received from these other organs.
25 Q. Is this an administrative work? Is that what you can
2 A. Absolutely. It has no other authority of the even the
3 council of the local community. The question is whether
4 they have any special authority or is this authority
5 delegated by the assembly. To take an insignificant
6 matter, enrolling into school, then the council informed
7 the assembly how many children of school age there are
8 now on the territory of the local community, and then
9 the municipality decides whether it is sufficient to
10 have, say, one teacher, or whether they need another
12 Q. So the local community cannot decide that?
13 A. No, it is the municipality. The municipality's extended
14 arm, if I may say so.
15 Q. To whom is the secretary of the local community
17 A. To the President of the council and the President of the
18 council is responsible to the assembly and the President
19 of the assembly of the local community responsible to
20 the municipality.
21 Q. And the municipality is the only one that is in charge
22 of reaching these decisions?
23 A. Of course. Otherwise there would be utter confusion.
24 Q. Thank you, Professor. I have completed my examination.
25 Thank you.
1 JUDGE McDONALD: Thank you, Mr. Vujin. Cross-examination,
2 Mr. Niemann?
3 Cross-examination by Mr. Niemann
4 MR. NIEMANN: Professor Aleksic, when was the death penalty
5 abolished, what year?
6 A. The death penalty was abolished when the new
7 constitution of Yugoslavia was adopted of the present
8 day Federal Republic of Yugoslavia. This was about two
9 years ago, approximately two years ago, I think, and now
10 we have a strange paradox in our criminal law, and you
11 being an excellent lawyer will fully appreciate that.
12 We have a constitution which abolished the death penalty
13 and then there is Serbia that has the death penalty and
14 Montenegro that does not have the death penalty. At any
15 rate I can tell you what the epilogue is. There are no
16 death penalties. There are some that have been
17 pronounced and these poor people are awaiting
18 execution. However, I firmly believe that this will not
19 take place because, after all, the supreme act is the
20 constitution and all these other laws are below that,
21 and I believe that this new criminal law that is being
22 prepared now will resolve the issue and this is
23 paradoxical and you have observed that quite correctly.
24 Q. Prior to the abolition by the new constitution and going
25 back to, say, 1992, in what of the republics of the then
1 breaking-up Yugoslavia, if I might call it that, had the
2 death penalty?
3 A. Practically in all republics before 1992 while the
4 Socialist Federal Republic of Yugoslavia existed -- that
5 is the paper you have from my colleagues Vasiljavic and
6 Jankovic -- it is said in all these five or eight laws
7 that existed, the death penalty was instituted in all of
8 them. I must tell you that Slovenia held the record in
9 all of that, in some 30 or 40 years not a single penalty
10 had been imposed. When they had a mass killer who had
11 murdered seven or eight women they were fortunate enough
12 that he was considered to be mentally incompetent. So
13 that is why he was not executed either. That was the
14 pre-war situation. In Serbia and Montenegro today you
15 have the situation I already referred to. At present we
16 have four or five death sentences that were imposed and
17 these poor people are waiting to see what will happen,
18 but they hope the constitution will prevail.
19 I personally think, as a law, and I believe that all
20 present here share that view, that there is nothing more
21 terrible than awaiting the execution of a death sentence
22 and unfortunately in all countries this is a penalty
23 that is awaited for years. It's the worst penalty of
25 Q. Yes. I'm just mainly interested in the history of the
1 death penalty. Now, as I understand it, and correct me
2 if I'm wrong, the maximum penalty would be 15 years,
3 because that was a period of time that was considered
4 best to facilitate rehabilitation; is that right?
5 A. I must say that 15 years is certainly one thing.
6 However, all criminological and penological research has
7 shown that any term of imprisonment longer than ten
8 years impairs a person mentally and makes him
9 psychologically mentally handicapped in terms of his
10 further life, but 15 years was the maximum. I imagine
11 that you are aware of the fact that after having served
12 two-thirds of the term due to good behaviour there could
13 be probation or a pardon. So mostly up to 11 years for
14 the gravest delinquents. In practice, however,
15 according to the law, 15.
16 Q. I am not really asking you for your opinion on what you
17 consider to be the best period of time in order to
18 facilitate rehabilitation. I'm really asking you: was
19 the law designed this way because that was considered to
20 be the maximum time?
21 A. You know full well that life and law do not always go
22 hand in hand. According to the law it is 15 years, but
23 during these 40 years I have not encountered a single
24 person in Yugoslavia who served all those 15 years.
25 Usually a person would be released after these 11 years
1 or so. However, sometimes it would happen --
2 Q. Perhaps if I can just interrupt you, Professor. Perhaps
3 you don't know the answer, and if that's right, I will
4 move on?
5 A. In what sense?
6 Q. If I am asking you what is the law --
7 MR. VUJIN: Sorry, but I don't think that this kind of
8 reaction is proper. You have received an answer. The
9 Professor said five times now that 15 years is the
10 maximum sentence according to law?
11 A. I don't know what the problem is. I truly wish I could
12 help you rather than enter into a polemic with you.
13 JUDGE McDONALD: Let's see if we can help. There are three
14 people all at once. I guess the question is; was the
15 law designed to establish a maximum?
16 MR. NIEMANN: Was the law designed, when it enacted a 15
17 year maximum, to -- that period was selected because it
18 was considered to be the maximum period of imprisonment
19 that could be endured if rehabilitation was to be
21 JUDGE McDONALD: Okay.
22 A. First of all, the law says 15 years. That is what
23 I said at the very outset. Whether 15 years facilitates
24 rehabilitation, I'm sceptical. That's my personal
25 opinion, but 15 years is what the law says, but I did
1 not meet a single prisoner who spent 15 years in jail.
2 Then there is 20.
3 Q. I am not asking your opinion of what you consider being
4 the maximum period, Professor. You have come here as an
5 expert on the law and I am asking if you understand the
6 basis of the law on the selection of the period 15
7 years. Now Professor, and I am not in any way
8 attempting to be rude, but if you do not know that and
9 it is perfectly conceivable you don't, then I'll move
11 A. To tell you the truth towards the end of my legal career
12 it would be hard to say I couldn't understand such a
13 question. The law says 15 years. That's the fact of
14 the case. I thought it might be clear both to you and
15 to the Trial Chamber when I say what I say.
16 I understood my coming here not just to be an
17 interpreter of the law but to convey to you the spirit
18 of the law of my land. If you don't want that, then let
19 me say there is 15 years and there's 20 years as a
20 substitute for the death penalty. Now why 15 years was
21 chosen? Because of the gravity of the offence, but
22 the entire system of re-education and penology is
23 designed to encourage persons to improve. It would be a
24 terrible feeling if somebody goes to prison and is
25 discouraged from improving. His reward is the gradual
1 reduction of the sentence.
2 Q. I have not asked you that particular part, Professor.
3 JUDGE McDONALD: I just ask you one question. What is the
4 relationship, if you know, between the maximum of 15
5 years and the goal of rehabilitation? What is the
6 relationship, if there is any, between the establishment
7 of a 15 year maximum and the goal of rehabilitation?
8 There may not be a relationship. It may be this 15
9 years was established because that would be the time
10 thought that should be given for those offences that
11 were very grave but not so grave that they deserved the
12 death penalty, but if there is a relationship between
13 that maximum and the goal of rehabilitation, I think
14 that's what Mr. Niemann is asking you. Is that correct?
15 MR. NIEMANN: That's right, your Honour.
16 JUDGE McDONALD: Okay.
17 A. The degree of criminal responsibility and the
18 circumstances of the criminal offence enable the court
19 to pronounce the maximum sentence of 15 years. Whether
20 for that individual 15 years is a period during which he
21 can be re-educated I don't know, but I do know that it is
22 a penalty isolating that person because of the gravity
23 of his criminal offence. Somebody can be re-educated in
24 a year or two and can realise that he did something
25 wrong, and this can be just a nightmare from his past,
1 whereas someone else can never recover. They suffer
3 MR. NIEMANN: Thank you, Professor.
4 A. Thank you.
5 Q. Am I right when I say that somebody who would have
6 received the death penalty in Yugoslavia, let us say up
7 to the period of 1992, those persons would not have been
8 considered suitable for rehabilitation and the
9 seriousness of the crime would have been such that it
10 would have dictated that consequence; is that correct?
11 A. I see that you are not inclined to hear my opinions, but
12 I still have to say that I personally do not believe
13 that there is such a person that cannot be -- that
14 condition improve except for mentally retarded people.
