Tribunal Criminal Tribunal for the Former Yugoslavia

Page 86

1 Thursday, 11th November, 1999

2 [Sentencing Judgement]

3 [Open session]

4 --- Upon commencing at 9.13 p.m.

5 JUDGE McDONALD: Will the deputy registrar

6 please call the case courtroom -- deputy please call

7 the case.

8 THE REGISTRAR: Good morning, Your Honours.

9 Case number IT-94-1-Tbis-R117, the Prosecutor versus

10 Dusko Tadic.

11 JUDGE McDONALD: Thank you. May I have

12 appearances of counsel, please.

13 MR. YAPA: Good morning, Your Honours. I'm

14 Upawansa Yapa, appearing with the Prosecution, with

15 Ms. Brenda Hollis and Mr. Michael Keegan.

16 JUDGE McDONALD: Thank you, sir. And for the

17 Defence.

18 MR. LIVINGSTON: John Livingston for

19 Dusko Tadic.

20 JUDGE McDONALD: Mr. Livingston, we received

21 a letter yesterday from Mr. Clegg indicating that he

22 had another court appearance and would not be able to

23 attend today but that you would appear in behalf of

24 Mr. Tadic. Is that correct?

25 MR. LIVINGSTON: Yes, that's correct.

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1 JUDGE McDONALD: Have you discussed that with

2 Mr. Tadic. ?

3 MR. LIVINGSTON: Oh, yes, it has been

4 discussed.

5 JUDGE McDONALD: And that's acceptable with

6 him?

7 MR. LIVINGSTON: Yes, absolutely.

8 JUDGE McDONALD: And he's ready to proceed?


10 JUDGE McDONALD: Thank you very much. You

11 may be seated.

12 Today, this Trial Chamber, the International

13 Tribunal for the Former Yugoslavia, issues its

14 sentencing judgement with respect to the additional

15 counts on which Dusko Tadic was found guilty by the

16 Appeals Chamber on 15th July, 1999, in the case of

17 Prosecutor versus Dusko Tadic. I will not read the

18 judgement; rather, I will read the following summary

19 and the disposition in full.

20 On May 7th, 1997, Trial Chamber II issued its

21 opinion and judgement in which it found Dusko Tadic

22 guilty on 9 counts, guilty in part on 2 counts, and not

23 guilty on 20 counts. With respect to 11 of those

24 counts, the Trial Chamber found, by majority, that

25 Article 2 of the Statute of the International Tribunal

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1 was inapplicable since it had not been proved that the

2 victims of the charges brought under this Article were

3 protected persons within the meaning of the Geneva

4 Conventions. With respect to the charges that formed

5 the basis of Counts 29, 30, and 31, Trial Chamber II

6 found that the evidence did not support a finding of

7 guilt beyond reasonable doubt.

8 Pursuant to appeals by both the Office of the

9 Prosecutor and the Defence counsel for Dusko Tadic,

10 against Trial Chamber II's opinion and judgement, the

11 Appeals Chamber entered its judgement on July 15th,

12 1999. It found that the victims referred to in

13 Counts 8, 9, 12, 15, 21, 29, and 32 of the amended

14 indictment were protected persons as required under the

15 applicable provisions of the Geneva Convention. In

16 addition, the Appeals Chamber concluded that the

17 requisite elements of the underlying offences charged

18 in Counts 29, 30, and 31 were satisfied beyond a

19 reasonable doubt. Accordingly, the Appeals Chamber

20 found Dusko Tadic guilty of these nine counts.

21 The Appeals Chamber initially deferred

22 sentencing on the additional counts to a later stage

23 and subsequently remitted sentencing to a Trial Chamber

24 to be designated by the President of the International

25 Tribunal. By order of the President, this Trial

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1 Chamber, composed of myself, Judge Vohrah, and Judge

2 Robinson, became responsible for determining the

3 appropriate sentences to be imposed on Dusko Tadic in

4 relation to Counts 8, 9, 12, 15, 21, 29, 30, 31, and

5 32.

