1 Monday, 30th August, 1999
2 [Open session]
3 [The appellant entered court]
4 --- Upon commencing at 2.20 p.m.
5 JUDGE SHAHABUDDEEN: Mr. Registrar, will you
6 please call the case?
7 THE REGISTRAR: Case number IT-94-1-A, the
8 Prosecutor versus Dusko Tadic.
9 JUDGE SHAHABUDDEEN: Before the proceedings
10 begin, I wish to apologise for the delay in calling the
11 court to order. This was due to the unfortunate
12 indisposition of a member of the Appeals Chamber, Judge
13 Wang, who is unable to sit today. Technically, we are
14 not properly constituted, I think, in his absence. I
15 think that will be appreciated. So what we propose to
16 do and to do only with your consent is this: We're
17 waiting this afternoon on a procedural exercise to
18 consider whether the sentencing phase should be
19 remitted to a Trial Chamber and, if so, which Trial
21 What I propose, and again only with your
22 consent, is that we hear the arguments, which I do not
23 believe will be extensive, it being understood that
24 these arguments will be considered by Judge Wang and
25 that no decision will be taken without his full
1 participation. In effect, when he rejoins the group,
2 the matter will be reconsidered afresh by the Appeals
3 Chamber in the light of any arguments you make which
4 will be on the transcript.
5 So the first thing is whether you would
6 consent to that. If you do, then I should pass on to
7 other matters. At the moment, technically, the bench
8 is not properly constituted.
9 MR. YAPA: For the Prosecution, Your Honours,
10 we have no objection to Your Honours proceeding with
11 the matter.
12 MR. CLEGG: Your Honour, I'm sure I speak on
13 behalf of all counsel when we say that we hope Judge
14 Wang is soon restored to full health. We have no
15 objection to proceeding in his absence.
16 It did occur to us that there may be
17 provision for this in the rules as amended. Rule 15(E)
18 as amended does deal with the question of the illness
19 of a judge, and it there says that the President may
20 authorise a Chamber to conduct routine matters in the
21 absence of one or more of its members. We would have
22 submitted that the proceedings today are only a routine
23 matter in deciding the forum for the sentencing
24 hearing, and if our reading of Rule 15(E) is correct,
25 there may technically be a need for the authorisation
1 of the President. But if that were forthcoming, then
2 it's our submission that the four judges who are
3 sitting today could proceed to make a decision in
4 relation to the sentencing forum, and we would invite
5 the Appeals Chamber to proceed, if it thinks that my
6 reading of the rules is right, to make a decision today
7 without Judge Wang's participation.
8 If my reading of the rules does not find
9 favour with the Court, then I would be content with the
10 proposal that the Court has already made.
11 JUDGE SHAHABUDDEEN: Does the Prosecution
12 wish to make a contribution on that point?
13 MR. YAPA: Your Honours, our submission is
14 that with regard to the argument to be presented, it
15 could be presented before Your Honours as constituted
16 at present, but on the question of the decision, I
17 would submit that the absent judge should also take
18 part in the decision making.
19 JUDGE SHAHABUDDEEN: Judge Wang ought to take
21 MR. YAPA: Yes.
22 JUDGE SHAHABUDDEEN: Thank you.
23 Mr. Clegg, the bench appreciates your
24 assistance. We had considered whether the hearing this
25 afternoon could be comprehended by the reference to
1 "routine matters". To say the least, we have doubts
2 as to whether a decision as to whether this Chamber has
3 competence or whether the competence resides with the
4 Trial Chamber is, properly speaking, a routine matter.
5 So what I propose is that we hear the arguments, as it
6 were, ad referendum to Judge Wang and that he
7 participates fully in the decision as to whether the
8 sentencing should be done by this Chamber or should be
9 done by a Trial Chamber.
10 I'm very sorry. I appreciate the convenience
11 of a certain point of view of going along the road
12 which you had indicated, but it appears to us that
13 there is no alternative.
14 MR. CLEGG: So be it. One cannot let
15 expediency override the rules of the Court, however
16 tempting it might be.
17 JUDGE SHAHABUDDEEN: On that basis, the case
18 has been called, and I take it that the appearances are
19 as before.
20 May I raise incidentally another matter? I
21 don't think, Mr. Clegg, you are in the contempt case,
22 are you?
23 MR. CLEGG: No.
24 JUDGE SHAHABUDDEEN: No. That's a problem.
25 MR. CLEGG: I have filed a motion in relation
1 to that and was going to seek to be heard, but I would
2 only advance that motion in the presence of Mr. Vujin
3 because it seems to me that he would obviously have a
4 right to be heard. Mr. Abell, I know, is in the
5 building because I physically saw him arrive just
6 before you sat.