15 As for the death penalty it is a very sad phenomenon and
16 the whole of society is against this.
17 Q. Professor, I'm not asking you that question. Do you
18 want me to repeat my question?
19 JUDGE McDONALD: Mr Vujin, I suppose the objection is that
20 the answer is not responsive to the question. Can you
21 answer the question or do you recall the question,
22 Professor? Do you know whether or not when the death
23 penalty was utilised, going back to the period 1992, was
24 it a determination made by the legislator or whatever
25 body passed the law, that that penalty was to be imposed
1 because it was the gravest of offences and it was
2 assumed that persons who commit those offences that are
3 so grave are not capable of being rehabilitated?
4 Rightly or wrongly, was that their feeling?
5 A. It is quite clear that the imposing of a death sentence
6 refers to a person that has to be isolated from society,
7 but not to enter into my opinion, as that doesn't
8 interest you, the death sentence is the total and
9 incorrigible exclusion of man from the society which he
10 is living in, but I have my opinion about that, which
11 I won't convey.
12 MR. VUJIN: I have an objection, your Honour. We are
13 continuing the discussion on the death penalty, and
14 I think that we shouldn't engage in polemics on the
15 death penalty. I do not see where this is leading us
16 to. We in Yugoslavia have been talking about the death
17 penalty for five years and eventually the Federal
18 constitution abolished the death penalty. I do not see
19 what the intention of the Prosecutor is to have this
20 debate on the death penalty, which is not even envisaged
21 by the rules of procedure of the Tribunal. I think it
22 out of place.
23 A. May I --
24 JUDGE McDONALD: Mr. Niemann?
25 MR. NIEMANN: Your Honour, the evidence so far from the
1 Professor has concentrated on the issue of
2 rehabilitation, and so far there has been very little
3 attention paid to any of the other objectives of the
4 sanction that is attached to a penalty. I'm
5 endeavouring to explore this. He himself has told us
6 that the death penalty operated up to 1992 and certainly
7 up until very recently in Serbia and the Federal
8 Republic of Yugoslavia. I'm merely trying to explore
9 the basis of the philosophy of the penalties and how
10 they operate in Yugoslavia. I think it's a perfectly
11 reasonable line of questioning, having regard to the
12 fact that the Defence has been left at liberty to fully
13 explore the issue of a penalty and the penalty most
14 appropriate for rehabilitation.
15 JUDGE McDONALD: I'll overrule your objection, Mr. Vujin.
16 Proceed along. Get us eventually to the point now that
17 the death penalty has been abolished. That's something
18 I am interested in.
19 MR. NIEMANN: I will endeavour to get there, your Honour.
20 So there was up until quite recently a measure of
21 penalty, i.e. the death penalty, that operated in cases
22 where rehabilitation was not considered to be
23 appropriate for the particular offender that was being
24 dealt with?
25 A. I said that, yes. That is common knowledge. But as an
1 opponent of the death penalty I cannot lay still when we
2 are talking about it.
3 Q. I'm sure, Professor, that you will have plenty of
4 opportunities to express your views on that in other
5 forums, but in this forum we are primarily interested in
6 the -- well, I am principally interested in --
7 A. For as long as I remain in good health.
8 Q. Professor, you then said that a 20 year maximum period
9 of imprisonment was introduced and that was for some
10 crimes, and that was in circumstances where the 15 year
11 maximum was not considered appropriate, and in
12 circumstances which followed the abolition of the death
13 penalty; is that right?
14 A. I shall avoid any personal opinions. The legislator
15 envisaged the death sentence, but he left it to the
16 judge to assess. In the event that the whole case
17 points to the adequacy of the death penalty, the
18 legislator has left it to the judge to turn this into a
19 prison sentence. So this is indicative of a change in
20 the orientation of society. The 20 year sentence is an
21 exceptional measure and a substitute for the death
22 penalty. In this way the legislator has shown his
23 attitude towards a measure that cannot be rescinded,
24 that is final.
25 Q. Now I think that you indicated -- well, the gist that
1 I got from your evidence was that the 20 year maximum
2 that has now been introduced was in a sense an interim
3 measure and the matter was still under discussion; is
4 that right?
5 A. No, it's not under discussion. On the contrary, it was
6 the harbinger of the future abolition of the death
7 sentence, because a death sentence cannot be pronounced
8 on a person under 21 years of age and as a substitute in
9 some cases there is the prison term of 20 years. So
10 this was a harbinger of the future abolition of the
11 death sentence.
12 Q. So under Yugoslav policy there is still provision for
13 the offenders to be dealt with where the sentencing
14 disposition of the court is that the punishment should
15 be the primary focus of the sentence rather than
16 rehabilitation; is that right?
17 A. When a death penalty is imposed according to Yugoslav
18 law, the court says: "I sentence you to death by firing
19 squad but because of such and such circumstances that
20 sentence is being amended to 20 years in prison".
21 Q. That wasn't quite a question, Professor. Would you like
22 me to repeat it again for you?
23 A. Yes, please. I find it very strange that we don't seem
24 to be able to understand one another very well today.
25 Q. I regret that, Professor.
1 A. Me, too. Me, too.
2 Q. My question was: the policy is so there is still
3 provision for offenders to be dealt with -- excuse me.
4 I'm trying to -- I will read back my question so I get
5 it precisely. I am not going to be permitted to do so,
6 so I will have to try to remember it. Professor, what
7 I'm saying is that so there's still provision in
8 Yugoslavia -- in the law of Federal Republic of
9 Yugoslavia at least where a court, when it's designing
10 the sentencing disposition for a particular offender
11 places a higher emphasis on the fact that the penalty
12 that should be meted out to a particular individual
13 transcends or is more important than the rehabilitation
14 issues that may otherwise be afforded a particular
16 A. May I answer?
17 Q. Yes.
18 A. In your question there is something that is not quite
19 clear. As the constitution prohibits the death penalty,
20 we have really a moratorium, because the death penalty
21 is an exceptional measure. It was envisaged early on by
22 law. Now it does not exist. It is not handed down.
23 The explanation given by the court, if you are
24 interested in that, I could study the verdicts of
25 courts, but the fact remains that between 15 and 20
1 years there are no penalties in between 15 and 20. 20
2 is only the substitute for the death penalty, and that
3 is what the law says. Now what the court has in mind,
4 what kind of a disposition it has, I can't say.
5 Probably they feel that the death penalty should be used
6 for persons who are harmful to society, but they are
7 substituting that with a 20 year sentence because, after
8 all, all the circumstances are not present for total
9 elimination of the offender.
10 MR. VUJIN: I must object again. I think there is a
11 misunderstanding, your Honour.
12 JUDGE McDONALD: I was waiting for the translation, because
13 the translator -- they can only translate one.
14 I couldn't listen to you because I don't speak
15 Serbo-Croat. Mr. Vujin, the witness answered. You have
16 an objection? On what basis?
17 MR. VUJIN: I apologise. I have an objection, because
18 I think that Mr. Niemann and Mr. Aleksic do not understand
19 one another.
20 JUDGE McDONALD: That's not really the basis for an
21 objection. Let us see if we can end it real quick.
22 They seem to be understanding one another.
23 MR. VUJIN: If I understood the question well, then I would
24 ask that it be repeated to the Professor, so ask him
25 what is the system of sanctions.
1 JUDGE McDONALD: Mr. Vujin, I will overrule your
2 objection. You will have an opportunity on re-direct to
3 in your mind clarify anything that the witness does not
4 understand. He is a Professor of law with many years of
5 experience. He has answered the question. You will have
6 an opportunity.
7 MR. VUJIN: Thank you.
8 JUDGE McDONALD: Professor, let me ask you a question.
9 A. Yes, please.
10 JUDGE McDONALD: When the death penalty was in effect,
11 typically the maximum would be 15 years or the death
12 penalty; is that correct?
13 A. Yes.
14 Q. Then the death penalty was obviously used for those
15 persons who were considered to be the most serious
16 violators and obviously beyond rehabilitation. They
17 were a threat to society and it was determined,
18 rightfully or wrongfully, that --
19 A. Yes, yes.
20 Q. That (inaudible). The judge, though, under certain
21 circumstances could still choose not to sentence the
22 individual to the death penalty but instead give him or
23 her 20 years; is that correct?
24 A. You are absolutely right.
25 Q. Was that then recognition of the fact that there are
1 individuals who must be punished, punished for their
2 crimes as opposed to rehabilitated, but not go so far as
3 to pronounce the death penalty on them? I think that's
4 the essence of Mr. Niemann's question, and if you don't
5 know, you may not know, and then we will go on to
6 another area?
