Appeals Chamber

The Prosecutor v. Dusko Tadic - Case No. IT-94-1-Abis

"Judgement in Sentencing Appeals"

26 January 2000
Judges Shahabuddeen [Presiding], Mumba, Cassese, Wang and Nieto-Navia

Articles 3, 5, 8, 24 and 25 of the Statute and Rules 101 of the Rules of Procedure and Evidence - credit for time served; minimum sentence; starting point for the minimum sentence; right of appeal; fair sentencing; discretionary powers of the Tribunal with regard to sentence; relative seriousness of crimes against humanity and war crimes.
1) The discretion of a Trial Chamber to impose a minimum sentence is limited by the requirement of fundamental fairness and the right to appeal of the accused.
2) Sentences must properly reflect the relative position of the accused in the hierarchy and his or her role in the criminal events.
3) There is no distinction between the relative seriousness of crimes against humanity and war crimes. Consequently, all things being equal, the authorised penalties should be the same.
4) Because the criminal proceedings instigated against the Appellant in Germany emanated from substantially the same criminal conduct, his credit for the time served abroad should start prior to the issuance of the Tribunal's formal request for deferral.

Procedural Background

On 14 July 1997, Dusko Tadic was sentenced to 20 years' imprisonment for crimes against humanity and violations of the laws or customs of war1. The Defence filed a notice of appeal against the Judgement on 3 June 1997 and against the sentence on 11 August 19972. On 15 July 1999, in the appeals against the Judgment, the Appeals Chamber found the accused guilty of nine additional counts and denied Tadic's appeal on all grounds3. The issue of sentencing for the additional counts was referred to a Trial Chamber which handed down its sentencing Judgement on 11 November 19994. Holding that each of the sentences was to be served concurrently inter se and in relation to each of the sentences imposed in the Sentencing Judgement of 14 July 1997, Tadic’ sentence was increased to 25 years' imprisonment. The Defence filed an appeal against the sentence on 25 November 1999. On 3 December 1999, the Appeals Chamber ordered that the outstanding appeals against both sentences be joined5. On 26 January, the Appeals Chamber handed down its Judgement in Sentencing Appeals6. This Judgement is the subject of the following summary.

Appeal against Sentencing Judgement of 14 July 1997

The Appeals Chamber successively considered the Appellant's three grounds of appeal:

1) First ground of appeal: According to the Appellant, the 20-year sentence was unfair because its length was not justified by the facts of the case. The Appeals Chamber dismissed this first ground of appeal, saying that it could not find an error in the Trial Chamber's exercise of its discretion in general or with regard to the weight given to the sentencing practice of the former Yugoslavia in particular7. Nor did the Appeals Chamber consider that the Trial Chamber failed to adequately consider Tadic's personal circumstances.

2) Second ground of appeal: The Appellant's second ground related to two connected questions: when the minimum sentence should start to run8, and whether the Appellant should be entitled to credit in respect of the minimum sentence.

With regard to the first question, the Statute and Rules are silent with respect to the recommendation of a minimum sentence. The Appeals Chamber declared that the discretion of a Trial Chamber to recommend a minimum sentence flows from the inherent powers its judicial function implies and is only limited by the requirement of fundamental fairness9 and by the right of the accused to a right of appeal10. According to the Appeals Chamber, "in the light of the fundamental importance of this right, a Trial Chamber should not impose undue encumbrances that could deter a convicted person from pursuing an appeal."11

Consequently, the Appeals Chamber found that the Trial Chamber erred when it ordered that the recommended minimum term (10 years) commence at the time of the final determination of any appeal. Indeed, following that course of action would unduly discourage appeals by the accused by suggesting to prospective appellants that the exercise of their right to appeal could actually result in enhanced penalties12. Instead, the Appeals Chamber declared that the minimum term should start to run from the date of the Sentencing Judgement of 14 July 199713.