7 JUDGE SHAHABUDDEEN: We would be glad if
8 Mr. Abell could present himself for a limited purpose
9 which is this, that we have the contempt case coming
10 on. We have spoken with the President. It will be
11 necessary in that case, we think, for a judge to be
12 appointed to the place of Judge Wang, but that could
13 only be done with the consent of the parties, we
14 think. So we would need Mr. Abell in court -- really,
15 we would need all the parties, but we can proceed with
16 the participation of Mr. Abell on the basis that when
17 the contempt case is called, we will represent the
18 matter to all parties and hear their views. So if you
19 are in a position to send for Mr. Abell, I would be
21 Do I take it that the Prosecution agrees that
22 in the contempt case, there could be a judge appointed
23 to the place of Judge Wang?
24 MR. YAPA: We do agree.
25 [Mr. Abell enters court]
1 JUDGE SHAHABUDDEEN: Mr. Abell, it was good
2 of you to make yourself available to us. We have an
3 unexpected conjuncture of circumstances this afternoon,
4 and the resolution of those circumstances will affect
5 the procedures relating to both the sentencing hearing
6 and the contempt case.
7 For reasons which may have already come to
8 your notice, it appears to us that Judge Wang will not
9 be able to participate in the contempt hearing. That
10 means that the bench would not be properly constituted,
11 unless we can have recourse to paragraph 5 of Rule 15
12 of the Rules which applied mutatis mutandis would
13 enable the President to assign another judge to the
14 case, but I think only with the consent of the
15 parties. All the parties are not here, but you are
16 here and the Prosecution is here, so we would like to
17 know from you whether you would be agreeable to a
18 replacement judge being appointed under that provision
19 in relation to the contempt matter.
20 MR. ABELL: I would appreciate, before making
21 any submissions on that, to have a brief opportunity to
22 take instructions from Mr. Tadic, the interested party
23 whom I represent.
24 JUDGE SHAHABUDDEEN: Indeed. I take it you
25 would in turn appreciate that we would like to lay
1 stress on the word "brief"?
2 MR. ABELL: Yes, I understand. May I say,
3 I'm sorry to hear about His Honour, Judge Wang.
4 JUDGE SHAHABUDDEEN: Indeed. Well,
5 Mr. Abell, you will proceed. Meanwhile, we will return
6 to the issue which brings us together this afternoon as
7 to whether the Appeals Chamber is a proper Chamber for
8 the purpose of sentencing or whether the matter should
9 be remitted to a Trial Chamber.
10 MR. ABELL: Your Honour, do forgive me for
11 rising again, but in order to take instructions from
12 Mr. Tadic, I will need briefly to retire with him in
13 order to speak with him. That may require a short
14 delay in the proceedings. I promise I will be brief,
15 but I believe I have to speak with him about the matter
17 JUDGE SHAHABUDDEEN: Do you visualise that
18 would involve an interruption in the proceedings
19 relating to the sentencing matter?
20 MR. ABELL: I don't know whether Mr. Tadic is
21 required for that. That's really a matter for my
22 learned friend, Mr. Clegg.
23 JUDGE SHAHABUDDEEN: I would like Mr. Clegg
24 to indicate whether we may proceed in the absence of
25 Mr. Tadic.
1 MR. CLEGG: I can see that Mr. Tadic is
2 indicating that he would prefer to be present. If I
3 could suggest that --
4 THE APPELLANT: No, no, no.
5 MR. CLEGG: I think I misinterpreted what
6 Mr. Tadic -- we can proceed in the absence of
7 Mr. Tadic.
8 JUDGE SHAHABUDDEEN: Mr. Abell, you may
9 retire with Mr. Tadic while we take up the sentencing
11 MR. ABELL: Your Honour, thank you very
12 much. I'm very grateful.
13 [The appellant withdrew]
14 JUDGE SHAHABUDDEEN: May I inquire as to
15 whether Mr. Vujin is in the precincts? Has anybody any
17 MR. CLEGG: We've not seen him, but he's
18 certainly been seen in the general area of the court
19 but not inside the precincts.
20 JUDGE SHAHABUDDEEN: We can make a start with
21 the arguments on the issue as to whether the Appeals
22 Chamber has competence in relation to sentencing or
23 whether that branch of the matter should be remitted to
24 a Trial Chamber and, if so, which Trial Chamber. We
25 issued a scheduling order last Friday in which we
1 allocated 30 minutes to each side for this purpose, and
2 I hope you find that adequate because you have already
3 had an opportunity to submit written arguments, and we
4 thought, looking at the character of the case, that it
5 would be appropriate for the Prosecution, I think, to
6 start and then for you, Mr. Clegg, to reply.
7 Is that agreeable? Is that agreeable to the
8 Prosecution as well?
9 MR. CLEGG: Certainly.
10 MR. KEEGAN: Yes.
11 MR. CLEGG: Yes, it's agreeable to the
13 JUDGE SHAHABUDDEEN: Then Mr. Prosecutor.
14 MR. KEEGAN: Thank you, Your Honour. The
15 Prosecution submits that a Trial Chamber composed of as
16 many members of the original Trial Chamber as is
17 possible is the most appropriate forum to deal at first
18 instance with the question of sentencing on Counts 8,
19 9, 12, 15, 21, 29, 30, 31, and 32.
