1 Monday, 25 April 2005

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 10.02 a.m.

6 JUDGE MUMBA: Good morning. May the Registrar please call the

7 case.

8 THE REGISTRAR: Good morning, Your Honours. This is case number

9 IT-03-72-A, the Prosecutor versus Milan Babic, appeals hearing.

10 JUDGE MUMBA: Thank you. I'd like to make sure that the

11 interpreters are in place and can hear us and we can also hear them.

12 THE INTERPRETER: Yes, Your Honour.

13 JUDGE MUMBA: Thank you. I'll now have the parties. The

14 Defence, as the appellants, please.

15 MR. MUELLER: Good morning, Madam President, Your Honours. Mr.

16 Robert Fogelnest and Peter Michael Mueller.

17 JUDGE MUMBA: Thank you. The Prosecution, please.

18 MR. McKEON: Good morning, Your Honours. For the Prosecution,

19 Mark McKeon, with my co-counsel Mr. Xavier Tracol and Ms. Kristina Carey.

20 And we are also accompanied in this Chambers by our case manager, Susan

21 Grogan.

22 JUDGE MUMBA: I would like to find out whether the accused -- the

23 appellant Mr. Milan Babic, can hear the proceedings in a language he

24 understands, please.

25 THE APPELLANT: [Interpretation] Yes, Your Honour, I do.

1 JUDGE MUMBA: Thank you. Please sit down.

2 I would like to explain how we are going to proceed during this

3 hearing. As the Registrar announced, the case on our agenda is that of

4 the Prosecutor versus Milan Babic. As this is an appeal Mr. Milan Babic

5 is the appellant. This is an appeal from a judgement rendered by the

6 Trial Chamber on 29th June 2004.

7 At a plea hearing held on the 27th of January, 2004, Mr. Babic,

8 the appellant, pleaded guilty to one count of persecution, arising out of

9 events that took place in Croatia, where he participated in a joint

10 criminal enterprise that came into existence from 1 August 1991 and

11 continued until at least June 1992. The purpose of this joint criminal

12 enterprise was the permanent forcible removal of the majority of the

13 Croat and other non-Serb population from approximately one-third of the

14 territory of Croatia in order to make it part of a new Serb-dominated

15 state through the commission of crimes in violation of Articles 3 and 5

16 of the Statute of the Tribunal. These areas included those regions that

17 were referred to by Serb authorities as the Serbian Autonomous District

18 of Krajina; the Serbian Autonomous District of Western Slavonia; the

19 Serbian Autonomous District of Slavonia, Baranja and Western Srem.

20 After 19th December 1991, the Serbian Autonomous District of

21 Krajina became known as the Republic of Serbia, Serbian Krajina. On 26th

22 February, 1992, the Serbian Autonomous District of Western Slavonia and

23 the Serbian Autonomous District of Slavonia, Baranja and Western Srem

24 joined the Republic of Serbian Krajina as well as the Dubrovnik Republic.

25 On 28 January 2004, based on a plea agreement filed on the 22nd

1 January 2004, the Trial Chamber entered a conviction under Articles 5(h)

2 and 7(1) of the Tribunal's statute against Mr. Babic -- I want to find

3 out whether we have a problem.

4 I understand the transcript is not working.

5 Are we still having a problem?

6 I understand the microphone is working. We can proceed.

7 THE INTERPRETER: Your Honour, could you please slow down for the

8 interpretation? Thank you.

9 JUDGE MUMBA: I'll go back a bit.

10 On 28 January 2004, based on a plea agreement filed on 22 January

11 2004, the Trial Chamber entered a conviction under Articles 5(h) and 7(1)

12 of the Tribunal's statute against Mr. Babic on Count 1 of the indictment

13 issued on the 6th of November 2003, for persecutions on political, racial

14 and religious grounds, a crime against humanity, for his participation in

15 the joint criminal enterprise as a co-perpetrator. The Trial Chamber

16 sentenced Mr. Babic to 13 years of imprisonment on 29 June 2004. Mr.

17 Babic has now appealed.

18 This morning, we will hear submissions on appeal from both

19 parties, but before giving the floor to counsel, I will summarise briefly

20 the appellant's grounds of appeal as stated in the written submissions.

21 When filing his notice of appeal on 3rd September 2004, Mr. Babic

22 initially raised 12 grounds of appeal. On 15th November 2004, he

23 withdrew ground of appeal number 12.

24 The first ground of appeal is that the Trial Chamber abused its

25 discretion by coercing Mr. Babic to enter a plea of guilt as a

1 co-perpetrator and by declining to accept the first plea agreement in

2 which he was to plead guilty as an aider and abettor. The second ground

3 of appeal is that the Trial Chamber erred by failing to issue a reasoned

4 opinion as required under Article 23 of the Statute. In his third ground

5 of appeal, Mr. Babic argues that the Trial Chamber erred in failing to

6 consider and weigh the evidence concerning his limited participation as a

7 mitigating factor.

8 In the fourth ground of appeal, Mr. Babic contends that the Trial

9 Chamber erred in failing to afford appropriate weight as a mitigating

10 circumstance to the fact that he and his family must continue to live as

11 protected witnesses.

12 In the fifth ground of appeal, Mr. Babic argues that the Trial

13 Chamber erred in failing to consider his prior good conduct as a

14 mitigating circumstance.

15 In the sixth ground of appeal, Mr. Babic asserts that the Trial

16 Chamber erred in failing to consider his conduct subsequent to the crime

17 as a mitigating circumstance.

18 In the seventh ground of appeal the appellant argues that the

19 Trial Chamber abused its discretion in finding that he held a leadership

20 position and in considering that as an aggravating factor.

21 The eighth ground of appeal is that the Trial Chamber grossly

22 misconstrued Mr. Babic's role and his participation in the joint criminal

23 enterprise.

24 In the ninth ground of appeal, Mr. Babic argues that the Trial

25 Chamber erred by basing its decision on facts that occurred outside the

1 temporal scope of the indictment.

2 The tenth ground of appeal is that the Trial Chamber failed to

3 afford appropriate weight to the totality of mitigating circumstances

4 that it found had been established.

5 Finally, as the eleventh ground of appeal, Mr. Babic argues that

6 the Trial Chamber erred in imposing a burden upon him to convince it of

7 his recognition of the significance of his own role in Croatia during

8 that period.