6 The parties made submissions at an oral

7 hearing on October 15, 1999. The parties have also

8 tendered written submissions. In respect of Counts 29,

9 30, and 31, which charge Dusko Tadic with the killing

10 of five men in Jaskici, the Prosecution recommended a

11 sentence of an additional 15 years' imprisonment for

12 each count. The Prosecution left it for the Trial

13 Chamber to determine whether the additional sentences

14 of 15 years should be served consecutively or

15 concurrently inter se, but contended that they should

16 be served in addition to the existing sentence of

17 20 years' imprisonment. The Defence submitted that the

18 appropriate sentence for these counts was 15 years'

19 imprisonment and recommended that the sentences be

20 ordered to run concurrently.

21 In determining the appropriate sentence, the

22 Trial Chamber has considered all the submissions made

23 by the parties and the sentencing guidelines provided

24 in Article 24 of the Statute and Rule 101 of the Rules

25 of Procedure and Evidence. The Trial Chamber initially

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1 notes that the unique mandate of the International

2 Tribunal of putting an end to widespread violations of

3 international humanitarian law and contributing to the

4 restoration and maintenance of peace in the former

5 Yugoslavia warrants particular consideration in respect

6 of the purpose of sentencing. In the opinion of the

7 Trial Chamber, retribution and deterrence serve as the

8 primary purposes of sentence.

9 Accordingly, the Trial Chamber has, in

10 opposing the appropriate sentence, taken these purposes

11 into account as one of the relevant factors. In

12 respect of Article 24, paragraph 1 of the Statute, and

13 sub-Rule 101(B)(iii) of the Rules, the Trial Chamber

14 notes that the general sentencing practice of the

15 courts in the former Yugoslavia does not delimit the

16 sources upon which the Trial Chamber may rely in

17 reaching its determination of the appropriate sentence

18 for a convicted person. Rather, the Trial Chamber is

19 only required to have recourse to that sentencing

20 practice and may properly consider other factors, such

21 as those set out in Article 24 of the Statute and

22 Rule 101, as well as factors pertaining to the special

23 nature and purpose of the International Tribunal.

24 The Trial Chamber takes the view that in

25 respect of crimes which, in the former Yugoslavia,

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1 could have attracted the death penalty, it may, as the

2 maximum, impose a sentence of imprisonment for the

3 remainder of a convicted person's life. The Trial

4 Chamber has further taken note of certain circumstances

5 relevant to sentencing for each of the crimes charged

6 in the counts for which Dusko Tadic now stands to be

7 sentenced. These circumstances are set out in the

8 written sentencing judgement and will not be repeated

9 here. The Trial Chamber, however, would like to

10 emphasise that Dusko Tadic, in respect of Counts 29,

11 30, and 31 was convicted by the Appeals Chamber for his

12 participation, and I'll quote:

13 "In the killings of the five men in Jaskici

14 which were committed during the armed conflict as part

15 of a widespread or systematic attack on a civilian

16 population."

17 Sub-Rule 101(B)(i) of the Rules provides that

18 the Trial Chamber shall take into account any

19 aggravating factors in determining the appropriate

20 sentence. In this context, the Trial Chamber has

21 considered inter alia Dusko Tadic's awareness of and

22 support for the attack on the non-Serb civilian

23 population of opstina Prijedor by Bosnian Serb forces

24 and the Republika Srpska authorities operating in that

25 area.

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1 As to mitigating circumstances, which the

2 Trial Chamber is required to take into account,

3 pursuant to sub-Rule 101(B)(ii), the Defence submits

4 that Dusko Tadic is entitled to credit in the form of

5 reduction of sentence as he has demonstrated

6 substantial cooperation with the Prosecution by

7 providing it with material relating to certain events

8 in opstina Prijedor. Having conducted an independent

9 review of the relevant material, the Trial Chamber has

10 found that the material does not amount to evidence of

11 substantial cooperation within the meaning of

12 sub-Rule 101(B)(ii). Therefore, the Trial Chamber has

13 not taken this matter into account in the determination

14 of the sentence.

15 The Trial Chamber has, however, taken into

16 account the report on Dusko Tadic's conduct while in

17 detention at the United Nations Detention Unit,

18 according to which, Dusko Tadic, and I will quote:

19 "During the last 18 months has behaved as a

20 model detainee."

21 In assessing the impact of Dusko Tadic's

22 personal circumstances on the determination of the

23 appropriate sentence, the Trial Chamber has focused on

24 Dusko Tadic's personality, character, family, and

25 social background, and taken into account the effect of

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1 the length of sentence on Dusko Tadic's family.