7 A. I think it is impossible not to know that, because there
8 isn't a single criminal lawyer that has not studied the
9 death penalty anywhere or at some time. Therefore, I am
10 again risking that you will say that it is my personal
11 opinion, but it is also the view of the legislator,
12 I think, that the death penalty is collapsed, is a
13 fiasco of all noble feelings and faith in man in any
14 society, and that is why the legislator has limited this
15 to a minimum. I must tell you that in the former
16 Yugoslavia, SFRY, there were maybe one to two death
17 penalties up to 1991 a year throughout Yugoslavia, which
18 has now been reduced to a piece of that former
19 Yugoslavia. Therefore, it is something so exceptional
20 that I don't feel well if I were to say that the judge
21 was being revengeful in his sentencing rather than doing
22 what he had to. I think anyone who hears that a death
23 penalty has been pronounced, he knows that this is a
24 relic which was present in our case until recently
25 unfortunately, but I find comfort in the fact that there
1 are a number of codes in the world left that still
2 retain the death penalty.
3 JUDGE McDONALD: What was the purpose of the 20 year
4 penalty? That was my question. I wasn't talking about
5 the death penalty?
6 A. The purpose, the purpose of the 20 years. The
7 legislator tried to give a last chance to the offender
8 to preserve him from total exclusion from society, from
9 total destruction and removal from society. Let me give
10 you an example. If somebody committed a terribly
11 ruthless criminal offence and then one of the mitigating
12 circumstances was found, those that I mentioned, then
13 the court would sentence him to 20 years in the belief,
14 in the conviction that 20 years is a very severe
15 penalty, and it has a very detrimental effect on the
16 psyche of the prisoner.
17 MR. NIEMANN: Professor, I want to move on to something
18 else, if I may. Professor, is there or was there or has
19 there ever been in the former Yugoslavia or any of the
20 republics of the former Yugoslavia any system sponsored
21 by the government or other organisation of state to
22 assist the victims of crime?
23 A. To assist the victims of crime? Could you explain that
24 for me, please? Which kind of criminals?
25 Q. Is there any mechanism available where people who have
1 been robbed, raped or badly assaulted or otherwise
2 affected by criminals, where they can recover damages
3 for the injuries that they have suffered?
4 A. First, I have to say that in Belgrade in particular, as
5 the capital of our country, we have telephone for raped
6 women, a phone number for women suffering beatings and
7 injuries in the home, and these kinds of services extend
8 assistance to the victims to attain justice. They can
9 accommodate them outside their homes in the case of
10 assault in marriage. There are such things but the
11 standard procedures are lawyers providing counsel and
12 for the poor, the indigent, they are entitled to defence
13 too, and then we have something else attached to all the
14 municipalities. There are committees or some kind of
15 legal assistance it is called, which is given by the
16 municipality free of charge. If I was damaged, for
17 instance, I can go to my municipality, to the office,
18 and ask the employee to compile a complaint on my
19 behalf. That is something that exists and it has just
20 occurred to me. Of course, in psychology departments we
21 also have sections dealing with the victims of war and
22 providing assistance to people who need to be assisted
23 in the removal of stress, which necessarily accompanies
25 Q. Professor, you said that you had a seven person rule of
1 someone affected by having to serve a sentence, and the
2 effect that it has. You would agree with me that
3 probably equally the same number of persons or probably
4 more may well be affected if they were victims of
5 crime. Do you agree?
6 A. Certainly. Certainly, and those persons, the victims,
7 or people close to the victims, suffer much more than
8 these other seven that I mentioned. This is just an
9 arbitrary number that I have chosen, but I think it
10 corresponds to the truth more or less.
11 Q. I think you would agree with me also that victims who
12 have been very badly affected by crime may also find it
13 hard to find their place in the sun?
14 A. Certainly. That is why these services exist, those that
15 I have referred to, to overcome stress, but I think it
16 is up to every society to extend a helping hand to those
17 victims, because they badly need that assistance and
18 more quickly than the perpetrators.
19 Q. Thank you, your Honour.
20 JUDGE McDONALD: Mr. Vujin, do you have any re-direct?
21 MR. VUJIN: No, thank you, your Honour. I think that what
22 the Professor was intending to say as a Professor, he
23 said it, and the Prosecutor's question is not so much a
24 matter of law as a matter of other sciences to assess.
25 JUDGE McDONALD: Mr. Vujin, please don't -- that's not
1 appropriate really, to comment on questioning by
2 counsel. We try to be very nice to each other in this
3 courtroom at least.
4 JUDGE STEPHEN: Professor, as I understand it, the
5 possibility of imposing a 20 year sentence only arose in
6 the event of a death penalty being thought to be
7 otherwise justifiable. It was a substitute for the
8 death penalty. My question to you is: what happened
9 after the abolition in parts of Yugoslavia at least of
10 the death penalty? Was it still possible to impose a 20
11 year sentence or not?
12 A. The death penalty and the 20 year sentence, this 20 year
13 sentence is called an alternative penalty in lieu of
14 death. So when the death penalty is abolished, there
15 will be no 20 year sentence, but the new law will
16 probably provide for something like lifelong
17 imprisonment or a substitute for that. I don't know.
18 But there can't be an alternative penalty if there isn't
19 the original penalty.
20 JUDGE STEPHEN: Yes. Exactly. That's the problem that I'm
21 directing my question to, and without speculating on
22 what the future law may be, life imprisonment or
23 otherwise, the position at the moment, I suppose, is
24 that since 20 years was only as an alternative to the
25 death penalty, once the death penalty has gone, 20 years
1 cannot be imposed; that's your understanding, is it?
2 A. Yes. Yes. Certainly. It is an alternative penalty.
3 It is imposed instead of. The judge cannot stand up and
4 say: "I convict you to 20 years". He stands up and
5 says: "I sentence you to death, but because of various
6 mitigating circumstances I am changing that sentence to
7 20 year's imprisonment", now when the death penalty is
8 completely abolished, the legislator will have to find
9 some other solutions. Some way out has to be found.
10 I do not wish to convey my opinion, because there's no
11 need for that now.
12 JUDGE STEPHEN: No, I do not ask you for that. Then we
13 find that the abolition of the death penalty has been
14 piecemeal. It occurred, as I understand it, in about
15 1990 in Slovenia. You say that only two or three years
16 ago it occurred in Serbia. Does that mean that during
17 that piecemeal process you had parts of Yugoslavia where
18 the 20 years could be ordered and other parts where it
19 could not be, or did it depend on whether the offence
20 was a state offence or a Federal offence?
21 A. I was probably not precise enough when I referred to
22 Slovenia. There was the death penalty in Slovenia in
23 the law but it was not pronounced for 20 years.
24 JUDGE STEPHEN: I am only concerned with the law, not what
25 was done?
1 A. It existed. It existed until Yugoslavia broke up. It
2 existed in all the laws of all the republics, but with
3 the change and the formation of the Federal Republic of
4 Yugoslavia, the constitution provides for the abolition
5 of the death penalty, and now it's simply a question of
6 the adjustment of the law. I don't know whether you are
7 interested, but in practice it is very, very rare.
8 JUDGE STEPHEN: Yes, I appreciate that. Can you then give
9 us a date when you say this change took place and the
10 death penalty was abolished for the whole of Yugoslavia,
11 because I had thought that it differed, depending on the
12 particular republic. Can you give me a date when you
13 say ...
14 A. In the SFRY, the former Yugoslavia, up to 1991, shall we
15 say, the death penalty was provided for in all the laws
16 of the republics and all others. Now it is another
17 matter whether it was implemented. But when Yugoslavia
18 broke up after the Badinter Commission and its opinion,
19 the Federal Republic of Yugoslavia passed a
20 constitution. Was it 1992 or 1993? These younger
21 colleagues of mine remember the dates better than me.
22 The constitution was promulgated, which abolished the
23 death penalty in the Federal constitution, but the
24 problem was that Montenegro does not have the death
25 penalty, and Serbia had it from before, and this still
1 hasn't changed. I know it seems very illogical to you,
2 but I'm quite frank here speaking before this Trial
3 Chamber, and I'm telling you the situation as it is.
4 JUDGE STEPHEN: Can I ask you an entirely different
5 question? The Federal Criminal Code, you, of course,
6 are very familiar with. There's an Article in it,
7 Article 142. I don't know if you are familiar with that
8 Article, which deals with various crimes against
9 civilian populations in a situation of war. That
10 appears to mirror Geneva Convention 4. Is there any --
11 that you are aware of -- any similar Article in the
12 Penal Code, the Federal Penal Code, dealing with the
13 crimes against humanity, or dealing with common
14 Article 3 of the Geneva Conventions common to all those
15 conventions? I don't know if you can help me on this?