9 I would now like to remind the parties about the standard of

10 review applicable to sentencing appeals. The relevant provisions on

11 sentencing are Articles 23 and 24 of the Statute and Rules 100 to 106 of

12 the Rules of Procedure and Evidence. Under Article 25 of the Statute, an

13 appeal is not a trial de novo; the role of the Appeals Chamber is limited

14 to correcting errors of law, invalidating a decision and errors of fact

15 that have occasioned a miscarriage of justice.

16 Trial Chambers have a wide discretion when exercising their

17 powers of sanction and penalty so as to fit individual circumstances of

18 the accused and the gravity of the crime.

19 The Rules of Procedure -- the rules of practice are that the

20 Appeals Chamber will not revise a sentence unless it is demonstrated that

21 the Trial Chamber committed a discernable error in exercising its

22 discretion. A Trial Chamber's decision may, for example, be disturbed on

23 appeal if the appellant shows that the Trial Chamber erred in the

24 weighing process either by taking into account what it ought not to have

25 considered or by failing to take into account what it tut have taken into

1 account.

2 As we proceed, I would also ask the parties to be precise and

3 clear in their submissions and to observe time. Consistent with our

4 scheduling order which was issued some time ago, the appellant has up to

5 30 minutes to make the submissions on the appeal. The Prosecution will

6 have 30 minutes to respond to the appellant's submissions, and the

7 appellant, if he so wishes, will have ten minutes to reply. The

8 appellant will have ten minutes to reply to the Prosecution's response.

9 If there are no questions from the outset, we will proceed

10 hearing counsel. But before we start I would like to make clear to the

11 appellant that at the end of the submissions by counsel, he may address

12 the Appeals Chamber for ten minutes if he so wishes. He may also raise

13 any matters concerning his conditions of detention and his health, if he

14 so wishes.

15 I'll just find out whether there are any queries from my

16 colleagues. I see none. I'll call upon counsel for the appellant to

17 address the Appeals Chamber.

18 MR. MUELLER: Madam President, Your Honours, distinguished

19 learned colleagues, I would like to say right away at the beginning that

20 I carefully read the last scheduling order issued by the appellant --

21 Appeals Chamber. Recounting what has been submitted in writing already

22 earlier is indeed superfluous and in addition to this, it would be also

23 unpolite, for it would insinuate that the submissions were not taken note

24 of.

25 In addition to this, Your Honours, I can announce that I will not

1 exhaust the period of time allocated to the appellant, Defence.

2 First, let me make one point which struck me right at the

3 beginning of today's hearing when I read the transcript on the screen on

4 the very first page in line 8. I might suggest that the wording there --

5 the joint criminal enterprise came into existence on August 1, 1991 and

6 continued at least to June 1992 be amended, in that case into February

7 1992 because that is the date the indictment against Mr. Babic refers to.

8 It's in paragraph 7 of the indictment, by the way. Thank you.

9 I would like -- Your Honours, I would like to deal with the

10 submissions --

11 JUDGE MUMBA: Before you start I just wanted to take note of that

12 amendment because the indictment is clear as to the period of the

13 indictment which is covered. The description of the events may be

14 different but the indictment is clear for the period covered.

15 MR. MUELLER: The indictment is clear, as it says, until at least

16 February 1992.

17 JUDGE MUMBA: Yes.

18 MR. MUELLER: If you consider this to be sufficient, I agree,

19 Madam President.

20 JUDGE MUMBA: Yes, you may proceed.

21 MR. MUELLER: Thank you, Madam. I would like to deal with the

22 submission of the Office of the Prosecutor dated 20 December 2004, just

23 very, very cursorily. Appellant and Prosecution have presented their

24 points of view very clearly and the only issues I would like to raise at

25 this occasions are these ones.

1 The Prosecution concurs with the appellant with respect to the

2 grounds of appeal number 3, 5 and 6, and the appellant joins these

3 arguments in addition to his own ones in this context. All the rest of

4 the grounds submitted by appellant were requested to be dismissed. I

5 have to admit very frankly, Your Honours, that I were [sic] very happy if

6 the Prosecution could have met the position taken by the appellant

7 regarding grounds 7 and 9 in a more favourable way. But with respect to

8 grounds 1, 2, 4, 8, 10 and 11, the Prosecution's arguments are received

9 with greatest respect, they are comprehensible sine ira et studio

10 although appellant's position is a little different.

11 Let me come back to ground 7 and 9 and let me deal with it in an

12 antinumerical order, ground number 9 first and very briefly.

13 The Prosecution concludes in its submission in paragraph 3.86,

14 starting at the fourth line from below, read as a whole, the judgement

15 suggests that the Trial Chamber was fully aware of the geographic and

16 temporal limits of the appellant's participation and ruled accordingly.

17 Accordingly the Trial Chamber did not make a discernable error in

18 validating the judgement. My remark on this very occasion is just this

19 one, that appellant's impression is that the wording of the judgement

20 suggests the contrary. The scope of appellant's influence, his sphere of

21 control never ever covered one-third of Croatia's territory. Therefore,

22 the verdict of the judgement remains at least unclear and lacks this

23 level of clarity which is needed when handing down a judgement.

24 With respect to the seventh ground of appeal, I would like to

25 make reference to paragraphs 3.68 and 3.50 of Prosecution's response.

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1 The Prosecution came to the conclusion that the appellant, and I quote

2 3.68, "That the appellant has mischaracterised the Trial Chamber's

3 holding with respect to the appellant's leading role," and the submission

4 continues by saying "the Trial Chamber never concluded that the appellant

5 had a leadership role in the joint criminal enterprise."