With regard to the second issue, the Appeals Chamber found that the Trial Chamber did not err when it ordered that the Appellant not be entitled to credit in respect of the minimum term14.

3) Third Ground of Appeal: Finally, the Appellant argued that the Trial Chamber erred in not giving him credit for the time spent in detention in Germany prior to the issuance of a request for deferral by the International Tribunal. According to Sub-rule 101(D), "credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or pending appeal." Strictly speaking, the Appellant is entitled to credit for the time spent in custody in Germany only for the period pending his surrender to the Tribunal.

However, the Appeals Chamber stated that, because the criminal proceedings against the Appellant in Germany emanated substantially from the same criminal conduct for which he now stands convicted by the International Tribunal, his credit for the time he served in Germany should start prior to the issuance of the Tribunal's formal request for deferral15.

Appeal against Sentencing Judgement of 11 November 1999

With regard to the second Sentencing Judgement, the Appeals Chamber had to consider 6 grounds of appeal:

1) First Ground of Appeal: According to the Appellant, the Trial Chamber Sentencing Judgement gives undue weight to deterrence as a factor in the determination of the appropriate sentence. The Appeals Chamber disagreed16.

2) Second Ground of Appeal: The Appellant's second ground of appeal contends that the Trial Chamber erred in failing to regard sufficiently the need to develop a range of sentences which properly reflects the relative position of different accused and their role in the criminal events. The Appeals Chamber agreed.

According to the Appeals Chamber, the Trial Chamber failed to adequately consider the need for sentences to reflect the relative significance of the role of the Appellant in the broader context of the conflict in the former Yugoslavia. Considering Tadic's relatively low position in the hierarchy, the Appeals Chamber declared that a sentence of more than 20 years' imprisonment for any single count of the indictment for which the Appellant stands convicted was excessive. It thus revised the sentencing Judgement of 11 November 1999 and imposed a sentence of 20 years for each of Counts 29, 30 and 3117.

3) Third Ground of Appeal: The Appeals Chamber dismissed this ground of appeal which argued that the Trial Chamber had erred in its assessment of what constitutes "substantial co-operation" with the Office of the Prosecutor within the meaning of the Rules. The Appeals Chamber found no basis in law or in fact to support the Appellant's claim18.

4) Fourth Ground of Appeal: The Appellant contended that the Trial Chamber erred in holding that, all other things being equal, crimes against humanity should attract a higher sentence than war crimes. The majority of the Appeals Chamber (Judge Cassese dissenting19) held that no distinction could be made between the relative seriousness of crimes against humanity and war crimes. Consequently, the authorised penalties should also be the same, and the level of the sentence should depend only on the circumstances of the case.

5) Fifth Ground of Appeal: The Appeals Chamber declared that the Trial Chamber did not err with respect to the weight to be given to the sentencing practice of the courts of the former Yugoslavia20.

6) Sixth Ground of Appeal: The Appellant's last ground of appeal is that the Trial Chamber erred by not giving him credit for the time he spent in detention in Germany prior to the issuance of a request for deferral by the Tribunal21. The Appeals Chamber held that the interests of justice required that the Appellant be granted credit for the entire time spent in detention in Germany. The time for which the Appellant is entitled to credit should therefore be calculated from the day of his arrest in Germany22.

Separate Opinion of Judge Shahabuddeen

According to Judge Shahabuddeen, there is no principle under international law that, all things being equal, a crime against humanity is a more serious offence than a war crime. For the purpose of sentencing, there should thus be no principled distinction between them. Judge Shahabuddeen thus agreed with the majority on that point.

Separate Opinion of Judge Cassese

Judge Cassese disagreed with the majority with regard to this issue. Underlining the rudimentary and sketchy nature of international criminal law23 and the inapplicability of the nulla poena sine praevia lege poenali principle in international law24, Judge Cassese concluded that one could not infer from international criminal provisions on penalties that a criminal offence is regarded as more serious than another or that a certain class of international crimes encompasses facts that are more serious than those prohibited under a different criminal provision25. In abstracto all international crimes are serious offences and no hierarchy of gravity may a priori be established between them. Consequently, the court must adopt a case by case approach in respect of the seriousness of crimes26.