16 A. The Geneva Conventions, like other humanitarian
17 conventions, that apply in particular to international
18 crimes against humanity and the civilian population, are
19 an obligation for Yugoslavia, as we were a signatory.
20 Being an obligation, they have been incorporated in the
21 criminal code, but those conventions, if I remember
22 well, do not envisage necessarily the death penalty.
23 JUDGE STEPHEN: No, I'm not concerned with the death
24 penalty at all. All I'm asking you is --
25 A. But we are under obligation. We signed that convention
1 and it has been incorporated in the national
2 legislation. That is the standard method of acceding to
3 a convention.
4 JUDGE STEPHEN: If I can put my question perhaps more
5 clearly: do you know whether that category of
6 humanitarian -- international humanitarian law, commonly
7 described as crimes against humanity, have made their
8 appearances in any particular Article of the Federal
9 Penal Code?
10 A. Yes, in the chapter which is headed as you said. In the
11 initial chapters there is mention made of the crimes
12 against humanity. I don't know the exact titles, but
13 there's a whole series of Articles regarding treatment
14 of prisoners, of the wounded, civilian population, the
15 children and all that. All that is absolutely listed in
16 the Criminal Penal Code -- in the Criminal Code.
17 JUDGE STEPHEN: Thank you.
18 JUDGE McDONALD: Just one question, Professor. You
19 indicated in 1992 or in 1993 the Federal Republic of
20 Yugoslavia abolished by constitution at least the death
21 penalty. In the materials submitted by the Prosecution
22 they have made reference to other republics abolishing
23 the death penalty. There's no indication, though,
24 unless I'm wrong, about the status in Bosnia and
25 Herzegovina. Do you know whether Bosnia and Herzegovina
1 has by constitution at least abolished the death
3 A. Let me say that I'm not familiar with the new
4 legislation of Bosnia-Herzegovina, but I believe that
5 they support the same trend as in Croatia and Slovenia.
6 JUDGE McDONALD: That would be to abolish the death
8 A. It's like a sequence of events.
9 JUDGE McDONALD: Mr. Vujin, do you have additional questions
10 of the Professor?
11 MR. VUJIN: Your Honour, we would ask for a brief pause if
12 we could consult with our client, Mr. Tadic just for a
13 minute, please. We would ask the indulgence of the
15 JUDGE McDONALD: We normally take a recess at 4, and so we
16 will take a recess now. Does that relate to whether you
17 have additional questions of the Professor?
18 MR. VUJIN: Yes.
19 JUDGE McDONALD: Okay. Very good. We will stand in recess
20 until 4.20.
21 (4.05 pm)
22 (Short break)
23 (4.20 pm)
24 (Witness re-enters court)
25 JUDGE McDONALD: Mr. Vujin, do you have additional
2 MR. VUJIN: Yes, your Honour.
3 Re-examination by Mr. Vujin
4 MR. VUJIN: Mr. Aleksic, we have only a few additional
5 questions related to the system of criminal legislation
6 in Yugoslavia. Is it possible in Yugoslavia for one
7 accused person to stand on trial simultaneously for a
8 few crimes vis-à-vis one person? To be clear, I'll take
9 an example. If he was charged with murder, can he be
10 pronounced guilty also of having inflicted suffering or
11 heavy wounds on that same person who was murdered?
12 A. The customary method is that the gravest crime
13 consummates the previous. It would be very strange if
14 somebody murders someone that he is also being tried for
15 having beaten that person or broken his teeth or
17 Q. So this overall punishment in that case consummates
18 that. I am just interested in whether he can be
19 proclaimed guilty for several crimes or only murder?
20 A. No, only one, murder, because murder consummates all the
22 Q. So can it be said that the gravest crime he can be
23 charged with consummates all the other crimes he can be
24 charged with in such cases?
25 A. Absolutely. I think the list, the order is
2 Q. So bodily injury is less important than life itself, and
3 when a sentence is passed and when there are found --
4 when a verdict is pronounced of being guilty, does the
5 court take into account the responsibility of all
6 concerned and if, for example, the maximum sentence that
7 can be pronounced is 15 years, and if a 13 year sentence
8 is pronounced, do the others involved get lesser
10 A. Perhaps. I wasn't clear before because everybody is
11 held responsible within the framework of his or her
12 intent, but the total of 15 years cannot be exceeded.
13 That is the ceiling of punishment in Yugoslavia, whereas
14 the other participants, especially if someone gave up
15 voluntarily, the other accomplice can even be freed,
16 whereas the main culprit can get 13 years.
17 Q. Is it possible for the first indicted person to be
18 sentenced to 13 years and the other 7 years and the
19 third one 3 years, etc.?
20 A. That is up to the court. Depending on the extent to
21 which he deserves such punishment, what he did, the
22 degree of culpability, attitude, etc.
23 Q. So whether he was a subordinate or actively involved or
24 only present?
25 A. Certainly all of that is taken into account. There are
1 cases that we call in Yugoslavia in Latin "dolus
2 resource" (sic). We can use somebody to do something
3 without that person being aware of that crime. I as the
4 instigator are going to be more responsible than the
5 person who was used. Sorry, I should just add that the
6 maximum of 15 years cannot be exceeded. That is the
7 ceiling in Yugoslav legislation and the judiciary.
8 Q. Just one more thing, Professor. You said that these
9 figures were outdated. I am interested in the practice
10 in the Federal Republic of Yugoslavia now when imposing
11 criminal sanctions?
12 A. As I said, I cannot give an exact explanation, but if
13 you look at the annual reports for sanctions and crimes
14 that is made by the statistical office of Yugoslavia, by
15 the department for the judiciary within that office
16 shows that the punishment for certain crimes is around
17 the minimum, if I can use that expression, and the
19 Q. What is the minimum punishment envisaged for crimes
20 against humanity? Is it true it is five years?
21 A. Yes. From five years onwards.
22 Q. Thank you, Professor.
23 JUDGE McDONALD: Mr. Niemann, additional cross?
24 MR. NIEMANN: No.
25 JUDGE McDONALD: A couple of questions, Professor. In
1 response to Mr. Vujin's question regarding sentencing for
2 the gravest crime, so that if you sentenced a person for
3 murder, if he also in the process of murdering, as you
4 said, broke arms or something, obviously you would not
5 sentence for that; is that correct?
6 A. Yes. It is quite correct. He is sentenced for murder,
7 but there are also qualified forms of murder, whether
8 this is done in a particularly ruthless way and whether
9 pain is inflicted upon the victim before death, but what
10 happens in practice regrettably, for example, cutting up
11 a corpse, that is not taken into account to such a large
12 extent, because the victim does not suffer pain.
13 Q. And are you referring to when there is one victim,
14 I gather?
15 A. Yes. Now I'm talking about one victim, but ruthlessness
16 towards several people, towards prisoners, is certainly
17 an aggravating circumstance in our position to the
18 mitigating circumstance that I spoke of, it is only
19 natural in the Criminal Code that there are aggravating
20 circumstances too.
21 JUDGE McDONALD: In the Federal Republic of Yugoslavia are
22 there certain crimes -- let me put it this way -- are
23 there certain acts that could be committed by an
24 individual that may result in more than one crime
25 because of the different elements that crimes have?
1 A. Could you please repeat your question once again.
2 Perhaps the translation wasn't good.
3 JUDGE McDONALD: I'm sure the translation was wonderful.
4 In our statute without delving too deeply, for example,
5 we may have a crime against humanity. We have may also
6 have a crime that is denominated laws or customs of
7 war. An individual commits an act and because of that
8 act a factual determination is made that he has
9 committed the act beyond reasonable doubt and then you
10 look to determine whether or not that act constitutes a
11 criminal offence. You then look at the elements for the
12 offences and you may find that, for example, crimes
13 against humanity may require certain elements and laws
14 or customs of war require different elements. In your
15 system would a person -- could a person be sentenced
16 under crimes for -- for committing a crime against
17 humanity as well as committing a law or custom of war,
18 because the acts, although the same, involve different
20 A. Your question is not an easy one at all, because I must
21 say that until 1991 we had such cases very rarely.