6 A footnote, number 131, in that submission of Prosecution, is

7 attached to this conclusion and this footnote refers to paragraph 79 of

8 the sentencing judgement. Which reads as follows -- this source reads as

9 follows: It's the fourth line from below, paragraph 79 of the judgement,

10 "Babic's role in the JCE allowed the JCE to function; his participation

11 furthered the objective of the JCE." I do not read there Babic --

12 "Babic's role as a high-level political leader allowed the JCE to

13 function;". The wording is as I quoted before. It must be clear, Your

14 Honours, that by applying an argumentum in contrarium, this wording of

15 the judgement very clearly does not mean anything else than without Babic

16 the JCE would not have functioned as it did. What else, Your Honours,

17 does this insinuate and mean than that Babic was a key factor in the JCE

18 or did have a leadership role? This is why we cannot follow the

19 submissions of the Prosecution in that context. And as a consequence of

20 that, what I have placed on your table now, one must come to the

21 following conclusions, to my opinion. First, it is not accurate when the

22 Prosecution emphasises that the Trial Chamber never concluded that the

23 appellant had a leadership role in the JCE; and second, and even more

24 important, the way how the Trial Chamber dealt with the earlier

25 submissions of the parties, the evaluation of these submissions, such as

1 exempli gratia, the factual statement, the sentencing briefs and the

2 evidence submitted jointly by OTP and the Defence to the Trial Chamber,

3 might have been erroneous. I intentionally use the subjunctive wording

4 "might have been erroneous," because in this very moment of my arguments,

5 I feel compelled to introduce here and - now a general observation on the

6 subject of clarity and elimination of potential errors in judgements - in

7 case a judgement's wording leaves room for interpretation, it cannot be

8 characterised as unambiguous. Thus, it lacks of a certain level of

9 ultimate clarity which, however, is needed to rule out the potential

10 error on the side of a Trial Chamber. Uncertainty -- uncertainty is thus

11 one of the different levels of the term "error." And please allow me to

12 refer to my personal experience, which I have in that context in Germany,

13 the country I'm from.

14 Such unclear verdicts always lead to the Federal High Court of

15 Justice reversing the judgement at issue. The reasons given for the

16 reversal is that it cannot be established beyond all doubt whether or not

17 a Chamber acted unerroneously.

18 This lack of clarity, Your Honours, of the judgement of the Trial

19 Chamber has already been examined in appellant's brief of appeal and my

20 oral submissions here of today took this -- took up this issue again

21 briefly. This lack of charity also has been carved out in part by

22 relevant arguments contained in the Prosecution's response, and I would

23 like to emphasise inter alia paragraph 3.46 of the Prosecution's response

24 in that context. I do not intend to quote that any longer.

25 Madam President, Your Honours, please let me conclude by

1 requesting these Appeals Chamber to allow therefore the submitted grounds

2 and to revise the sentence handed down by the Trial Chamber accordingly.

3 And as you can see, I have strictly obeyed your scheduling order and I

4 thank you very much for your kind attention.

5 JUDGE MUMBA: Thank you, Counsel. I'll just find out if there

6 are questions.

7 Judge Guney wishes to ask a question.

8 JUDGE GUNEY: [Interpretation] Thank you very much, Madam

9 President. I do have a question that I'd like to address the Defence

10 counsel with regard to the eleventh ground of appeal. Do you think that

11 the judgement by the Trial Chamber in paragraph 98 of the sentencing

12 judgement according to which the appellant did not always at all times

13 recognise the significance of the part and the role he played in Croatia,

14 do you think that this has been considered by the Trial Chamber as a

15 circumstance that would be an aggravating circumstance? If it is so, how

16 do you account for the fact that the Trial Chamber did not mention this

17 element in the part of the judgement dealing with the aggravating

18 circumstances in the sentencing judgement? Thank you.

19 MR. FOGELNEST: May I respond, Your Honour? I can't see all of

20 you, I apologise. Let me see if I can -- how is this?

21 MR. FOGELNEST: Come right here, please.

22 JUDGE MUMBA: Counsel may have to take the other podium.

23 MR. FOGELNEST: My apologies.

24 The problem is, it's very confusing. In their opinion, they

25 speak of him not fully recognising what his role was. However, from all

1 of the statements in the factual basis and from all of the statements

2 given to the Trial Chamber by the Office of the Prosecutor, Mr. Babic did

3 recognise and was remorseful and accepted responsibility. He went to the

4 Tribunal before he was indicted. He cooperated and testified against

5 Milosevic for, I believe, 18 days, before he was indicted. He did all of

6 this while under witness security, knowing that he was to be indicted.

7 He testified subsequently, after he had entered his plea of guilty. He

8 expressed his remorse at the time he entered his plea. All of these

9 things belie the Trial Chamber's conclusion that he did not recognise the

10 significance of his acts. So I have no explanation for why they said

11 that. Does that answer Your Honour's question?

12 JUDGE GUNEY: Yes, thank you very much.

13 MR. FOGELNEST: Thank you, Your Honour.

14 JUDGE MUMBA: Judge Shahabuddeen?

15 JUDGE SHAHABUDDEEN: Mr. Fogelnest?

16 MR. FOGELNEST: Is there another question?

17 JUDGE SHAHABUDDEEN: This question is addressed to Mr. Fogelnest.

18 I have been perplexed so why the Trial Chamber made no reference, in its

19 sentencing judgement, to the appellant's involvement in the peace

20 negotiations. I am speaking of your sixth ground of appeal.

21 MR. FOGELNEST: Yes, the conversations with Peter Galbraith.

22 JUDGE SHAHABUDDEEN: Yes. There doesn't seem to be any reference

23 in the judgement to that aspect, and I am interrogating myself as to why

24 this might be. I have before me your sentencing brief before the Trial

25 Chamber, and in that sentencing brief, paragraph 65, of which deals with

1 conduct subsequent to the crime, there I would have expected to see some

2 reference to this matter, but no reference was made there in that

3 paragraph. I'm talking only of your written -- written arguments before

4 the Trial Chamber. I see that in your appeal brief, appellant's brief

5 before this Chamber, dated 15th of January 2004, you said in paragraph

6 132, the Trial Chamber was presented -- was presented -- with evidence

7 that Peter Galbraith, the American ambassador to Croatia, met the

8 appellant in 1955 [sic] in connection with the Z-4 peace plan

9 negotiations, and then you refer in footnote 99 to the Prosecutor's

10 sentencing brief in which, no doubt, the Prosecution developed that

11 aspect of the matter. But it seems to me that the appellant himself, in

12 his written arguments before the Trial Chamber, did not refer to these

13 peace plan negotiations or to his involvement in them. Could you explain

14 that to me?