20 There are two principal and related reasons
21 for this submission. The first, Your Honours, is that
22 the Tribunal Statute and Rules envisage that the
23 Tribunal's discretion with respect to sentencing of a
24 convicted person of any offence in the first instance
25 is to be exercised by the Trial Chamber, and I would
1 point to the submissions in our brief relating to
2 Articles 23, 24, and Rule 101 of the Rules of Procedure
3 and Evidence.
4 In comparison, there is no article in the
5 Statute that refers to the authority of the Appeals
6 Chamber to impose a sentence. In exercising its
7 authority in this area, the Appeals Chamber is, in
8 fact, bound by the provision of Article 25 of the
9 Tribunal Statute which delineate the authority of the
10 Appeals Chamber in considering judgements of a Trial
11 Chamber on appeal.
12 Article 25(ii) states that an Appeals Chamber
13 may affirm, reverse or revise the decisions of a Trial
15 As interpreted by the Rules of Procedure and
16 Evidence, however, the authority granted in Article 25
17 also empowers the Appeals Chamber to determine and
18 impose sentences.
19 Rule 107, notably, states that the Rules of
20 Procedure and Evidence that are applicable to the Trial
21 Chambers apply mutatis mutandis to the Appeals Chamber
22 during the consideration of an appeal. That would
23 include, of course, Rule 101 dealing with sentences.
24 In addition, Rule 118(A) states that a
25 sentence --
1 THE INTERPRETER: Can counsel please slow
3 MR. KEEGAN: -- enforced immediately. Thus,
4 while it is clear that the Appeals Chamber does possess
5 the authority to impose sentences, the question raised
6 is whether it is appropriate to exercise that authority
7 in such cases as the present one, where the assessment
8 of a new sentence arises solely from new or additional
9 convictions based upon the reversal of a Trial
10 Chamber's verdict by the Appeals Chamber.
11 Under the Rules, there are at least three
12 instances in which an Appeals Chamber may be called
13 upon to impose a sentence, in our submission. The
14 first instance is the one which the Appeals Chamber is
15 now considering, whereas the result of an appeal of a
16 judgement of a Trial Chamber, the Appeals Chamber has
17 found the person guilty of new or additional charges.
18 The second instance is where there has been
19 an appeal on the sentence imposed by a Trial Chamber
20 and the Appeals Chamber has found that the Trial
21 Chamber committed an error of law or abused its
23 The third instance is where the Appeals
24 Chamber has found a person in contempt pursuant to Rule
1 The Prosecution submits it would be generally
2 appropriate for the Appeals Chamber to determine and
3 impose a sentence in both the second and third
4 instances. When the Appeals Chamber has found someone
5 in contempt, pursuant to Rule 77, the Appeals Chamber,
6 as the finder of fact, would be the most appropriate
7 body to impose the sentence since it would have direct
8 knowledge of all the relevant factors.
9 Similarly, where an appeal is brought
10 alleging that a Trial Chamber abused its discretion in
11 imposing a sentence, it might also be appropriate for
12 the Appeals Chamber to impose a revised sentence if it
13 determined that it had cognizance of all the relevant
14 factors involved in the sentence.
15 That may not be the case, however, where an
16 appeal from a sentence is based upon a submission that
17 the Trial Chamber wrongly excluded certain evidence or
18 considered evidence that should have been excluded, and
19 that determination, which calls for, in essence, a
20 determination in the first instance of a new sentence,
21 it might be more appropriate for the Appeals Chamber to
22 return the case to the Trial Chamber for a
23 reconsideration of sentence with instructions on the
24 evidence to be considered.
25 The Prosecution submits that it is these
1 instances that Rule 118(A) was intended to apply.
2 Where the Appeals Chamber pronounces new or
3 additional findings of guilt, as it did in this case,
4 it does so as a direct result of a revision of a
5 verdict by a Trial Chamber.
6 In this case, the decision to reverse the
7 Trial Chamber's verdict was based solely upon an
8 analysis of the Trial Chamber's legal reasoning and a
9 determination by the Appeals Chamber that the Trial
10 Chamber committed an error. It is significant that in
11 reversing the Trial Chamber, the Appeals Chamber here
12 did not question the underlying factual findings of the
13 Trial Chamber or render any additional factual findings
14 of its own. Rather, the reversal of the Trial Chamber
15 was based solely on an analysis of issues of law.
16 As a consequence, the imposition of a
17 sentence based under these circumstances is not a mere
18 revision after decision by the Trial Chamber, it is a
19 de novo determination of a sentence.
