The Prosecutor v. Dusko Tadic - Case No. IT-94-1-Tbis-R117

"Sentencing Judgement "

11 November 1999
Trial Chamber (Judges McDonald [Presiding], Vohrah and Robinson)


Article 24 of the Statute and Rule 101 of the Rules of Procedure and Evidence - purpose of sentencing; concurrent and consecutive sentences; general sentencing practice of the courts in the former Yugoslavia.

The Judgement:

On 11 November 1999, Trial Chamber issued its Sentencing Judgement for nine additional counts on which Tadic was found guilty by the Appeals Chamber on 15 July 19991.

With regard to the purposes of sentencing, the Trial Chamber referred to the unique mandate of the Tribunal2 as well as to the retributive and deterrent effects of sentencing3. It also made it clear that the general sentencing practice of the courts in the former Yugoslavia was merely guidance for the Tribunal and did not limit the sources upon which the Trial Chamber may rely to determine the appropriate sentence. It further declared that other factors may be considered4 and came to the conclusion that the maximum sentence that can be imposed by the Tribunal is a life sentence5.

The Trial Chamber took note of certain circumstances relevant to sentencing6 as well as diverse mitigating7 and aggravating factors8. It also considered itself bound by the Erdemovic Appeals Judgement's finding that, as a matter of principle and all things being equal, crimes against humanity are more serious than war crimes and should entail a heavier sentenc9.

Finally, the Trial Chamber decided that if the accused is found guilty of a count comprised of two alternative offences without the judgement's specifying on which of the two offences he was found guilty, the ambiguity must accrue to the defendant's advantage and the lesser sentence must be imposed.

The Trial Chamber handed down separate sentences for each of the nine additional counts ranging from six to twenty-five years imprisonment. Each of these sentences is to be served concurrently, both inter se and in relation to each of the sentences imposed in the Sentencing Judgement of 14 July 199710.

Separate Opinion of Judge Robinson:

In his separate Opinion, Judge Robinson commented on two issues. First, with regard to the relative gravity of crimes against humanity and war crimes, he was of the view that, as a matter of principle and all things being equal, the same sentence should be pronounced for both types of offences. Nevertheless, considering himself bound by the Erdemovic's decision on that point, he concurred with those sections of the Judgement which reflect a more severe penalty for crimes against humanity than for war crimes.

Secondly, Judge Robinson did not find the killing of the five men in Jaskici (Counts 29, 30 and 31) to be more heinous than the murder of the two Muslim policemen (Count 1) and thus regarded the discrepancy between the respective sentences (24, 24 and 25 years in the first case and 20 in the latter) as unjustified. In the circumstances of the case, Judge Robinson was of the view that a term of imprisonment of twenty-five years is the appropriate penalty for the killings covered by Counts 29, 30 and 31 and, as such, a similar sentence should have been imposed with regard to Count 1.

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1.See Judicial Supplement No. 6 for a summary of that judgement.
2.'The unique mandate of the International Tribunal of putting an end to widespread violations of international humanitarian law and contributing to the restoration and maintenance of peace in the former Yugoslavia warrants particular consideration in respect of the purpose of sentencing'. Paragraph 7.
3. The Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, 10 December 1998, para. 288. See also, The Prosecutor v. Erdemovic, IT-96-22-T, Sentencing Judgement, 29 November 1996, para. 64.
4. Factors such as those set out in Article 24 of the Statute and Rule 101, as well as factors pertaining to the special nature and purpose of the International Tribunal. For jurisprudence consistent with this finding, see The Prosecutor v. Delalic et al., IT-96-21-T, Judgement, 16 November 1998, para. 1194; The Prosecutor v. Aleksovski, IT-95-14/1-T, Judgement, 25 June 1999, para. 242; For references on the general practice regarding sentences in the courts of the former Yugoslavia, see The Prosecutor v. Erdemovic, IT-96-22-T, Sentencing Judgement, 29 November 1996, para. 33, 39 and 40 and Tadic Sentencing Judgement, 14 July 1997, para. 8.
5. Paragraph 13.
6. Paragraphs 14-18. The Trial Chamber referred to those circumstances that were set out in the Sentencing Judgement of 14 July 1997 by Trial Chamber II (paras. 11 to 35 of the Judgement), incorporating them by reference in the present decision (para. 14). See also paragraphs 15-18 with regard to Counts 29, 30 and 31.
7. In that regard, the Trial Chamber has taken into account, inter alia, the report on Tadic's conduct while in detention at the UN Detention Unit as well as the effect of the length of the sentence on his family (for more details, see paragraphs 21-24). Concerning the issue of mitigating factors more generally, see The Prosecutor v. Erdemovic, Sentencing Judgement, 29 November 1996 and The Prosecutor v. Erdemovic, Sentencing Judgement, 5 March 1998, and Tadic Sentencing Judgement of 14 July 1997paras. 56-58.
8. Paragraphs 19-20. In this context, the Trial Chamber has considered, inter alia, Tadic's awareness of and support for the attack on the non-Serb population of opstina Prijedor. With regard to the issue of aggravating factors, see The Prosecutor v. Erdemovic, Sentencing Judgement, 29 November 1996 and The Prosecutor v. Erdemovic, Sentencing Judgement, 5 March 1998.
9. The Prosecutor v. Erdemovic, IT-96-22-A, Judgement, 7 October 1997. Judge Robinson annexed a Separate Opinion on that issue (see below).
10. The accused is entitled to credit for the period of detention in custody pending trial (five years and three days). This time, plus the time spent in detention pending appeal, will be deducted from the sentence imposed (see Sub-rule 101(D)).