15 MR. FOGELNEST: Your Honour, candidly, I think we were negligent.

16 JUDGE SHAHABUDDEEN: Ah.

17 MR. FOGELNEST: That should have been in the brief. It was not.

18 However, the Trial Chamber was presented with all of the transcripts from

19 the Milosevic trial, including those of Peter Galbraith. I believe the

20 Prosecution mentioned it in their brief and I confess negligence in not

21 mentioning it in ours. This was a rather overwhelming task and I

22 apologise but that's the honest answer, Your Honour.

23 JUDGE SHAHABUDDEEN: Well, that satisfies all the tests referred

24 to by your distinguished colleague when he spoke of the necessity for

25 clarity. I accept your statement that it was an oversight.

1 MR. FOGELNEST: Are there any other questions, Your Honours?

2 JUDGE MUMBA: Yes, Judge Schomburg.

3 JUDGE SCHOMBURG: Just as a follow-up question to this.

4 Apparently, the Trial Chamber addressed there question in paragraphs 95,

5 96, when discussing the subsequent conduct of the appellant by saying

6 that "the Trial Chamber is not satisfied that conclusive evidence was

7 provided that Babic alleviated the suffering of victims whether

8 immediately after the commission of the crime... or after the end of the

9 armed conflict... His subsequent behaviour concerned matters such as

10 cooperation and acceptance of responsibility, which have already been

11 considered.

12 "The Trial Chamber rejects the Defence's claims that Babic's

13 post-conflict conduct constitutes a mitigating circumstance."

14 I'm extremely grateful to my colleague, Judge Shahabuddeen,

15 having already addressed this question. Could you please give me some

16 further guidance where the Trial Chamber could have found when rendering

17 the sentencing judgement additional arguments, either in the transcript

18 or in the plea agreement, on this post-crime conduct?

19 MR. FOGELNEST: If I understand your question, Judge Schomburg, I

20 believe it's answered in the brief in that there is a two-pronged

21 argument. The first is that -- well, that the -- Mr. Babic must provide

22 conclusive evidence. For a mitigating factor, it is only by a

23 preponderance of the evidence, not by conclusive evidence. The second

24 prong is that the -- alleviating the suffering of the victims is only but

25 one factor in this area which could be considered. The problem is that

1 they did not address at all Mr. Babic's participation in the Z-4

2 discussions with Ambassador Galbraith. I hope that answers your

3 question, Judge Schomburg.

4 JUDGE SCHOMBURG: Thank you for this, and let me continue with

5 two questions I in principle should not put to you because they are

6 hypothetical by nature. Please allow me to ask them. In case when you

7 had the first meetings with the Prosecution and the Prosecution would

8 have offered to you a plea agreement describing the criminal conduct of

9 your -- of the appellant as co-perpetrator and not as an aider and

10 abettor, would this have been an obstacle to you to enter a plea

11 agreement?

12 MR. FOGELNEST: It's a heck of a question. I'm not

13 certain. Here is the problem. The distinction between aider and abettor

14 and a level 3 co-perpetrator is, in all candour, barely comprehensible.

15 Let me -- I beg your indulgence.

16 In Tadic, there were three different categories of mens rea

17 engendering culpability as a co-perpetrator in a JCE. The third category

18 of cases arises where there is a state of mind in which a person,

19 although he did not intend to bring about a certain result, was aware

20 that the actions of the group were most likely to lead to that result but

21 nevertheless willingly took the risk.

22 In the Blaskic appeal and Vasiljevic, in the case of aiding and

23 abetting, the requisite mental element is "knowledge that the acts

24 performed by the aider and abettor assist in the commission of a specific

25 crime of the principal." Those two are very difficult to discern the

1 difference. Would it have presented a problem? Probably, but I can't

2 say for certain.

3 Here was the situation, Judge Schomburg: Babic came forward when

4 he saw his name on a Milosevic indictment, cooperated with the Tribunal,

5 cooperated with the OTP. It was a fait accompli that he would be

6 indicted and plead guilty. So should he have pled guilty as an aider and

7 abetter? Should he have pled guilty as a co-perpetrator, given these

8 definitions? I can't tell you.

9 JUDGE SCHOMBURG: Thank you very much for this extremely honest

10 answer, because I would also have my difficulties to see a discernable

11 distinction between these two heads of responsibility. But the final

12 question would be: When, from the outset the agreement would have been

13 based on the suggestions by the Prosecution that the outcome -- be it now

14 aiding and abetting, be it now the third category of joint criminal

15 enterprise -- that the outcome should be 13 years. And this is a

16 question of -- also of remorse and accepting guilt and showing people on

17 the ground that, in fact, your client feels responsible for these crimes.

18 I don't want to minimise two years. Two years in life is a lot.

19 However, would at that time this have been an obstacle for you to

20 entering a plea agreement if the result would have been of the plea

21 agreement 13 years?

22 MR. FOGELNEST: That again is difficult for me to answer because

23 knowing now what I know about the effect of a plea agreement - which is

24 nothing - it probably would not have been, to be honest with you.

25 However, at the time, we believed that a plea agreement meant something,

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1 that the Court would be guided by a plea agreement, that they would

2 follow the recommendation. We understand that the Statute provides that

3 they need not do so. But we thought that at least, if there was a

4 violation of the plea agreement -- it's not the right word -- but if

5 there was a disqualification of the plea agreement, that the Court would

6 at least explain its reasons in a way that would make sense. Clarity.

7 JUDGE SCHOMBURG: Thank you.

8 MR. FOGELNEST: Thank you, Your Honour. Are there any other

9 questions?

10 JUDGE MUMBA: I see none. Thank you, Counsel.

11 MR. FOGELNEST: Thank you, Judge Mumba.

12 JUDGE MUMBA: I now call upon the Prosecution to respond. 30

13 minutes.

14 MR. McKEON: Good morning, Your Honours. This morning, to the

15 extent that it's necessary to actually make oral submissions on the

16 various grounds of appeal, my co-counsel, Ms. Kristina Carey will be

17 addressing the first, third, seventh, eighth and ninth grounds of appeal.

18 Mr. Tracol will be addressing the fourth, fifth, sixth, tenth and

19 eleventh ground of appeal, and I will be addressing the second ground of

20 appeal. For those grounds of appeal where we don't make oral

21 submissions, then we will of course be available to answer any questions

22 that you might have on those various grounds.