20 To undertake the determination of an
21 appropriate sentence in the present case, the
22 sentencing authority must consider all the relevant
23 evidence and determine what aggravating and mitigating
24 factors are present. That fact raises the issue of
25 whether the interests of justice and the rights of the
1 convicted person are not better served by having the
2 trier of fact determine the appropriate sentence.
3 The Trial Chamber was the trier of fact, with
4 direct knowledge of the evidence in the case and direct
5 observation of the witnesses and victims. Members of
6 the Trial Chamber also have the benefit of their full
7 reasoning and determination with respect to the case
8 and the original sentence imposed.
9 Conversely, should the Appeals Chamber
10 determine that it will impose the sentence under these
11 circumstances, it will, presumably, have to go back and
12 review all the evidence related to the circumstances of
13 the killings involved, for example, and the context in
14 which they were committed.
15 Moreover, the sentencing authority at the
16 Tribunal does not enjoy the same advantages of courts
17 that have authority to impose sentences in national
18 jurisdictions. Those courts have the benefit of
19 statutory provisions that establish the accepted range
20 of punishments with particularity and, or in addition,
21 they also have the benefit of a substantial amount of
22 prior jurisprudence which provides clear guidance as to
23 the appropriate sentences for various crimes.
24 Due to the unique jurisdiction of the
25 Tribunal, however, there is little in this manner to
1 guide the Chambers in determining an appropriate
3 JUDGE SHAHABUDDEEN: Mr. Keegan, would you
4 pause a minute to allow Mr. Tadic to return?
5 [The appellant entered court]
6 JUDGE SHAHABUDDEEN: Please proceed.
7 MR. KEEGAN: Thank you, Your Honour.
8 Consequently, due to the lack of prior jurisprudence
9 and statutory provisions assisting the sentencing
10 authorities at the Tribunal, there must be an even
11 greater emphasis placed upon the particular
12 circumstances in each case and an analysis of the
13 factors set forth in Article 24(ii) and Rule 101.
14 It is the Trial Chamber that is in the best
15 position to give full effect to those issues, whereas
16 the Appeals Chamber has had no opportunity to view the
17 witnesses and victims or give consideration to the
18 other factors.
19 The second and related reason why it is more
20 appropriate for the Trial Chamber to deal at first
21 instance with the question of sentencing on these
22 additional convictions is that this would afford the
23 convicted person a possibility to appeal against the
24 sentence on those counts. Consistent with Article 14
25 of the ICCPR, the Statute of the Tribunal, and within
1 the unique jurisdiction and structure of this Tribunal,
2 a right of appeal should be afforded at the appropriate
3 junctures where the material rights of a party is
4 affected by a decision.
5 For these reasons, Your Honours, the
6 Prosecution submits that the appropriate course in this
7 case is to remit the matter of sentencing to the
8 original Trial Chamber if possible or, in the
9 alternative, a Trial Chamber composed of as many
10 members of the original Trial Chamber as is possible.
11 Thank you.
12 JUDGE SHAHABUDDEEN: Perhaps this is an
13 appropriate stage to ask Mr. Abell to take the floor.
14 MR. ABELL: Your Honour, may I thank you very
15 much for the time you were kind enough to allow me to
16 take instructions from the interested party, Dusko
18 The position is this: We do consent to the
19 proceedings going ahead under the provision that Your
20 Honour was kind enough to point out to me. May I say
21 this, though? Under that particular section, it would
22 appear that the person who has to consent is the
23 accused, and Dusko Tadic is an interested party in the
24 contempt proceedings. It would appear that the person
25 whose consent is required is Milan Vujin, who is the
1 accused for the purposes of these contempt
2 proceedings. But, as I say, Mr. Tadic, if his consent
3 is required, does consent and is willing for the matter
4 to continue with a substitute judge. I take it that
5 that substitute judge will have an opportunity to
6 obviously consider the transcripts which have thus far
7 been generated?
8 JUDGE SHAHABUDDEEN: Mr. Abell, thank you
9 very much. A substitute judge will have that
10 opportunity, and you are quite right in saying that
11 Mr. Vujin's consent will be necessary. I do not think
12 you were present in the Chamber at an earlier stage
13 when I said something to the effect that on the
14 contempt case being called, we would have to return to
15 the other interested parties. I think I said that. We
16 didn't feel, like you, that we would be on safe ground
17 in proceeding solely on the basis of your own consent.
18 So we are ad idem on that. Thank you very much.
19 In fact, our procedures this afternoon are
20 somewhat unorthodox, as, indeed, is the constitution of
21 the bench itself. We did put out a call for Mr. Vujin,
22 seeking to discover whether he was available in the
23 precincts. If he was, we would ask him now whether he
24 also would consent. So your point has fully been taken
25 on board.
1 MR. ABELL: I'm grateful for that. Thank
2 you, Your Honour.