22 Immediately after the Second World War when war
23 criminals were tried, war criminals of the Wehrmacht,
24 Germany, but then there was an interval during which
25 there were not such cases. Sporadically there were
1 cases that a war criminal would be discovered
2 subsequently much later and he would be brought before a
3 court of justice then, but now the situation is
4 different. A distinction should not be made. After all
5 a grave crime consumes a lesser crime. That would be a
6 general rule. I'm sorry for not being in a position to
7 give you a better answer.
8 JUDGE McDONALD: Thank you. Mr. Vujin, do you have
9 additional questions?
10 MR. VUJIN: No, thank you.
11 JUDGE McDONALD: Mr. Niemann?
12 MR. NIEMANN: No.
13 JUDGE McDONALD: I would like to ask the parties, before we
14 excuse the Professor, because perhaps he can be of
15 assistance, I would like you, Mr. Vujin, and you,
16 Mr. Niemann, to provide the Trial Chamber as quickly as
17 possible with information regarding the status of the
18 death penalty in Bosnia and Herzegovina, that is if it
19 was abolished, when it was abolished; if it was
20 abolished by constitution, we would like a citation to
21 the constitutional provision, and if a determination can
22 be made of what is the practice of sentencing since the
23 death penalty has been abolished, if it has been
24 abolished, what that practice is and what evidence there
25 is of that practice. Is there anything else? Okay.
1 How quickly can that be provided do you believe?
2 Monday? Friday?
3 MR. NIEMANN: We are optimistic we may be able to provide it
5 JUDGE McDONALD: An effort will be made to provide it
6 tomorrow by the Prosecution. Please make sure the
7 Defence has a copy of whatever is provided. Then,
8 Mr. Vujin, we would like the position of the Defence as
9 to the material provided by the Prosecutor.
10 Thank you, Professor. You are excused. Thank you
11 very much for coming to us and talking to us about these
13 A. I just have one question, your Honour. The
14 administration of your Tribunal informed me two days ago
15 that I wouldn't be needed by the court and that I could
16 go back tomorrow, because I came here not to address the
17 administration but the Chamber. I would like to hear it
18 from the Chamber whether I can travel back to my country
19 tomorrow. I don't like it when the administration
20 decides about me and prepares my return ticket, etc.
21 I hope that you understand me.
22 JUDGE McDONALD: I do understand you. I share your views.
23 As far as I'm concerned, and I hope I have sufficient
24 authority, you are excused and you may leave tomorrow.
25 The parties have no objection. Thank you very much.
1 A. So I can leave tomorrow?
2 JUDGE McDONALD: Yes.
3 A. Thank you. It was a great honour:
4 (Witness withdraws from court).
5 JUDGE McDONALD: Now, Mr. Vujin, I understand that you do
6 not have additional witnesses at this time except for
7 Dr. Nedopil, who will be here on Friday, and we will hear
8 from him after we complete the initial appearance on
9 Friday, which begins at 10. So in the vicinity of 11
10 o'clock we will begin to hear from him.
11 Now we wanted to hear the positions from counsel
12 as to the appropriate sentence. The Prosecution is to
13 proceed first. Mr. Niemann.
14 MR. NIEMANN: Your Honour, I have the psychiatric reports
15 that we have given to the Defence, and there is
16 agreement that they can be handed up to the court. The
17 translation is satisfactory for their purposes.
18 I tender them now. Because they come from us they may
19 be Prosecution Exhibit 373. In handing them up, your
20 Honour, I note that there is reference in them to
21 witnesses, at least one witness who is given protection,
22 so it may be appropriate, your Honour, if rather than
23 breach your Honours' orders in relation to the witness
24 protection that they be marked confidential.
25 JUDGE McDONALD: They can either be marked confidential or
1 the references can be redacted, however you wish to
2 handle it.
3 MR. NIEMANN: Just confidential would satisfy our
4 requirements, your Honour.
5 JUDGE McDONALD: Is there any objection, Mr. Vujin?
6 MR. VUJIN: No, your Honour.
7 JUDGE McDONALD: Fine. Then Prosecution Exhibit 373 will
8 be admitted and it will be admitted as confidential
9 under seal.
10 MR. NIEMANN: Your Honour, I notice that --
11 JUDGE McDONALD: Excuse me just a minute. (Pause) Yes,
12 Mr. Niemann?
13 MR. NIEMANN: I notice the time is twenty to five. I could
14 well finish by 5.30 but if I am not finished by then,
15 I would not expect to be more than ten minutes beyond
16 that. If your Honours would indulge me, I would prefer
17 to complete my address today if that is possible.
18 JUDGE McDONALD: We would indulgence even if it is more
19 than ten minutes but not more than 15. Take your time
20 and use what time is necessary.
21 MR. NIEMANN: Your Honour, in this situation I do not wish
22 to cover anything that we have referred to in our brief,
23 unless your Honours have questions on any of the matters
24 we raised in the brief.
25 Your Honour, under Article 24, paragraph 2 and
1 Rule 101 of the Rules there is provided that in
2 determining the sentence the Trial Chamber shall take
3 into account, and I mention the relevant matters for
4 these proceedings: the gravity of the offence, the
5 individual circumstances of the accused, mitigating
6 circumstances including co-operation with the Prosecutor
7 and the sentencing practice in the former Yugoslavia.
8 The Trial Chamber is also required to indicate
9 whether multiple sentences are to be served concurrently
10 or consecutively and credits to be given for time spent
11 in custody prior to surrender and prior to trial.
12 I shall now deal with each one of these issues one
13 by one.
14 Turning, firstly, to the gravity of the offence,
15 the convicted person, Tadic, has been found guilty of
16 five counts of war crimes and six counts of crimes
17 against humanity. A crime against humanity is of the
18 same species as genocide and after genocide is the most
19 heinous crime in the jurisdiction of the Tribunal and,
20 of course, one of the most serious crimes that anyone
21 can be convicted of. Under the Nuremberg Charter the
22 penalty for a person convicted of a crime against
23 humanity was either the death penalty or any other
24 penalty deemed just. States which included crimes
25 against humanity in their national criminal laws have
1 almost universally prescribed the most severe penalty
2 permitted in their system for the commission of this
4 In the sentencing decision of the Trial Chamber in
5 Erdemovic at paragraph 28, page 14, the Chamber, when
6 speaking of the seriousness of crimes against humanity,
8 "Crimes against humanity are serious acts of
9 violence which harm human beings by striking what is
10 most essential to them: their life, liberty, physical
11 welfare, health or dignity. They are inhumane acts that
12 by their extent and gravity go beyond the limits
13 tolerable to the international community, which must per
14 force demand their punishment. But crimes against
15 humanity also transcend the individual, because when the
16 individual is assaulted, humanity comes under attack and
17 is negated. It is therefore the concept of humanity as
18 victim which essentially characterises crimes against
20 Professor Bassiouni, when describing the nature of
21 crimes against humanity, said in relation to the
22 Nuremberg Charter:
23 "The Charter establishes a generic criminal
24 category labelled "crimes against humanity" to fit the
25 unforeseen and unforeseeable depredations and only the
1 unbridled nefarious imagination of evil and banal men
2 could have actuated. Indeed, the facts that gave rise
3 to "crimes against humanity" were too barbarous to
4 foresee and thus no specific positive law existed that
5 covered all the misdeeds committed".
6 This is a quote from Professor Bassiouni's book
7 entitled "Crimes Against Humanity in International Law:
8 The Netherlands", Martinus Nijhoff Publishers, (1992),
9 page 149.
10 Count 1, the persecution count, is in our
11 submission a particularly serious crime. It was an evil
12 crime. The convicted person, Tadic, had no reason to do
13 what he did. He did it out of greed, hatred, jealousy
14 and intolerance. Politically motivated, he joined the
15 push for greater Serbia and the Muslim population were
16 in the road.
17 Tadic was two-faced. He portrayed himself as a
18 friend of the Muslims but obviously at all times
19 harbouring a deep hatred of these people who had
20 extended to him the hand of friendship.
21 Clearly he resented deeply being in the minority
22 in the town of Kozarac and waited for the day to arrive
23 when the tables would turn. When the time came with
24 enthusiasm he joined the forces of the Bosnia Serbs and
25 assisted them in the task of ridding the area of the
1 Muslims and Croats.
2 As set out in our tendered declarations marked
3 Prosecution Exhibit P371 and P372, the suffering that he
4 personally was instrumental in causing to these people,
5 his victims, is hard to fully comprehend, but he has
6 been indirectly responsible for contributing to the
7 devastation of the lives of the people in the Prijedor
8 area, and for what egregious crimes were these tragic
9 victims being so cruelly punished? Their crime is they
10 were different. That's all. They were different.