However, the issue here at hand was concerned with the question of whether the very same facts imputed to an accused could be regarded as more serious depending on how they were characterised. According to Judge Cassese, in the case of crimes against humanity, because of both the broader (i.e. widespread or systematic27) criminal context that such crimes entail, and the knowledge of such context by the accused28, the reaction of the international community to a crime against humanity "must be more severe than in cases where the same conduct amounts to a war crime."29

Judge Cassese concluded that whenever an offence committed by an accused is deemed to be a crime against humanity, "it must be regarded as inherently of greater gravity, all else being equal (ceteris paribus), than if it is instead characterised as a war crime." Consequently, crimes against humanity should entail a heavier sentence30.

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1. The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997 and The Prosecutor v. Tadic, Sentencing Judgement, 14 July 1997. Tadic was initially found guilty of 9 counts and guilty in part of 2 counts: 4 counts of violations of the laws or customs of war (Article 3 – cruel treatment), 5 counts of crimes against humanity ( Article 5 - inhumane acts and 1 count of persecution) and guilty in part to 1 count of crimes against humanity (inhumane act) and 1 count of violations of the laws and customs of war (cruel treatment).
2. The Prosecution filed its notice of appeal against the Judgement on 6 June 1997 but did not appeal the Sentencing Judgement.
3. The Prosecutor v. Tadic, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6). The nine additional counts concerned 7 counts of Grave breaches of the 1949 Geneva Conventions, 1 count of crimes against humanity (Article 5 of the Statute - murder) and 1 count of violations of the laws or customs of war (Article 3 - murder).
4. The Prosecutor v. Tadic, Sentencing Judgement, 11 November 1999 (summarised in Judicial Supplement No. 9)
5. The Prosecutor v. Tadic, Order, 3 December 1999.
6. The Prosecutor v. Tadic, Judgement in Sentencing Appeals, 26 January 2000 (summarised in this issue).
7. Para. 20: "The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead." With regard to the relevance of the law and practice of the former Yugoslavia in respect of sentencing, see paragraph 21.
8. The Trial Chamber declared that it should start to run from the date of the Sentencing Judgement (14 July 1997) or of the final determination of any appeal, whichever is the later.
9. Paras. 28-29.With regard to the concept of inherent judicial powers, see The Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 14-15.
10. Article 25 of the Statute.
11. Para. 29. See also paragraph 30: "Generally, fairness requires that an accused or a convicted person not be punished for the exercise of a procedural right."
12. Para. 31.
13. This was proposed in the alternative by the Trial Chamber.
14. Para. 32. See Rule 101. See also Delalic et al. ("Celebici"), Judgement, 16 November 1998, paras. 1287-1289.
15. Para. 38
16. However, it should be noted that the Appeals Chamber agreed that, as a matter of principle, the deterrence factor should not be given undue prominence in the overall assessment of the sentence (para. 48)
17. Counts 29, 30 and 31. It thus set a maximum sentence of 20 years for each count, as opposed to the 25 years imposed by the Trial Chamber on 11 November 1999.
18. Para. 63.
19. See below.
20. Referring to its conclusions about the first ground of appeal against the 14 July 1997 Judgement, the Appeals Chamber declared that it could not find any abuse of the Trial Chamber’s discretionary power with regard to the sentencing practice in the former Yugoslavia (para. 73). See above.
21. This ground of appeal is identical to the third ground of appeal against the Sentencing Judgement of 14 July 1997.
22. Tadic was arrested on 12 February 1994.
23. Para. 3: "[international criminal rules] do not provide for offences that are specific and well-defined. They do not describe in detail an individual class of conduct (say, murder, or the destruction of private property, or rape). Rather, they contemplate broad categories of disparate offences. In effect, they normally envisage a cluster of prohibited offences that are diverse both in nature and gravity."
24. Under this principle, for conduct to be punishable as a criminal offence, the law must not only provide that such conduct is regarded as a criminal offence but must also set out the appropriate penalty.
25. Para. 6 of the Separate Opinion.
26. Judge Cassese offers a set of factors to be taken into account by the court when determining the sentence (para. 8).
27. See Judge Cassese’s opinion concerning a requirement for war crimes akin to the ‘widespread or systematic’ requirement for crimes against humanity, at paragraph 13 of the Separate Opinion.
28. On the respective mens rea for war crimes and crimes against humanity, see paragraph 14 of the Separate Opinion. On the mens rea for crimes against humanity, see also The Prosecutor v. Kupreskic et al., Judgement, 14 January 2000, paras. 556ff (summarised in this issue of the Judicial Supplement).
29. Para. 15 of the Separate Opinion.
30. Para. 16 of the Separate Opinion.