3 JUDGE SHAHABUDDEEN: Mr. Clegg, would it be
4 convenient for you?
5 MR. CLEGG: Certainly.
6 JUDGE SHAHABUDDEEN: Thank you.
7 MR. CLEGG: I confess for the second time in
8 one afternoon, expediency and the desire for --
9 JUDGE SHAHABUDDEEN: Mr. Abell, if you would
10 like to retire at this point, we would be fully
12 MR. ABELL: Of course. I had wondered
13 whether I should actually remain. I will retire
15 JUDGE SHAHABUDDEEN: Yes. Thank you.
16 Yes, Mr. Clegg?
17 MR. CLEGG: My initial thoughts were
18 reflected in paragraph 12 of the brief submitted on the
19 29th of July of this year which encouraged the Appeals
20 Chamber to deal with the question of resentencing.
21 That was before I had sight of the Prosecution brief
22 and before I had the opportunity of hearing the
23 submissions of Mr. Keegan.
24 Since reading the brief of the Prosecution, I
25 have reflected on the proper way to proceed, and I am
1 satisfied that my original submissions were wrong and
2 that the Prosecution's approach is, in fact, the
3 correct approach. It was, I think, frankly a desire
4 for expediency that persuaded me to urge the Appeals
5 Chamber to determine the sentence for these offences
6 that the appellant now stands convicted of for the
7 first time, but for the second time today, I am forced
8 to say that expediency is no substitute for proceeding
9 in the proper way. I, frankly, am now convinced that
10 the Prosecution's submissions are well-founded, and in
11 those circumstances, we support them.
12 My reasons are, firstly, that upon a proper
13 analysis, we accept that the Statute and Rules clearly
14 envisage that sentencing for offences should be done at
15 the Trial Chamber level. Secondly, that preserves the
16 appellant's right of appeal that would otherwise be
17 lost, and I accept the submissions contained in
18 paragraph 9 of the Prosecution's brief so far as that
19 is concerned.
20 Therefore, we find ourselves agreeing with
21 the Prosecution and, like them, submit that the Trial
22 Chamber which deals with the question of sentence
23 should ideally be comprised of the same three judges
24 that heard the trial itself. We are, of course, all
25 conscious of the position of Judge Stephen.
1 Recognising that difficulty, we would say that it is
2 preferable that the remaining two judges of the
3 original Trial Chamber should sit in the reconvened
4 Trial Chamber for sentence, although that's not
5 strictly essential under the Rules, but we would submit
6 it's highly desirable that the other two judges do
8 I've reflected on what the Appeals Chamber
9 should do in relation to the appeal against sentence
10 that, of course, is pending in relation to the
11 remaining counts. We would urge the Appeals Chamber to
12 adjourn that appeal against sentence on the remaining
13 counts until after the Trial Chamber sentences on the
14 fresh offences, and we would then envisage the Appeals
15 Chamber dealing with one consolidated appeal against
16 sentence, embracing the sentence passed by the original
17 Trial Chamber which is the subject of appeal, and if
18 it's to be the subject of appeal, and one knows not
19 what the Trial Chamber will do on the new convictions,
20 but if that were to be the subject of a separate
21 appeal, then we would anticipate this Appeals Chamber
22 hearing a consolidated appeal dealing with all matters
24 If the Appeals Chamber were attracted to that
25 suggestion, then we would hope that the Trial Chamber
1 could be convened for this very limited purpose within
2 a very short time scale, and we would hope, at any
3 rate, that the matter could be dealt with with
4 reasonable expedition.
5 Unless I can assist the Appeals Chamber any
6 more, those are our submissions. The bad lawyer
7 doesn't sometimes recognise that he's made a bad point,
8 and I think, on reflection, our original position was
9 erroneous, and we recognise that error.
10 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.
11 The strength of a lawyer is the ability of the
12 practitioner to revise his earlier thinking. So I do
13 not think the bench would be disposed to find any fault
14 with you for simply changing your opinion in the light
15 of the opinion expressed by your colleagues on the
16 other side.
17 What I'd like to say to you, and for the
18 record, is that this is a point which occurred to the
19 bench. The bench has no position on it, but it
20 considered that it would be wise to take counsel with
21 both sides, and that is what we are doing today.
22 The Prosecution has not had an opportunity to
23 address the point which you made latterly to the
24 effect, I think, that the decision on the sentencing
25 appeal might be adjourned pending a determination by
1 the Trial Chamber of the question of what sentences
2 should be passed in relation to these counts on which
3 the Appeals Chamber has held Mr. Tadic to be guilty but
4 in respect of which he was acquitted earlier on. So
5 perhaps I might invite the Prosecution to respond to
6 that point. Thank you very much.
7 MR. KEEGAN: Your Honour, if we could, could
8 we beg just a moment to confer?