11 A crime against humanity is one of extreme
12 gravity, demanding the most severe penalty. It is the
13 most serious crime on the criminal calendar, and one
14 should, in our submission, approach sentencing as one
15 would ordinarily deal with the most serious crime in the
16 criminal calendar. In some jurisdictions you have
17 mandatory life sentences; in other jurisdictions you
18 have the death penalty.
19 In circumstances where you have multiple murders,
20 then the court can impose multiple life sentences, or
21 order that convicted persons serve the rest of their
22 life in prison, or that the papers be marked "never to
23 be paroled". In most jurisdictions life sentences are
24 substantially reduced by remissions or parole. Thus, a
25 life sentence can mean less than 15 years served, unless
1 the court otherwise orders.
2 It is the position of the Prosecutor that with
3 respect to crimes against humanity one starts with a
4 sentence of life imprisonment. One must consider the
5 possibility of multiple life sentences for multiple
6 convictions of crimes against humanity. Depending on
7 whether the sentence is remitted or paroled, one must
8 consider whether or not the sentences should be served
9 consecutively or concurrently, or expressed differently,
10 whether all the sentences should start and end on the
11 same date. For separate events involving crimes of
12 similar gravity, where the crimes are very serious,
13 there is no reason in our submission consistent with
14 logic why the sentences should be concurrent.
15 The overall offending in this case is not the most
16 serious likely to come before this Tribunal, but it is
17 certainly not to be regarded as minor offending either.
18 The personal culpability however and the evil he
19 perpetrated is one of the most sinister and serious in
20 nature. However, we are not pressing for multiple life
21 sentences, nor are we suggesting that sentences should
22 be served consecutively. It is our submission that with
23 respect to Count 1, your Honours' consideration should
24 commence with a sentence of life imprisonment. In
25 respect to the other crimes against humanity, your
1 Honours might consider imposing a very severe sentence
2 of less than life imprisonment, but for such sentences
3 to be served concurrent with the sentence of life
4 imprisonment. In our submission the war crimes counts
5 should attract a lesser penalty than the crimes against
6 humanity, and these, too, should be concurrent with the
7 other sentences. In relation to all the offences, your
8 Honours may wish to consider making a recommendation
9 that all the sentences should earn remission at the same
10 rate as other prisoners serving similar sentences in the
11 institution where the accused is to serve his sentence
12 should apply.
13 I now turn, your Honours, to the individual
14 circumstances of the accused.
15 At the time of the commission of the crimes
16 charged in the indictment the convicted person Tadic was
17 36 and a half years of age. He was married with two
18 children. He had lived in Kozarac for the most part of
19 his life and he knew most of its inhabitants.
20 In our submission it is not possible for Tadic to
21 paint a picture of himself as a young, inexperienced
22 man, tragically caught up in the horrors of war, from
23 which he could not escape or fail to participate. There
24 is absolutely no evidence to suggest that Tadic had to
25 commit any of the crimes for which he has been found
1 guilty. On his evidence he was a traffic policeman.
2 His wife and family were given privileged status. He
3 did not have to go to the camps at Omarska, Trnopolje or
4 Keraterm and when there, to cruelly beat, torture and
5 depravely molest the prisoners. He did not have to
6 actively and enthusiastically participate in the
7 rounding up, torture and murder of the unfortunate
8 non-Serb victims in Kozarac and then to take from these
9 helpless souls their lives, possessions, their children
10 and their relatives.
11 Nor was Tadic motivated to do what he did because
12 he was compelled to carry out the wishes of the state
13 under threat of punishment. No. He enthusiastically
14 participated in this evil plan of the state as a willing
15 worker, one of Karadzic's henchmen, and in his depravity
16 he sought recognition. He expected to be endowed with
17 gifts and favours by corrupt but grateful officials of
18 an evil administration.
19 There is nothing sinister in Tadic's family
20 background to engender any sympathy. He does not come
21 from a tragic family background. He was not deprived or
22 abused in his youth. He does not appear to have
23 suffered any great personal tragedy in his life, which
24 would cause him to unwittingly stumble into this
25 situation. He came from a solid family background. His
1 father was a respected Second World War hero. Compared
2 to his fellow citizens in Kozarac, he was not
3 underprivileged or discriminated against in any way. He
4 was respected and liked in the community. What then
5 could possibly have motivated him to commit the
6 outrageous crimes for which he has been found guilty?
7 The answer, in our submission, is clear. It was greed
8 and power. If the Muslims and Croats were out of the
9 area, then this meant more for the Bosnia Serbs, and if
10 this meant more for the Bosnia Serbs, then it meant more
11 for Tadic.
12 Accordingly, there is nothing in the individual
13 circumstances or background of Tadic which in our
14 submission would justify a reduction of the sentence the
15 court would otherwise impose.
16 Mitigating circumstances, including co-operation
17 with the Prosecutor.
18 The convicted person, Tadic, has done nothing to
19 co-operate with the Prosecutor. He has shown absolutely
20 no remorse for the crimes that he has committed, nor has
21 he indicated in the slightest way that he is in any way
22 sorry for the terrible tragedy that he has brought upon
23 his hapless victims.
24 This utter lack of remorse or appreciation of the
25 nature of his crimes has continued over the period of
1 the last few days.
2 It is extraordinary that Tadic would continue to
3 portray himself as a victim. This is the individual who
4 was President of the Kozarac SDS, who was given the
5 responsibility for conducting the plebiscite in
6 Kozarac. He actively participated in the attack of
7 Kozarac and the murder and torture of Muslims and Croats
8 from the area. After that he was given what has been
9 referred to as the privileged and safe position of a
10 traffic policeman. He was appointed to the high
11 position in Kozarac with control over the distribution
12 of property and finally appointed as a Serbian Red Cross
13 official, so that he had direct access to all the
14 humanitarian aid coming into Kozarac.
15 Then he claims that he has been persecuted by
16 Prijedor officials. We believe the evidence suggests
17 that was the result of a dispute between greedy
18 officials, nothing that should engender sympathy from
19 this Tribunal.
20 Your Honours, it is instructive to compare the
21 Erdemovic case with this case. Erdemovic, unlike Tadic,
22 has given extensive assistance to the Prosecutor.
23 Erdemovic, unlike Tadic, was prepared to surrender
24 before he was indicted. In fact, unlike Tadic, there
25 was no investigation going on in relation to him at the
1 time he was prepared to surrender. Erdemovic, unlike
2 Tadic, made a full and free confession, without which no
3 prosecution against him would have been commenced at
4 that time. Erdemovic, unlike Tadic, later voluntarily
5 repeated his confession to the Trial Chamber.
6 Erdemovic, unlike Tadic, specifically sought his
7 transfer to The Hague for trial. Erdemovic, unlike
8 Tadic, gave the Prosecutor extremely important
9 information and leads which at the time was otherwise
10 unobtainable. The information Erdemovic gave greatly
11 assisted the Prosecution with on-going investigations.
12 Erdemovic, unlike Tadic, freely gave evidence in a Rule
13 61 hearing against Karadzic and Mladic. Erdemovic,
14 unlike Tadic, was a very young man of 23 years of age
15 when he committed the crime. Erdemovic, unlike Tadic,
16 was the Bosnia Croat in a Bosnia Serb army. Erdemovic,
17 unlike Tadic, was in no way politically motivated to
18 commit the crimes that he did. Erdemovic, unlike Tadic,
19 did not plan to commit the crime. He knew nothing about
20 it until he was on the scene of the crime. Erdemovic,
21 unlike Tadic, did not commit the crime out of hatred or
22 greed. Erdemovic, unlike Tadic, simply obeyed orders
23 under threat of death or punishment. Erdemovic, unlike
24 Tadic, clearly demonstrated that he was disgusted and
25 appalled at the fact that he had participated in such a
1 terrible crime. Erdemovic, unlike Tadic, was convicted
2 and sentenced on only one count of a crime against
3 humanity. Erdemovic was sentenced to ten year's
5 In our submission co-operation with the Prosecutor
6 should be substantially rewarded by giving a significant
7 reduction in the sentence, 50-75 per cent off the
8 sentence than would otherwise be imposed, had it not
9 been for the co-operation, is in some circumstances
10 justified in our view. The Prosecutor of the Tribunal
11 is confronted with a great many more obstacles than that
12 normally encountered by police in domestic settings.