23 Before we get into the substantive arguments, I did want to

24 clarify one part of our brief which I think left a question unanswered,

25 which is: If the Appeals Chamber accepts our submission that there were

1 errors in some of the grounds of appeal or indeed their suggestion that

2 other grounds of appeal had errors, what is the Prosecution's

3 recommendation now on what sentence is appropriate for Mr. Babic. We

4 didn't address that in our brief. As you know, at the Trial Chamber, our

5 recommendation was that Mr. Babic should receive a sentence of less than

6 11 years. And we emphasised in the Trial Chamber below 11 years.

7 As you've pointed out to us at the beginning of this hearing and

8 as we say in our submissions, of course, the mere fact that the Trial

9 Chamber did not follow our recommendation does not mean that there was a

10 discernible error and that the judgement should be revised. Therefore,

11 we've carefully gone through the arguments made by the appellant,

12 disagreed where we must with those submissions which we think are legally

13 wrong, and agreed where we must with those where we think there was

14 error. Our submission is that if you agree with the appellant and with

15 us that there was legal error in the third, fifth and sixth of ground

16 appeal, or indeed in any of the other grounds of appeal, that the

17 appropriate sentence is the one that we recommended before the Trial

18 Chamber, which is a sentence below 11 years of imprisonment.

19 With that, Your Honour, I would like to without further delay

20 turn the podium over to my colleague, Ms. Kristina Carey.

21 JUDGE MUMBA: Yes, Ms. Carey.

22 MS. CAREY: Good morning, Your Honours. Briefly, before turning

23 to my grounds of appeal, I would like to address some of the points that

24 were raised by my learned colleagues for the appellant.

25 With respect to ground 7, I would just like to highlight that

1 paragraph 79 which was pointed out in our brief does not deal with the

2 aggravating circumstance that was in question but in fact deals with

3 mitigating circumstances. Also, paragraph 79 indicates that the Trial

4 Chamber understood that the appellant was not, to quote this -- to quote

5 the judgement, "the prime mover in the campaign of persecutions." I

6 would point the Appeals Chamber to paragraphs 54 and 62, which do deal

7 with aggravating circumstances, and in that -- in those paragraphs, the

8 Trial Chamber focused on his position as a high-level political leader,

9 and I will address this -- the ground in its entirety a little bit

10 further on, unless you have questions now.

11 With respect to ground 9, I would first like to point out that my

12 learned colleague stated something in the order of if there might have

13 been an error, then this Chamber must reverse ground 9. That is in fact

14 not the standard of review. The appellant is required to show that there

15 was a discernible error and in this case, they did not do so.

16 Specifically with respect to some of their additional arguments

17 in ground 9, the indictment clearly differentiates between the goal of

18 the joint criminal enterprise itself and the temporal and geographic

19 scope of the appellant's own participation in the joint criminal

20 enterprise.

21 In this particular case, the Trial Chamber adopted the very

22 language that was used in the indictment with respect to the scope of the

23 JCE and the scope of the appellant's participation. This is the

24 indictment to which this appellant pled.

25 In a complete reading of the judgement, you can see that the

1 Trial Chamber did, when talking about the actual conduct of the

2 appellant, limit itself to the area located in the Krajina and the time

3 period between the 1st of August 1991 and the 15th of February 1992. And

4 I would like to specifically point Your Honours to the paragraphs in the

5 sentencing judgement, paragraphs -- you don't need to read them right now

6 but the paragraphs 14, 15, 50 and 51.

7 Now, with that, I would like to move on to my -- the grounds that

8 I have prepared this morning. One of the critical questions in this

9 appeal is whether the Trial Chamber made an error with respect to its

10 characterisation of the appellant's overall criminal conduct. The

11 appellant in this respect has raised four grounds that attempt to

12 identify an error. These grounds are ground 1, ground 3, ground 7 and

13 ground 8. As my co-counsel has indicated, and as our learned colleagues

14 have indicated, there is a ground upon which we agree, and that is ground

15 3. The Prosecution believes that it is in this ground where one can

16 indicate, one can see an error made by the Trial Chamber that has

17 impacted the sentence and feels that this error is best characterised by

18 the Trial Chamber or in is best characterised as one being -- concerning

19 the gravity of the offence. The Prosecution disagrees based solely upon

20 the law with the appellant's other three grounds with relation to this

21 issue which are grounds 1, 7 and 8. I would like to go first to

22 ground 3, which is the ground upon which we are in agreement with the

23 appellant.

24 The Trial Chamber did make a legal error with respect to the

25 gravity of the offence. The Trial Chamber failed to an adequately

1 consider the form and nature of the appellant's participation in the

2 crimes that were charged. This led them to impose an excessive sentence.

3 The gravity of the offence is the starting point for determining

4 sentence. It requires that the Trial Chamber consider the form and

5 degree of the participation of the accused in the crime. In this

6 particular case, the Trial Chamber determined that the appellant's

7 participation was sufficient to make him a co-perpetrator rather than an

8 aider and abettor. The Trial Chamber, as you have been -- as our

9 colleagues have -- our learned colleagues for the appellant have

10 indicated, disagreed with both the Prosecution and the Defence at trial

11 as to the -- whether or not his participation was sufficiently limited to

12 construe -- to constitute a mitigating circumstance. The Trial Chamber,

13 however, did not consider his participation in light of the entire scope

14 of the criminality of the joint criminal enterprise in this case, or in

15 comparison with the participation of his fellow co-perpetrators. The

16 appellant's participation was far less extensive than his fellow

17 co-perpetrators in this case. He did not physically perpetrate any of

18 the underlying crimes. He also did not command the physical

19 perpetrators. He was also, as indicated in the plea agreement and

20 factual statement, marginalised by those high-level players in the joint

21 criminal enterprise, diminishing his ability to take action. The

22 Prosecution submits that for the reasons that are set out here and also

23 in our brief, that the Trial Chamber erred by failing to consider these

24 critical facts and because of that, it did not adequately consider the

25 participation of the accused when it came to a conclusion about the

1 gravity of the offence.

2 Unless Your Honours have questions, I would like to move to

3 ground 1.