2 Furthermore, in imposing sentence in respect

3 of the offence charged as a crime against humanity, the

4 Trial Chamber is bound by the pronouncement in the

5 Erdemovic Appeals Judgement that a prohibited act

6 committed as part of a crime against humanity; that is,

7 with an awareness that the act formed part of a

8 widespread or systematic attack on a civilian

9 population is, all else being equal, a more serious

10 offence than an ordinary war crime and should

11 ordinarily entail a heavier penalty than if it were

12 proceeded upon on the basis that it were a war crime.

13 Finally, the Trial Chamber notes that Count 8

14 of the amended indictment charged Dusko Tadic

15 alternatively with two distinct offences, namely

16 torture or inhuman treatment, and that the Appeals

17 Chamber, in convicting Dusko Tadic on this count, did

18 not specify in respect of which of the two offences it

19 found him guilty. As a consequence, an ambiguity

20 undoubtedly exists.

21 Under these circumstances, the Trial Chamber

22 has applied the principle of in dubio pro reo which

23 states that any ambiguity must accrue to the

24 defendant's advantage and has imposed sentence in

25 respect of the lesser offence of inhuman treatment.

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1 I will now read the disposition of the Trial

2 Chamber in full.

3 Mr. Tadic, will you please stand.

4 For the foregoing reasons, the Trial Chamber,

5 having considered all of the evidence and the arguments

6 in light of the Statute and the Rules, unanimously

7 imposes on Dusko Tadic the following penalties:

8 Counts 8 and 9: For inhuman treatment as a

9 grave breach, the Trial Chamber sentences Dusko Tadic

10 to nine years' imprisonment. For wilfully causing

11 great suffering or serious injury to body or health as

12 a grave breach, the Trial Chamber sentences Dusko Tadic

13 to nine years' imprisonment;

14 Count 12: For wilfully causing great

15 suffering or serious injury to body or health as a

16 grave breach, the Trial Chamber sentences Dusko Tadic

17 to six years' imprisonment;

18 Count 15: For wilfully causing great

19 suffering or serious injury to body or health as a

20 grave breach, the Trial Chamber sentences Dusko Tadic

21 to six years' imprisonment;

22 Count 21: For wilfully causing great

23 suffering or serious injury to body or health as a

24 grave breach, the Trial Chamber sentences Dusko Tadic

25 to six years' imprisonment;

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1 Counts 29, 30, and 31: For wilful killing as

2 a grave breach, the Trial Chamber sentences Dusko Tadic

3 to twenty-four years' imprisonment. For murder as a

4 violation of the Laws or Customs of War, the Trial

5 Chamber sentences Dusko Tadic to twenty-four years'

6 imprisonment. For murder as a crime against humanity,

7 the Trial Chamber sentences Dusko Tadic to twenty-five

8 years' imprisonment;

9 Count 32: For wilfully causing great

10 suffering or serious injury to body or health as a

11 grave breach, the Trial Chamber sentences Dusko Tadic

12 to nine years' imprisonment;

13 Concurrence of sentences: Each of the

14 sentences is to be served concurrently, both inter se

15 and in relation to each of the sentences imposed in the

16 sentencing judgement of 14 July 1997.

17 Credit for time served: In accordance with

18 sub-Rule 101(D), Dusko Tadic is entitled to credit for

19 time for which he was detained in custody pending

20 surrender to the Tribunal or pending trial or appeal.

21 Although he was arrested on February 12th, 1994, his

22 detention pending surrender to the International

23 Tribunal did not commence until November 8th, 1994,

24 when Trial Chamber I issued a formal request to the

25 government of the Federal Republic of Germany to defer

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1 to the jurisdiction of the International Tribunal.

2 Consequently, Dusko Tadic is entitled to credit for

3 five years and three days of time served in relation to

4 the sentence imposed by the Trial Chamber, as date of

5 this sentencing judgement, together with such

6 additional time as he may serve pending the

7 determination of any appeal.

8 Judge Patrick L. Robinson appends a separate

9 opinion to this sentencing judgement.

10 Are there additional matters that need to be

11 considered?

12 Mr. Tadic, you may sit.

13 Prosecution? Defence? Fine.

14 We are adjourned. Thank you.

15 --- Whereupon the hearing adjourned at

16 9.30 a.m.