9 JUDGE SHAHABUDDEEN: Yes.
10 MR. KEEGAN: Thank you.
11 [Prosecution confers]
12 MR. KEEGAN: Thank you, Your Honours, for
13 your indulgence.
14 It would be the submission of the
15 Prosecution, Your Honours, that, in fact, it would be
16 preferable to proceed with the appeal on sentencing as
17 currently fashioned by the appellant, that within that
18 appeal, there are a number of issues that may or may
19 not be applicable to any resentencing on these distinct
20 counts, but more particularly, it seems to us then the
21 Trial Chamber would have the benefit of the guidance
22 from the Appeals Chamber on the sentencing issues
23 already raised in fashioning an appropriate sentence on
24 these additional convictions, such that it may, in
25 fact, avoid any potential error, assuming that the
1 Appeals Chamber found that there was some in the first
2 instance, with respect to these later counts, and,
3 therefore, it would probably minimise to a great extent
4 any potential issues for appeal. If there was a second
5 appeal, it would only be limited -- it would be limited
6 to just those discrete counts for which the additional
7 sentence was imposed.
8 Thank you.
9 JUDGE SHAHABUDDEEN: So your submission,
10 Mr. Keegan, is that if the Appeals Chamber were to
11 remand the matter for sentences to be passed by a Trial
12 Chamber, that that should not prevent the Appeals
13 Chamber from now deciding on the sentencing appeal
14 which has not yet been concluded. Is that your
16 MR. KEEGAN: That's correct, Your Honour.
17 JUDGE SHAHABUDDEEN: Then would that
18 necessitate a modest revision of the position the
19 Appeals Chamber took on 15 July? I think the Appeals
20 Chamber then visualised that there would be a
21 sentencing hearing on the counts on which Mr. Tadic was
22 acquitted but which he has been found guilty by the
23 Appeals Chamber, and that when sentences were passed on
24 these counts, then at the same time, there would be a
25 determination of the outstanding appeal relating to
1 sentencing. On this format under which the matter
2 would be remitted to a Trial Chamber, the Appeals
3 Chamber would not be, in fact, sentencing anyone. So
4 there would be a discrepancy there between the new
5 position and the old position.
6 Would we have to say that we are revising the
7 decision of 15 July to mean this: that we would now
8 determine the sentencing appeal at the same time at
9 which a determination is made to remit the matter to a
10 Trial Chamber? Is that a little too complex?
11 MR. KEEGAN: No, Your Honour. Just one
12 moment, please.
13 [Prosecution confers]
14 MR. KEEGAN: Thank you, Your Honour. Yes,
15 Your Honour, if, in fact, the 15 July submission was
16 based on the premise, which certainly we believed it
17 was, that the Appeals Chamber would be imposing a
18 sentence, then, yes, that would be correct; however,
19 if, in fact, the position now is that the submissions
20 on sentencing would be remitted back to a Trial
21 Chamber, then, in fact, the situation is one of a
22 clarification, and along the lines of our submissions
23 with respect to the existing appeal on sentence, it
24 would be the remission back to the Trial Chamber with
25 instructions that a decision on the sentencing appeal
1 as currently lodged would be following.
2 In that situation, the Trial Chamber then has
3 the benefit of the Appeals Chamber's guidance on the
4 sentencing issues already raised at the time they
5 decide on an appropriate sentence for the additional
6 counts. That seems to us to affect the matter of
7 efficiency and also perhaps solve potential
8 difficulties for the Trial Chamber.
9 JUDGE SHAHABUDDEEN: Mr. Keegan, I wish to be
10 clear. No doubt you were, but I didn't follow you
11 exactly. You see, on the 15th of July, the Chamber
12 said words to the effect that the outstanding
13 sentencing appeal would be determined at the time when
14 the Appeals Chamber would be imposing sentences in
15 respect of the counts on which the Appeals Chamber has
16 recorded convictions where there were previous
18 If the option were used of remitting
19 sentencing to a Trial Chamber, that 15th of July
20 decision would be inoperative. It would become
21 difficult to apply. Would it then be necessary for the
22 Appeals Chamber to revise that 15th of July decision to
23 say that the sentencing appeal would now be determined
24 at the same time when a decision is taken to remit the
25 matter to the Trial Chamber in relation to the offences
1 in respect of which the Appeals Chamber has now
2 recorded convictions where there were acquittals
4 MR. KEEGAN: Yes, Your Honour.
5 JUDGE SHAHABUDDEEN: Yes.
6 MR. KEEGAN: The other option would be that
7 the Appeals Chamber, in its order remitting the matter
8 back, advises the Trial Chamber that it will decide the
9 existing sentencing appeal as soon as possible or
10 immediately so that the Trial Chamber has the benefit
11 of that decision before it imposes additional sentences
12 for the additional convictions.