The Prosecutor v. Dusko Tadic - Case No. IT-94-1-A-R77

"Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin"

31 January 2000
Judges Shahabuddeen [Presiding], Cassese, Nieto-Navia, Mumba and Hunt

Article 15 of the Statute, Rules 45, 46, 77, 89 and 115 of the Rules of Procedure and Evidence, Article 20 of the Directive on Assignment of Defence Counsel and Article 13 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal - power of the Tribunal to punish contempt; circumstances relevant to punishment to be imposed; observations concerning (a) the rule making power of the judges, and (b) the taking of statements of witnesses by counsel in the former Yugoslavia.
1) The Tribunal has an inherent power to hold in contempt those who knowingly and wilfully interfere with its administration of justice.
2) Punishment is imposed not only as retribution for what has been done but also as deterrence of others who may be tempted to act in the same way.
3) The Registrar has a general power to strike counsel off the list of assigned counsel because of serious professional misconduct.
4) The power of the judges to adopt rules of procedure and evidence do not permit rules to be adopted which constitute new offences.
5) Counsel appearing in matters before the Tribunal are bound by the law of the Tribunal to act freely when seeking witnesses in the former Yugoslavia. They are not obliged to have statements taken from prospective witnesses in police stations or in courts or through any other official organs.

The Issue:

Pursuant to Rule 77 of the Tribunal's Rules of Procedure and Evidence, Mr Milan Vujin, Attorney of Belgrade, was called upon by the Appeals Chamber to respond to allegations that he had acted "in contempt of the Tribunal in that he knowingly and wilfully intended thereby to interfere with the administration of justice". Mr Vujin (hereinafter, "the Respondent") had acted for Dusko Tadic (hereinafter, "Tadic") in different capacities during proceedings in the Tribunal until November 1998 - as non-assigned co-counsel during the pre-trial stages of his prosecution, and as assigned lead counsel in the preparation of his appeal against his conviction and in the hearing of related proceedings before the Appeals Chamber . The allegations of contempt arose out of the Respondent's conduct as lead counsel on behalf of Tadic in connection with the appeal.

The allegations of contempt were characterised by the Appeals Chamber under the following headings1:

(1) Putting forward to the Appeals Chamber in support of an application pursuant to Rule 115 to present additional evidence in the Tadic appeal a case which was known to the Respondent to be false -

(a) in relation to the weight to be given to statements made by one Mlado Radic, and
(b) in relation to the responsibility of one Goran Borovnica for the killing of two Muslim policemen.

(2) Manipulating proposed witnesses -

(a) by seeking to avoid any identification by them of persons who may have been responsible for the crimes for which Tadic had been convicted, and
(b) by persuading them to tell lies or to withhold the truth from Witness D (as co-counsel for Tadic) when taking their statements to be used in the Rule 115 application.