4 JUDGE MUMBA: There are no questions. Counsel, you may move on.

5 MS. CAREY: With respect to the first ground of appeal the Trial

6 Chamber did not err when it indicated that the legal qualification of Mr.

7 Babic as an aider and abettor was inconsistent with some of the facts

8 that were presented in the factual statement. At all times, the Trial

9 Chamber acted within the confines of the critical Rule, which is Rule 62

10 bis(4). That requires the Trial Chamber be satisfied with the totality

11 of an accused's criminal conduct, that it's reflected in the plea

12 agreement before they may accept that plea. Even in this case, where the

13 parties agreed, the Trial Chamber must still satisfy itself that the

14 accused is guilty of the crimes charged in the indictment and that it

15 encompasses the full, the totality of his criminal conduct when the Trial

16 Chamber evaluates the materials before it. In this case, the Trial

17 Chamber indicated that the facts that were in the factual statement that

18 led the Trial Chamber to its view -- or that there were factual -- things

19 within the factual statement --

20 THE INTERPRETER: Could the counsel please slow down?

21 MS. CAREY: Yes, thank you. In this case, the Trial Chamber did

22 indicate that there were facts contained in the factual summary that led

23 it to its conclusion that the aiding and abetting was not a proper

24 characterisation.

25 Now, it's important also at this critical stage that the Appeals

1 Chamber feel confident that the conviction as a co-perpetrator is safe.

2 In this case, the -- meaning that the appellant entered the plea

3 voluntarily, and with knowledge of the crimes that were charged and the

4 distinction between the possible crimes that could have been convicted

5 of. In this specific case, the Trial Chamber asked the appellant if he

6 understood specifically the change in the plea between plea agreement 1

7 and plea agreement 2 and whether he understood the implications of this

8 change in the further appearance and the appellant in this case said that

9 he did.

10 Also in the course of the plea agreement, the appellant confirmed

11 that he was not going to later challenge his plea of guilty. While it's

12 not now the Prosecution's understanding that that is the appellant's

13 intent, if in fact the appellant is now indicating that somehow there was

14 a problem with the understanding of the distinction between aiding and

15 abetting and co-perpetration, that would go to the critical issues of

16 whether or not he understood what he was pleading to and of course the

17 remedy in that case would not be a reduction of sentence, which is what

18 is being requested, but in fact an order for a new trial.

19 There was a further point made in the appellant's first ground

20 which was that the Trial Chamber erred by not allowing Mr. Babic to it

21 enter an open plea. In this case an open plea isn't available under the

22 Statute and is not appropriate. Also a Trial Chamber can only accept a

23 plea from an accused who is fully apprised of the nature and consequences

24 of his plea and to what precisely he is pleading guilty. In this case,

25 an open plea would have made that impossible.

1 Turning briefly to ground 7, I just want to re-emphasise here

2 that the appellant -- in this particular ground, the appellant has

3 misconstrued what the Trial Chamber did. It did not base this particular

4 aggravating circumstance on Mr. Babic's leadership role in the joint

5 criminal enterprise. In fact, it based the aggravating circumstance on

6 his role as a regional political leader. There was a decision that is

7 very well founded in Tribunal jurisprudence and in the jurisprudence of

8 this Tribunal, the factors being considered aggravating in many cases

9 including the case of Biljana Plavsic of Simic, Miroslav Deronjic and

10 Kordic, amongst others. It's been well accepted and the Appeals Chamber

11 itself has highlighted that this is one of the points upon which

12 aggravating factor can be determined.

13 And then just turning briefly to ground 9 -- actually, I'm not

14 going to turn to ground 9. I feel that I've adequately covered that in

15 my opening statement. And unless Your Honours have any other questions,

16 I would conclude my presentation at this time and make time for my

17 colleague, Mr. Tracol.

18 JUDGE MUMBA: Yes, there are no questions. Thank you, Counsel.

19 MS. CAREY: Thank you.

20 MR. TRACOL: [Interpretation] Madam President, Your Honours, I am

21 now going to reply to five grounds of appeal: ground 4, life as a

22 protected witness; ground 5, good character, prior good character; ground

23 6, subsequent conduct to the commission of the crime; ground 10,

24 insufficient weight according to Defence given to the totality of

25 mitigating factors; and then briefly ground 11, raised by the appellant.

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1 Most of these grounds have to do with mitigating circumstances. My

2 colleague, McKeon, told you earlier on that the Prosecution agreed with

3 the Defence on some of these grounds. I would like now to return to the

4 reasons why we agreed on some grounds. Sometimes these reasons may

5 differ from the grounds expressed by the appellant counsel.

6 With regard to ground 4, namely life as a protected witness, the

7 Prosecution first notes that this ground of appeal only deals with the

8 appreciation or assessment of the weight given by the Trial Chamber to

9 mitigating factors and not a distinct question, which is to identify what

10 mitigating factors actually are. We do concede that the appellant is the

11 first accused who was a protected witness to be relocated with the

12 members of his family. In a way, he is a protected accused. As such,

13 his situation is really, literally, extraordinary; it is out of the

14 ordinary. According to the Prosecution, the appellant failed to

15 discharge his burden of proof which was to show that the Trial Chamber

16 made a discernible error by taking into account factors it ought not to

17 have taken into account or by not taking into account elements that is it

18 should have taken into account. This is why we think that ground 4

19 should be dismissed.

20 On the one hand, the Trial Chamber did take into account the

21 consequences of cooperation by the appellant for himself and for the

22 members of his family. I now refer to paragraphs 3, 74, 87 and 88 of the

23 sentencing judgement. These arguments were developed by the Prosecution

24 in 3.51 of the brief. On the other hand, Trial Chambers are not legally

25 required to describe what mitigating circumstances are, substantial or

1 not. They are not legally required to describe them as substantial or

2 not but this is precisely what the Trial Chamber did in this instant

3 case, especially in paragraph 75, and I'm going to quote: "The Trial

4 Chamber granted substantial weight to the cooperation by Milan Babic with

5 the Tribunal." And this cooperation does include and entail his status

6 as a protected witness.

7 When all is said and done, the Trial Chamber did take into

8 account his status as a protected witness but on two occasions in the

9 judgement: When it looked into his cooperation with the Tribunal on the

10 one hand; and on the other hand, when it considered his personal and the

11 family circumstances. This being so, the appellant is in no position to

12 claim that the Trial Chamber did not give sufficient weight to this

13 mitigating factor.