13 JUDGE SHAHABUDDEEN: Then you're proposing a
14 three-stage scenario like this: (1) The Appeals
15 Chamber remits the matter to a Trial Chamber.
16 (2) Thereafter, the Appeals Chamber decides on the
17 outstanding appeal. (3) Thereafter, the Trial Chamber,
18 in light of that intervening decision, then passes
19 sentence. Is that the scenario you're painting for
21 MR. KEEGAN: Yes, Your Honour.
22 JUDGE SHAHABUDDEEN: Very well. Thank you.
23 Thank you.
24 Mr. Clegg, do you follow what your colleague
25 is saying?
1 MR. CLEGG: Yes. I don't agree with it but I
2 follow it. It seems to me that it's making very hard
3 work of what I hoped would be a comparatively simple
5 On the 15th of July -- I've just got the
6 transcript in front of me -- what the Court said was
7 that the appellant's appeal against sentencing
8 judgement will be determined when a decision is made as
9 to sentencing on those counts.
10 So the Appeals Chamber clearly never
11 envisaged the concept of deciding the appeal against
12 the sentences that had been passed before anyone knew
13 what the sentence was in relation to the other counts.
14 It's a fundamental principle of the Appeals Chamber's
15 function in determining an appeal against sentence, the
16 concept of the totality of that sentence and whether
17 the total sentence is right and proper, bearing in mind
18 the offences for which the defendant or appellant has
19 been convicted.
20 Here, if the Appeals Chamber hears the
21 sentencing on the counts that he has currently been
22 sentenced on, the Appeals Chamber will effectively have
23 to approach the appeal with blinkers and pretend he
24 hasn't been convicted of the other offences at all
25 because there's no sentence passed, and you can't
1 consider, in deciding whether the current sentences
2 were appropriate and the totality of that sentence was
3 right, what may or may not be the sentence in relation
4 to offences which he's never been sentenced for at
5 all. Then you have the prospect of a further appeal on
6 the other half, as it were.
7 It's a piecemeal way of doing the -- of doing
8 justice and, we would submit, an untidy way. There's a
9 simple solution: It's remitted to the Trial Chamber.
10 Hopefully it can be performed as speedily as possible.
11 There will be a short sentencing hearing there, I can't
12 imagine it would last more than an hour if briefs are
13 filed by both sides, and then this Appeals Chamber can
14 reconvene soon afterwards and hear the appeal as one
15 consolidated appeal and decide the whole thing in the
16 round. We would submit that has the attraction of
17 implicitly, speed, and reduces the number of hearings
18 by two, I think.
19 JUDGE SHAHABUDDEEN: What you're saying then
20 is the 15th of July decision sensibly, if I may say,
21 assumed the Appeals Chamber would be taking an
22 integrated approach to the matter of sentencing and
23 would be viewing the affair in its entirety, but that
24 that block approach would now be fragmented if another
25 solution were employed.
1 MR. CLEGG: Yes.
2 JUDGE SHAHABUDDEEN: But not if your
3 proposition were adopted, your proposal being that the
4 decision on the sentencing appeal should be adjourned
5 and resumed sometime after the Trial Chamber would have
6 determined what are the sentences on the counts in
7 question. Is that --
8 MR. CLEGG: Yes.
9 JUDGE SHAHABUDDEEN: Well, thank you very
10 much. Thank you.
11 Mr. Keegan, you would like to say something?
12 MR. KEEGAN: Yes, Your Honour. Just
13 briefly. We believe that the 15 July decision was
14 valid as an expeditious mechanism if, in fact, the
15 Appeals Chamber, as you stated, was going to consider
16 it. In this situation, if it is going to be remitted
17 back to the Trial Chamber, it perhaps is not such an
18 easy issue, and while simplicity is always preferable
19 in language, it may not be so preferable in procedures
20 of criminal law.
21 We are a new jurisdiction. It would seem to
22 us that the appeal here on sentencing would not have to
23 be decided with blinkers. It would be decided on
24 matters of law, the questions of law raised by the
25 appellant. Those matters could be decided irrespective
1 of the fact that the Trial Chamber still has to decide
2 on additional sentencing. In fact, the benefit of such
3 a decision would be to provide guidance to the Trial
4 Chamber in its final analysis on additional
6 So while we appreciate that it may not appear
7 at first glance to be the most efficient mechanism, it
8 may, in fact, be the most preferable.
9 JUDGE SHAHABUDDEEN: Mr. Keegan, while you're
10 on your legs, could you answer me one small question?
11 Within your experience and learning, is there any
12 precedent in any system of law for saying that a court
13 is competent to convict but not competent to impose
14 sentence in relation to that conviction?