(3) Bribing a witness to tell lies to or to withhold the truth from Witness D.

The Decision:

The Appeals Chamber unanimously found that the allegations characterised under headings (1)(a) and (b) and (2)(a) had been made out, but that those under headings (2)(b) and (3) had not been. Milan Vujin was found guilty of contempt accordingly2.

The Reasoning:

With regard to the allegations contained in sub-heading (1)(a), the Appeals Chamber found (i) that a statement which purported to have been given by Radic in Prijedor before his arrest and to the Respondent as a lawyer had, in fact, been given by Radic at the UN Detention Unit in The Hague, after his arrest, and to Tadic, a fellow inmate; (ii) that the Respondent knew that the statement was false in all such respects, and that the timing of the statement and the fact that it had been given to a lawyer were significant matters in the appeal; and (iii) that the Respondent put the statement forward in support of the Rule 115 application with knowledge of its falsity and emphasised the timing of the statement in his submissions3.

Concerning the allegation in sub-heading (1)(b), the Appeals Chamber found that the Respondent put forward a statement by a witness as to the identity of the person he had seen kill the two policemen, while knowing that the statement had been repudiated by the person who made it4.

As to sub-heading (2)(a), the Appeals Chamber found that the Respondent had instructed two proposed witnesses that, if they were asked by co-counsel to identify the persons who committed the criminal acts for which Tadic had been convicted, they should not disclose that identity5.

The Appeals Chamber declared that courts and tribunals necessarily rely very substantially upon the honesty and propriety of counsel in the conduct of litigation6. The Appeals Chamber described the conduct of the Respondent in this case as striking at the very heart of the criminal justice system, and as requiring punishment which served not only as retribution for what has been done but also as deterrence of others who may be tempted to act in the same way7. However, the Appeals Chamber did not consider the extent to which the interests of the accused had been impaired by the conduct in question8. The Appeals Chamber concluded that the contempt in this case remained a very serious one "no matter what disadvantage was or was not in fact caused to Tadic."

The Appeals Chamber expressed the opinion that the Registrar had a general power to strike the Respondent from the list of assigned counsel because of his serious professional misconduct as demonstrated by its findings9. A direction was given to the Registrar to consider striking the Respondent from the list and reporting his conduct to the professional body of which he is a member. The Appeals Chamber then determined the punishment to be imposed upon the Respondent on the basis that, in the reasonable exercise of her power, the Registrar would necessarily strike him off the list and report his conduct.

The Chamber decided that a term of imprisonment would be inappropriate in the present case10. A substantial fine was nevertheless necessary to achieve the purposes for which punishment is imposed11.

With regard to the values and interests protected by the law of contempt, the Appeals Chamber held that this body of law "is not designed to buttress the dignity of the judges or to punish mere affronts or insults to a court or tribunal; rather, it is justice itself which is flouted by a contempt of court, not the individual court or judge who is attempting to administer justice." The law of contempt has been described as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally12.

In the course of its Judgement, the Appeals Chamber examined the Tribunal's power to punish for contempt and concluded that power to punish conduct which tends to obstruct, prejudice or abuse its administration of justice is necessary in order to ensure that its exercise of the jurisdiction expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded. The power to deal with contempt was thus clearly within its inherent jurisdiction13. The Appeals Chamber stated that:

(a) the inherent power of the Tribunal as an international criminal court to deal with contempt is for the present purposes adequately encompassed by the wording of the reservation in Rule 77(E) - that the Tribunal has the power "to hold in contempt those who knowingly and wilfully interfere with its administration of justice"; and

(b) each of the formulations in the current Rules 77(A) to (D), when interpreted in the light of the statement of the Tribunal's inherent power, falls within - but does not limit - that inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunal's administration of justice14.