14 With regard to ground 5, dealing with prior good character, the

15 Prosecution submits that it can be a mitigating factor but the weight

16 given to this mitigating factor is generally of a limited scope, absent

17 exceptional circumstances. In this case, the Trial Chamber in paragraph

18 91 of its sentencing judgement said the following: And I quote: "Prior

19 good character of somebody convicted cannot be taken individually as a

20 mitigating factor even though it may be so in exceptional circumstances,

21 which was not established in this case."

22 So the Prosecution submits that no great -- that the Trial

23 Chamber held that no weight can be given absent exceptional

24 circumstances. But the jurisprudence of the Tribunal only gives a

25 limited weight to this mitigating factor absent exceptional

1 circumstances. Therefore it is quite different, in as much the ruling of

2 the Trial Chamber is inconsistent with the case law of Trial Chambers in

3 the Tribunal. According to the Prosecution, this inconsistency - and of

4 course, especially the way it was applied here - is a discernible error

5 by the Trial Chamber.

6 This is why the Prosecution respectfully requests revisement --

7 revision of the judgement and reduction of the sentence against the

8 appellant on the basis of ground 5.

9 With regard to ground 6, subsequent conduct to the commission of

10 the crime, the Trial Chamber first considered in paragraph 94 of the

11 judgement, "Conduct subsequent to the crime as a factor which has been

12 accepted in other cases before the Tribunal where the convicted person

13 acted immediately after the commission of the crime to alleviate the

14 suffering of victims." Judge Schomburg mentioned this in his question

15 earlier on.

16 The Prosecution submits that the Trial Chamber considered that

17 the subsequent conduct is only relevant if he acts in such a way as to

18 alleviate the suffering of victims. In doing so the Trial Chamber

19 applied the wrong legal standards to the facts of the case. This is why

20 the Prosecution also requests the Appeals Chamber to revise the judgement

21 and to reduce the sentence handed down in the first instance.

22 Secondly, the Trial Chamber also wrongly misinterpreted the

23 sentencing judgement in the Plavsic case. Trial Chamber III looked into

24 subsequent conduct and regarded it as a mitigating factor in the light of

25 reconciliation, rather than alleviating the suffering of victims,

1 paragraph 87 of the sentencing judgement in the Plavsic case. But here,

2 in this instant case, these are parallel actions to those of Biljana

3 Plavsic that the Trial Chamber did not even mention such actions by the

4 appellant. Judge Shahabuddeen mentioned this earlier on. For instance,

5 the appellant was the only one to attempt to reconcile with the Croats;

6 he negotiated with them in order to arrive at a peaceful solution. He

7 worked, he actively worked towards peace in the region. And I shall also

8 note that the parties at Trial Chamber level did tender into evidence

9 elements to go to show it, Exhibits PS5 and 6, which is the testimony by

10 the Ambassador Galbraith in the Milosevic case and the transcript of Mr.

11 Babic's testimony in the Milosevic case.

12 This was expanded by the Prosecution in their brief it filed

13 before the Appeals Chamber in paragraph 3.64, but this evidence was also

14 before the Trial Chamber, which did not even mention such evidence,

15 whilst it had it before it.

16 The fact that the Trial Chamber neglected this evidence brings us

17 to surmise that it did not take into account this element when it handed

18 down its sentence. So the only conclusion possible is that the Trial

19 Chamber very simply ignored this evidence and did not take it into

20 account. But the Trial Chamber did recognise that parallel action by

21 Biljana Plavsic was a mitigating circumstance. The Prosecution submits

22 that the Trial Chamber made a discernible error by making a distinction

23 between the subsequent conduct by Plavsic and that of the appellant.

24 As to the tenth ground of appeal which is insufficient weight

25 granted to the totality of mitigating factors, the Prosecution submits

1 that the appellant failed to prove that the Trial Chamber abused its

2 discretion by not giving enough weight to mitigating factors, be they

3 taken individually or in toto. This is why the Prosecution requests the

4 Appeals Chamber to dismiss this tenth ground of appeal by the appellant.

5 Now more specifically to remorse, which was mentioned before by

6 Judge Schomburg. The appellant failed to prove that the Trial Chamber

7 did not give enough weight to the remorse he showed. This being said, we

8 do recognise and concede that the appellant's case is a unique one

9 because he expressed his remorse whilst the Prosecution was still in its

10 investigative phase. He's the only protected witness who is relocated

11 and he was indicted before -- after he testified in a trial.

12 With regard to the substantial and extensive cooperation, we note

13 that in paragraph 75 of the judgement, the Trial Chamber gave substantial

14 weight to his cooperation with the Tribunal in determining its sentence.

15 Now, as to voluntary surrender, the Trial Chamber expressly took

16 this into account in mitigation in paragraph 86 of the judgement and the

17 appellant failed to show that the Trial Chamber would not have given

18 enough weight to this mitigating factor.

19 This being said, the appellant did know that he was going to be

20 convicted to a term of imprisonment when he agreed to testify as a

21 Prosecution witness in the Milosevic case, and to be relocated as a

22 protected witness and this makes a clear distinction between his case and

23 that of accused who have been indicted, arrested and then later on plead

24 guilty. The chronology is quite different regarding Mr. Babic as to

25 personal and family circumstances; the Trial Chamber did take them into

1 account. I now refer to paragraphs 87 and 88 of the sentencing

2 judgement.

3 Finally, and I told you I was going to be brief, with regard to

4 the eleventh ground of appeal to which Judge Guney referred earlier on.

5 I think we have to go back to the appellant's brief in this case. What

6 was claimed here is that the Trial Chamber would have considered that the

7 appellant lied, did not tell the truth. This is not quite the -- what

8 the Trial Chamber said. It never stated that it deemed that the accused

9 did not tell the truth. It said that it was not satisfied, it said so

10 towards the end of paragraph 98, as was stated by the Defence. It said

11 that the appellant did not always fully recognise the relevance of the

12 part he played in Croatia. This is quite a different conclusion. The

13 Trial Chamber did not say that he lied. It never said that he never told

14 the truth. It is not what the Trial Chamber said.

15 I have finished and of course, I am at your disposal should you

16 have any questions.

17 JUDGE MUMBA: Yeah, there are no questions for you, Counsel.

18 Thank you for your submissions.

19 MR. McKEON: Thank you, Your Honours. I'm conscious of the time

20 and so I will be very brief on ground 2. This is the ground that claims

21 that the Trial Chamber did not give a reasoned opinion on two matters:

22 One is that it didn't resolve certain undisputed matters of fact; and

23 secondly, didn't explain the reasons why it rejected the Prosecution's

24 sentencing recommendation.