13 The Prosecutor has limited access to the scene of the
14 crime and to many of the potential witnesses. Indeed,
15 in the place where both Erdemovic and Tadic committed
16 their crimes, there was outright hostility at the time
17 towards investigators from the Tribunal. Even
18 unobstructed access to the crime scene involves very
19 expensive and difficult travel from The Hague to the
20 Balkans. Accordingly in the investigations undertaken
21 by the Prosecutor of this Tribunal there are often many
22 missing pieces to the jigsaw that the Prosecutor has
23 enormous difficulty in filling. One co-operative
24 participant such as Erdemovic can save the international
25 community huge sums of money which would otherwise have
1 to be spent on lengthy and detailed investigative work.
2 Very important information can mean the difference
3 between a prosecution or not.
4 Further, the Prosecution has much difficulty in
5 getting the accused persons arrested and brought before
6 the Tribunal for trial.
7 Strong consideration should be given to those who
8 voluntarily surrender. The Prosecution sees great value
9 in sending a clear signal to non asserted persons that
10 people who co-operate with the Tribunal in terms of
11 providing information, who voluntarily confess to their
12 crimes, plead guilty, voluntarily surrender, will get
13 favourable considerations for those acts and may receive
14 a significant reduction in the sentence they would
15 otherwise receive.
16 More importantly, such co-operation also says a
17 great deal about the true character of an individual and
18 the remorse, if any, he feels for the crimes that he has
19 committed. The Prosecutor takes the view that people
20 such as Tadic, who have not done any of these things,
21 cannot expect any or any significant mitigation of the
22 sentence. In our submission, the convicted person,
23 Tadic, should get no mitigation of his sentence under
24 this heading.
25 I turn now, your Honours, to the sentencing
1 practice in the former Yugoslavia.
2 In the former Yugoslavia serious crimes of this
3 nature could in 1992 attract the death penalty.
4 Subsequently the death penalty has been abolished.
5 Prior to the abolition of the death penalty the
6 prevailing attitude to sentencing was that life
7 imprisonment was considered too cruel a treatment.
8 Presumably the death penalty was not so considered. In
9 any case a serious offender received the death penalty
10 or 15 year's imprisonment.
11 Following the abolition of the death penalty,
12 judges were given the option of sentencing an offender
13 to a term of imprisonment of up to 20 years, but this
14 was considered to be an exception. Accordingly, when
15 the Tribunal created its Rules of Procedure and
16 Evidence, there was no power for a court in the former
17 Yugoslavia to impose a life sentence on an offender, no
18 matter how serious the offending.
19 This matter was specifically addressed by the
20 court, by the Chamber in the Erdemovic case. In
21 Erdemovic in the sentencing decision, page 33 --
22 paragraph 33, the Trial Chamber reviewed the meaning of
23 the reference to "recourse to the general practice
24 regarding prison sentences in the courts of the former
25 Yugoslavia" as provided for in Article 24(1) and Rule
1 101 (A). The Chamber noted that at the time of the
2 commission of the crimes the republics had no equivalent
3 provisions to crimes against humanity. However,
4 articles 141-156 of Chapter 14 of the Federal Criminal
5 Code of the former Yugoslavia covered inter alia
6 genocide and war crimes perpetrated against the civilian
8 The Chamber in Erdemovic then noted that the
9 minimum terms of imprisonment that could be imposed for
10 crimes was five years with a maximum of 15 years with a
11 provision of a term of 20 years that could be imposed if
12 substitution of the death penalty or for aggravated
13 instances of the offence.
14 The Trial Chamber then noted that there was no
15 direct equivalent of the Tribunal's Article 5 in the
16 Criminal Code of the former Yugoslavia, and then
17 concluded that the only principle that should be given
18 weight when examining the Criminal Code of the former
19 Yugoslavia is that for offences of this kind the most
20 severe penalty available should be applied. That's at
21 paragraph 35, if your Honours please.
22 The Trial Chamber then observed there was no court
23 decision from the former Yugoslavia available for crimes
24 of this nature that could usefully assist the Tribunal
25 in drawing conclusions as to their sentencing practices.
1 The argument that the reference to the general
2 practice regarding prison sentences in the former
3 Yugoslavia was to overcome any objections arising due to
4 the principle of "nullum crimen" was rejected by the
5 Chamber on the basis that such an argument defeats the
6 universal nature of these crimes. Your Honours said
7 that at paragraph 38.
8 The trial chamber then said that the reference to
9 the general practice in Yugoslavia was for guidance
10 purposes only and was not to be considered binding. It
12 "Whenever possible, the international Tribunal
13 will review the relevant legal practices of the former
14 Yugoslavia, but will not be bound in any way by those
15 practices in the penalties it establishes and the
16 sentence it is imposes for the crimes falling within its
18 That's at paragraph 40, if your Honours please.
19 They then go on to say with respect to the overall
20 aims of punishment, different national jurisdictions
21 have different objectives in mind when determining what
22 the appropriate punishment for a crime should be. In a
23 national context, the state has a particular interest in
24 trying to achieve the rehabilitation of its citizens who
25 have fallen foul of the law. I am going on to my
1 submission as opposed to what your Honours say. This is
2 so because there is a particular need to facilitate the
3 smooth running of society. Accordingly, when the
4 paramount interest, having regard to a particular
5 criminal and his crimes, is the protection of society,
6 the death penalty might be imposed, should it be
7 available. If protection of society is not of such
8 importance, then rehabilitation of the individual may
9 play a more important role.
10 In the former Yugoslavia, the principle of
11 sentencing that seems to have prevailed was that if the
12 only consideration was to protect society from the
13 criminal, then the death sentence when the death
14 sentence was available was the appropriate sentencing
15 disposition, but if this was not the case, then life
16 imprisonment was not considered conducive to
17 rehabilitation, so the 15 year maximum sentence was
18 devised. Any sentence for longer than 15 years was
19 considered to be inhumane. However, after the abolition
20 of the death penalty, provision was made for a 20 year
21 sentence. As we have heard in evidence today, your
22 Honours, the position seems to be in a statement of
23 flux, moving from the period when the death penalty was
24 in operation to something else, but we don't know what
25 that is.
1 One must also consider that the sentencing
2 practices, the penal systems and conditions of
3 confinement are developed and implemented pursuant to
4 that particular society's norms and values, and one
5 cannot automatically, in our submission, transpose those
6 to the International Tribunal, whose obligation is to
7 enforce the values, norms and expectations of the wider
8 international community.
9 When it comes to devising an appropriate sentence
10 and policy for this Tribunal, in our submission
11 rehabilitation would seem to be the least appropriate
12 aim of any sentencing policy. The Tribunal cannot
13 adequately supervise or devise suitable rehabilitative
14 programmes for persons that it imprisons, nor is it
15 reasonable if such programmes were devised to impose any
16 such programmes on a state good enough to offer its
17 prison facilities for the purposes of imprisoning
18 convicted persons. That is not to say that convicted
19 persons by this Tribunal will not ultimately be
20 rehabilitated. Clearly we all hope that this will be
21 so, but our submission is it clearly should form no part
22 or no significant part of the sentencing regime the
23 Tribunal adopts.
24 While there are no doubt other sentencing
25 objectives that may appropriately play a role, clearly
1 in our submission the dominant centre piece of any
2 sentencing policy devised by this Tribunal should be the
3 principle that criminologists refer to as the principle
4 of "just desserts", punishment. It seems to us that if
5 one of the primary functions of this Tribunal is to
6 contribute to a restoration of true peace in the former
7 Yugoslavia, and the re-establishment of their fractured
8 society, then this will not be achieved, in our
9 submission, if the Tribunal concerns itself with the
10 speculative concept of the rehabilitative needs of the
11 individual perpetrators and pays insufficient regard to
12 the need to ensure that those responsible for these
13 heinous crimes are brought to justice and dealt with
14 according to law.
15 In our respectful submission, the most effective
16 way in which this can be assured in relation to the
17 convicted person Tadic is to impose upon him a life
18 sentence of imprisonment. They are our submissions,
19 your Honour.
20 JUDGE McDONALD: Thank you, Mr. Niemann.
21 JUDGE STEPHEN: Mr. Niemann, I have two questions. The
22 first one stems really from your suggestion that life
23 imprisonment was appropriate in relation to paragraph 1,
25 MR. NIEMANN: Yes, your Honour.
1 JUDGE STEPHEN: You then went on to say that there should
2 be remissions granted similarly to those remissions that
3 are granted to other prisoners in the particular jail
4 system in which the accused found himself.
5 MR. NIEMANN: Yes, your Honour.
6 JUDGE STEPHEN: How do you work that out? Remission may be
7 of one-third of the sentence or so many years. How does
8 that accord with a life sentence? Obviously you can't
9 have a proportion of it remitted.