In addition, the Appeals Chamber made some observations about the rule making powers of the Judges. It pointed out that Article 15 of the Tribunal's Statute empowers Judges to adopt only "[...] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters." (emphasis added)

The Appeals Chamber held that that power does not permit rules to be adopted which constitute new offences but does permit the Judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction15. The content of these inherent powers may be discerned by reference to the usual sources of international law but not by reference to the wording of the rule. The Appeals Chamber went on to state that, where rules do contain statements of what the Judges at the Plenary considered to reflect the jurisprudence upon those aspects of the law as are applicable to the Tribunal, those statements do not invalidate the underlying law, and that both the Tribunal and the parties remain bound by that underlying law.

The Appeals Chamber also made some observations concerning the taking of statements of witnesses by counsel in the former Yugoslavia. The Respondent claimed that counsel in the former Yugoslavia are not permitted to contact witnesses16. The Appeals Chamber said that it had not been placed in a position where it could determine exactly what the law on this point was in the former Yugoslavia, but it did go on to say:

"163. [...] However, whatever the law may be in the various parts of the former Yugoslavia, it must clearly be understood by counsel appearing in matters before this Tribunal that they are bound by the law of the Tribunal to act freely when seeking out witnesses. They are bound by the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which (by Article 19) prevails where there is any inconsistency between it and any other code which counsel may be bound to honour. International law does not recognise any prohibition upon counsel such as asserted by the Respondent to exist in the former Yugoslavia, and States could not effectively legislate to frustrate the proper workings of the Tribunal in that way. 164. [...] it should again clearly be understood that counsel appearing before the Tribunal are not obliged to have statements taken from prospective witnesses in police stations or in courts or through any other official organs. Indeed, in most cases it would be unwise, and potentially counter-productive, to follow such procedures, because of the intimidating effect they may have on the witnesses themselves, and the perceptions which such procedures may create as to the influence of the State upon statements which are made in that way."17

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1. Para. 41.
2. See the Remarks of the Presiding Judge at: http://www.un.org/icty/pressreal/tad-vujin_941r77.htm
3. See paras. 42ff and paras. 132-4.
4. Paras. 46-50 and 135-7.
5. Paras. 52ff and 140-150.
6. See The Prosecutor v. Aleksovski, Finding of Contempt of the Tribunal, 11 December 1998.
7. Para. 167-8.
8. Para. 167: "That is a matter which would require substantial investigation, and no such investigation was either suggested or undertaken in these proceedings."
9. The Code of Professional Conduct for Defence Counsel Appearing Before the Tribunal defines professional misconducts and sets professional standards. See paras. 171-2 concerning the general power of the Registrar to strike a counsel off the list.
10. The maximum penalty prescribed by Rule 77 at the time of the contempt was a term of imprisonment not exceeding six months, or a fine of twenty thousand guilders, or both.
11. The Appeals Chamber fixed that fine at Dfl 15,000.
12. Report of the (UK) Committee on Contempt of Court, 1974, quoted in the Judgement, para. 16.
13. Paras. 17-19. Concerning contempt as a prerogative of the Chambers, see The Prosecutor v. Delalic et al., Decision of the President on the Prosecutor's Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11 November 1996, in which President Cassese stated, obiter dicta, that contempt of Tribunal was the prerogative of the Chambers since it derived from the inherent power of the court to control its own proceedings.
14. Para. 28: "The inherent power of the Tribunal to deal with contempt has necessarily existed ever since its creation, and the existence of that power does not depend upon a reference being made to it in the Rules of Procedure and Evidence. As the Appeals Chamber is satisfied that the current formulation of Rules 77(A) to (D) falls within that inherent power, the amendments made in December 1998 did not increase the nature of the conduct which amounts to contempt to the prejudice of the Respondent's rights."
15. Para. 24.
16. According to the Respondent, statements were permitted to be taken only by "lawyers personally via the investigating judge of the military court", by "lawyers via an order to the Republika Srpska", which took place at the request of a lawyer in a police station with a police typist, and by policemen.
17. Para. 163 and 164.