15 MR. KEEGAN: I am not aware of any system
16 where that is the case, Your Honour, nor, in fact, is
17 it our submission here. Our argument is not that the
18 Appeals Chamber was not competent to impose sentence,
19 the issue was whether it was the most appropriate
20 course in this circumstance. And that is the substance
21 of our argument, that it is more appropriate, given
22 these circumstances, to allow the Trial Chamber to do
24 JUDGE SHAHABUDDEEN: Well, the word
25 "appropriate" is quite useful but sometimes a little
1 dangerous. You have to find that we have another kind
2 of competence, that we have a competence to remit to a
3 Trial Chamber that the convicting court has the
4 competence to remit to another court to do the
5 sentencing. Have you applied your mind to do that?
6 MR. KEEGAN: Yes, Your Honour, to the extent
7 that we find that it falls within the inherent power of
8 a Trial Chamber under Article 25, given the authority
9 to the Appeals Chamber to reverse, revise a decision.
10 It seems to fall within the inherent powers of an
11 Appeals Chamber in all jurisdictions to then remand
12 back to a finder of fact the case with the appropriate
14 JUDGE SHAHABUDDEEN: You refer to
15 Rule 118(A).
16 MR. CLEGG: Yes, Your Honour.
17 JUDGE SHAHABUDDEEN: I'd like the benefit of
18 your interpretation of (B).
19 MR. KEEGAN: Yes, Your Honour. As indicated
20 in our submissions, again it is clear from the Rules of
21 Procedure and Evidence that the Appeals Chamber has the
22 authority to impose sentence, and we outlined what we
23 thought were the three apparent situations in which an
24 Appeals Chamber could impose sentence, including the
25 present case, but it was our submission that in
1 drafting the Rules or in looking at the spirit of the
2 Rules, as a total document it appears to us that it was
3 in the context of the two primary ways in which it
4 would be appropriate for an Appeals Chamber to impose a
5 sentence, that it was in those circumstances that Rule
6 118(A) was intended to apply.
7 JUDGE SHAHABUDDEEN: Would you say that the
8 word "judgement" in (B) includes sentence when read in
9 the light of (A)?
10 MR. KEEGAN: It is not apparent from the face
11 of it, Your Honour, for two reasons. One, it talks of
12 either as having been acquitted on all charges or as a
13 result of an order pursuant to Rule 65 which deals with
14 provisional release.
15 So, in fact, on its face it would appear that
16 it is not speaking of a situation of sentence but is,
17 in fact, only talking about those two particular cases,
18 either acquittal or Rule 65 determination.
19 JUDGE SHAHABUDDEEN: I see. I see. Thank
20 you. You have looked at the Seventh Protocol to the
21 European Convention on Human Rights --
22 MR. KEEGAN: I confess I don't have it with
23 me, Your Honour. I'd have to --
24 JUDGE SHAHABUDDEEN: -- which accepts
25 cases -- I think Article 2 accepts cases in which a
1 conviction is recorded by a Court of Appeal in lieu of
2 a previous acquittal by a first instance Court. You
3 have not had occasion to address your mind to the
4 implications of that provision?
5 MR. KEEGAN: No, Your Honour. I confess I
6 have not.
7 JUDGE SHAHABUDDEEN: Thank you very much.
8 Thank you.
9 Mr. Clegg, is there anything you would need
10 to add?
11 MR. CLEGG: Only in answer to the question
12 posed by the bench as to what other jurisdiction. As
13 one finds the court that quashes an acquittal and
14 replaces it with a conviction, remit for sentence, and
15 one illustration is the Divisional Court of the Queen's
16 Bench Division in England, referred to in the
17 declaration by Judge Nieto-Navia in the judgement of
18 this appeal, on page 147, at paragraph 4, where an
19 acquittal by the Magistrate's Court is reversed by the
20 Queen's Bench Division in England, then it will
21 normally, if not invariably, remit to the Magistrate's
22 Court for sentence. That is an illustration, I think,
23 of what the court is seeking.
24 JUDGE SHAHABUDDEEN: Thank you, and that is
25 very helpful indeed. Thank you very much. Well, may I
1 consult with my colleagues for a moment?
2 [Trial Chamber confers]
3 JUDGE SHAHABUDDEEN: Now, it remains for me
4 to express the indebtedness of the bench, to counsel on
5 both sides for the assistance they have rendered to the
6 Court. The predicament in which the bench is faced is
7 manifest to learned counsel. We propose this: That
8 the proceedings would be made available to Judge Wang.
9 We would discuss fully with him and a decision would be
10 taken, and we would, by an appropriate notification,
11 either reassemble the court for delivery of the
12 judgement, or we would deliver the judgement in writing
13 without any necessity to trouble the parties to come to
14 court again.
15 Is that an agreeable procedure, do you
17 MR. CLEGG: It's certainly agreeable to the
19 JUDGE SHAHABUDDEEN: Mr. Prosecutor?
20 MR. YAPA: Yes.
21 JUDGE SHAHABUDDEEN: Then we are through with
22 the discussions on the issue on which the bench desired
23 to have your assistance this afternoon.
24 --- Whereupon the hearing adjourned
25 at 3.20 p.m. sine die