10 MR. NIEMANN: Yes, your Honour. Your Honour, in some
11 jurisdictions now, as your Honour is probably aware,
12 there is the traditional life sentence, where someone
13 serves it for life.
14 JUDGE STEPHEN: It means much less.
15 MR. NIEMANN: It means nothing like that any more. It means
16 you serve a period of time and after a period of time
17 you are entitled to a remission. Generally speaking --
18 I mean, we have not done a complete survey, but in a
19 number of jurisdictions it can mean something like 15
20 years and less, but if, for example, a person is
21 convicted -- sentenced to 15 years and at the same time
22 earns remissions, well, that might mean ten years or
23 nine years or something like that, if remissions apply.
24 The only submission that we can make in this, because we
25 have no idea where the accused person will be sent, is
1 that if he is in an institution where the prisoners
2 beside him are earning remissions of their sentence for
3 their life sentence or whatever is equivalent in that
4 jurisdiction, then our submission is that in this case,
5 and we are not suggesting that it's something that
6 should universally apply, but in this case we say that
7 this particular convicted person should enjoy the
8 benefit of remissions that his co-fellow prisoners would
9 be earning, other than him go there and to be alongside
10 prisoners convicted of life imprisonment and for him not
11 to earn remissions.
12 JUDGE STEPHEN: Yes, although the imprisonment for life,
13 you suggest that we should impose what it means,
14 I gather.
15 MR. NIEMANN: No, I am not asking your Honour to do that in
16 the sense that we are saying if remissions are available
17 to this accused per force of the fact that he goes to an
18 institution where remissions are earned, and in most
19 institutions that is certainly becoming the norm, then
20 we are saying that the Chamber may care to recommend
21 that he should earn remissions.
22 JUDGE STEPHEN: Yes. My point, I think, is this: he may
23 well be in a system which regards life as meaning 12
24 years or 15 years, whereas the sentence that you are
25 suggesting we should impose would mean for the term of
1 his natural life. The two are not comparable. I don't
2 see how you can work in a remission system applicable to
3 life meaning 12 or 15 years to a term of natural life
5 JUDGE McDONALD: Let me just add a little bit to that,
6 maybe perhaps a little complexity. The Tribunal
7 presently has agreements only with two countries, Italy
8 and Finland, I believe, that will accept persons that
9 are convicted by the Tribunal and the agreement, of
10 course, speaks for itself, but there are certain
11 limitations that the Tribunal has attempted to impose,
12 but there are certain limitations that we cannot
13 impose. So we need to keep that in mind in terms of any
14 recommendation that we may make, because the agreement
15 itself I would imagine would have to be complied with,
16 and if any recommendation that we make would be contrary
17 to that, there would be a problem. With respect to
18 remissions, though, if, for example -- you use the term
19 "remission". In my system we don't usually use the
20 word "remission". We think of that as something the
21 court might do unilaterally and that is remit or lower
22 the sentence. You are simply requesting we would
23 sentence to life imprisonment, and then the accused
24 would then serve in this instance either in Finland or
25 Italy, unless I'm not aware of another agreement, and
1 then if that state has a system of remitting or reducing
2 life imprisonment to 15 years, assuming good behaviour,
3 then you are suggesting that the same rule apply to
4 Mr. Tadic. Is that not so?
5 MR. NIEMANN: Yes, in that institution.
6 JUDGE McDONALD: All we would do would be sentence and then
7 the rules applicable in that institution would also
8 apply to Mr. Tadic.
9 MR. NIEMANN: That is what I am saying.
10 JUDGE McDONALD: The term remission is a little problematic
11 to me.
12 MR. NIEMANN: It may be a problematic term.
13 JUDGE STEPHEN: I still don't follow you. Take the case of
14 Finland. Assume life means 15 years. The sort of
15 remission I thought you were talking about was that
16 person so sentenced would probably not serve 15 years
17 because there would be remissions and they might only
18 serve seven years. Is it the reduction of our term of
19 natural life to 15 years you are talking about, or the
20 benefit of the further reduction that is granted to
21 those who have got a Finnish sentence of life, which
22 means 15, but, in fact, they get out after seven. They
23 are two differences.
24 MR. NIEMANN: I understand. In some jurisdictions your
25 Honour, what happens is the person is sentenced to life
1 imprisonment and then the court orders there be a
2 non-parole period, that the person serve a certain
3 number of years and there be no parole during that
4 period. That reduces it to an actual figure so that the
5 convicted person knows that after this period they will
6 get paroled. In addition to that -- in other
7 jurisdictions the court doesn't make such an order. It
8 simply imposes a period of life imprisonment and then
9 the local administrative prison authorities or justice
10 department or whatever then itself determines parole.
11 It interviews the prisoner and grants parole after a
12 certain period. That can also apply to life sentences
13 unless, of course, the court has made an order that he
14 is never to be paroled or released, whichever way the
15 court expresses itself. Now in addition to that
16 prisoners can have the sentence reduced by prison
17 authorities by remissions for good behaviour, so that
18 when a person is in prison there is an incentive, as it
19 were, for the prisoner to behave and to rehabilitate.
20 Now what we are saying is that we understand
21 there's no provision for your Honours to impose a
22 non-parole period, but if there is a regime in place at
23 that institution which would permit a reduction of the
24 sentence either by a combination of parole or just
25 straight out remissions, then we submit in this case,
1 and we are selective in this, that the accused person,
2 Tadic, should have the benefit of that, and we say it
3 for two reasons: one, because it is not the most
4 serious offending that is going to come before this
5 Tribunal, and we submit that this would be some
6 recognition of that, not moving away from the fact that
7 we submit that a sentence of life imprisonment is the
8 only appropriate sentencing disposition, but this would
9 give some measure of reduction of that, and in addition
10 to that, it is better for the convicted person in an
11 institution side by side with other prisoners who have
12 committed offences in that society to be on an equal
13 footing, to allow that person to have the sentence
14 reduced according to the regime that applies there. We
15 submit in relation to this convicted person, that is a
16 measure that is appropriate, having regard to his
18 Now whether it is achievable or whether the state
19 that takes the person is prepared to do that is another
20 question but it seems in our submission not
21 inappropriate to make a recommendation, if your Honours
22 are so disposed to do so.
23 JUDGE STEPHEN: Well, thank you. That was my first
24 question. I had a second one. I noticed that in
25 questioning the last witness and again in your oral
1 submissions you said that the -- it was after the
2 abolition of the death penalty in the former Yugoslavia
3 that the 20 year term was conceived as an alternative.
4 My understanding, I must say, was that the alternative
5 20 years long preceded the abolition of the death
6 penalty and went hand in hand with it at the time when
7 it existed. Is that not so?
8 MR. NIEMANN: I confess, your Honour, I am no expert in
9 their law but my understanding of the law was the 20
10 years was introduced as a late measure.
11 JUDGE STEPHEN: After the abolition.
12 MR. NIEMANN: Perhaps I might just ... would your Honours
13 excuse me a moment? (Pause.) I may well have misspoke,
14 your Honours, and for that I apologise. It appears
15 there was a period of time when both the 20 year period
16 and the death penalty were standing side by side. What
17 I cannot assist your Honours with at the moment but I
18 will endeavour to do so is when that came in and for
19 what period.
20 JUDGE STEPHEN: Those dates would be very useful to us.
21 Thank you.
22 MR. NIEMANN: Unless there are any other matters, your
23 Honours ...
24 JUDGE McDONALD: Mr. Vujin, would you like to begin your
25 submissions, please?
1 MR. VUJIN: Your Honour, considering the time -- I'm sorry.
2 Considering that it is ten minutes to the time envisaged
3 for adjournment and in view of the fact that the Defence
4 could use some consultations, we would beg to have the
5 opportunity to begin our statement tomorrow. We believe
6 there will be enough time for us to complete it.
7 JUDGE McDONALD: Every day we have been together, Mr. Vujin,
8 you have asked for us to adjourn early. If we were in a
9 trial that lasted seven months, I suppose if you added
10 up all of that time, it might last for several weeks
11 that we would lose but we are not in that situation.
12 MR. VUJIN: It was not so much on our account.
13 JUDGE McDONALD: We are not in that situation and we are
14 trying to be flexible. So we will adjourn and resume
15 tomorrow at 2.30 with the Defence submissions.
16 (5.20 pm)
17 (Hearing adjourned until tomorrow afternoon at 2.30 pm)