25 On the second one, second point, the only thing I want to do is

1 to point out to the Appeals Chamber that after the filing of our brief

2 there has been a development in the law on this second question and

3 that's the Dragan Nikolic appeals decision. In the Dragan Nikolic case,

4 the Appeals Chamber found that should the sentence diverge substantially

5 from the plea agreement's recommendation, the Trial Chamber must give

6 reasons for that departure. In the Nikolic case, I would point out the

7 divergence in that case was 23 years versus 15 years, as opposed to in

8 this case 13 years versus 11. So I would submit, first of all, that

9 there hasn't been a substantial deviation from the plea agreement in our

10 case. But secondly, even if there was, that the reasons given by the

11 Trial Chamber did adequately explain why they rejected the Prosecution's

12 recommendation, which is that they took a different view first of all on

13 the mitigating circumstances and they took a different view on the

14 appellant's role in the offence. So that even if the Nikolic rule does

15 apply in this particular case, in this case, as in Nikolic, that standard

16 has been met.

17 On the first part of the argument, as to whether the Trial

18 Chamber must state findings of fact on disputed matters, what I think the

19 common theme with the four areas that have been identified is it all

20 comes back to paragraph 79, where the Trial Chamber states that his

21 participation, the appellant's, was not as limited as the parties suggest

22 it was. I think if the Appeals Chamber looks at paragraph 79, you will

23 see that they are citing there two undisputed matters of fact from

24 elsewhere in the factual basis on the role that the appellant played in

25 this joint criminal enterprise. Nowhere in this paragraph do they take

1 issue with the facts earlier stated, that the -- there it was a parallel

2 structure, that Mr. Babic was influenced by propaganda, and that Mr.

3 Babic did not know at the time that they were occurring the scale and

4 extent of the crimes. There is simply in there case, Your Honours, was

5 no dispute between the parties on these particular factors and on these

6 particular facts and therefore there was no need for the Trial Chamber to

7 make findings of fact on these undisputed matters of fact.

8 With that, Your Honours, I will conclude my submissions and open

9 myself to questions, if you have any.

10 JUDGE MUMBA: There are no questions, Counsel. Thank you very

11 much for your submissions.

12 MR. McKEON: Thank you, Your Honour.

13 JUDGE MUMBA: Ten minutes reply by the appellant, Counsel.

14 MR. FOGELNEST: First I just want to -- I'm sorry, very briefly,

15 Your Honours, first I'd like to correct a factual error. My colleague

16 stated that Mr. Babic testified at trial. In fact he testified at two

17 trials, Milosevic and Krajisnik.

18 With respect to the substantial diversion, it's two years of a

19 man's life. At least. Under 11 -- I mean, I don't know how you gauge

20 substantial. Does have to 50 per cent? Is it enough if it's 15 or 20

21 per cent? It's two years of a man's life.

22 My colleague spoke to you about the Trial Chamber finding Mr.

23 Babic in a leadership role for an aggravating circumstance, because of

24 the office he held. If that reasoning holds, then anyone who is

25 indicted, who is in a high political office no matter what their role in

1 the joint criminal enterprise must be given an aggravating circumstance.

2 Is that what the law intends? Or does the law intend that a person be

3 given an aggravating circumstance for a leadership role if they in fact

4 take a leadership role in the joint criminal enterprise? And that, I

5 think, is the gravamen of the issue which I respectfully submit is

6 undecided by the Appeals Chamber. Indeed, there have been cases where

7 people in high political offices have been found to warrant the

8 aggravating circumstance, but they were also leaders of the joint

9 criminal enterprise. Here we have the unique situation where someone

10 held high political office, but by the statements in the factual basis,

11 and it's conceded, was not a leader in the joint criminal enterprise.

12 That's the issue that I believe you must deal with.

13 Thank you. Unless you have any questions.

14 JUDGE MUMBA: I see no questions, Counsel. Thank you very much

15 for your submissions.

16 Sorry, Judge Guney has some question for counsel.

17 MR. FOGELNEST: Yes, Your Honour.

18 JUDGE GUNEY: [Interpretation] Yes. I would like to seek some

19 clarification on one point, which I find difficult to understand.

20 MR. FOGELNEST: Yes, Your Honour.

21 JUDGE GUNEY: [Interpretation] I shall repeat. Yes, I would like

22 to seek some clarification on a point that I find difficult to

23 understand. In the appeals brief, you mentioned for the first time that

24 Mr. Babic attempted to alleviate or to -- the problems prevailing in

25 detention centres by using professional prison personnel, but you do not

1 explain to what extent this contributed to improving detention

2 conditions. Could you expand on this? Thank you.

3 MR. FOGELNEST: One moment, please.

4 Your Honour, it's my understanding that at some point, Mr. Babic

5 brought in new guards and was able to get rid of the brutality that was

6 in there. Am I correct, Mr. Babic? Yes? When -- I would have no

7 objection, Your Honour, if you would address this question to Mr. Babic.

8 I believe he's probably better qualified to answer it than I am, with my

9 apologies. But that is the basis of it, that he brought in new guards.

10 JUDGE GUNEY: [Interpretation] Well, as you please. Thank you.

11 MR. FOGELNEST: Thank you.

12 JUDGE MUMBA: Thank you, Counsel. There are no more questions.

13 I now turn to the appellant, Mr. Milan Babic, if he wishes to

14 address the Appeals Chamber, for ten minutes, please.

15 THE APPELLANT: [Interpretation] Thank you, Your Honour. The only

16 thing that I would like to say is that I'm very concerned for the safety

17 of my family. I spoke about this earlier at previous Status Conferences

18 and nothing has changed in that regard so far. This is the only thing

19 that is important to me; nothing else but that.

20 JUDGE MUMBA: Thank you, Mr. Milan Babic. You may sit down.

21 We have now come to the end of these proceedings. I wish to thank

22 counsel for the appellant and counsel for the Prosecution and all the

23 supporting staff for assisting the Court.

24 The Court now stands adjourned.

25 --- Whereupon the appeal proceedings

1 adjourned at 11.25 a.m.

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