Tribunal Criminal Tribunal for the Former Yugoslavia

Page 198

1 Friday, 21 July 2000

2 [Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.04 p.m.

6 JUDGE SHAHABUDDEEN: Madam Registrar, will you call the case next

7 on the list, please.

8 THE REGISTRAR: Good afternoon, Your Honours. Case number

9 IT-95-17/1-A, the Prosecutor versus Anto Furundzija.

10 JUDGE SHAHABUDDEEN: Mr. Furundzija, can you hear me?

11 THE APPELLANT: [Interpretation] Yes, Your Honour.

12 JUDGE SHAHABUDDEEN: You may sit down.

13 [The appellant sits down]

14 JUDGE SHAHABUDDEEN: The Appeals Chamber will take the appearances

15 now.

16 For the Appellant.

17 MR. MISETIC: Good afternoon, Your Honours. Luka Misetic on

18 behalf of the Appellant, Anto Furundzija.

19 JUDGE SHAHABUDDEEN: For the respondent.

20 MR. YAPA: May it please Your Honours. I am Upawansa Yapa and I

21 appear for the Prosecution with Mr. Christopher Staker and Mr. Norman

22 Farrell. Mr. George Huber is our case manager.

23 JUDGE SHAHABUDDEEN: The Appeals Chamber of this International

24 Tribunal is now delivering judgement in the case of the Prosecutor against

25 Anto Furundzija. Copies of the Judgement, which is in writing, will be

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1 made available by the Registrar to the parties towards the end of this

2 sitting. Following the practice of this Tribunal, I shall not be reading

3 out the text of the Judgement, except for the operative paragraph. Save

4 for a reading of that paragraph, I shall limit myself to introductory

5 matters.

6 Introduction

7 This Chamber is seized of an appeal by Mr. Anto Furundzija brought

8 on 22 December 1998. The appeal arises in this way.

9 The Appellant, Mr. Anto Furundzija, was indicted on three counts

10 of crimes within the jurisdiction of the Tribunal. At his Initial

11 Appearance before the Trial Chamber on 19 December 1997, he pleaded not

12 guilty to all counts of the Indictment. One of the counts was

13 subsequently withdrawn in the Amended Indictment.

14 On 10 December 1998, Trial Chamber II of this Tribunal found the

15 Appellant guilty on both remaining counts: Count 13, as a co-perpetrator

16 of torture as a violation of the laws or customs of war; and Count 14, as

17 an aider and abettor of outrages upon personal dignity, including rape, as

18 a violation of the laws or customs of war. The Trial Chamber sentenced

19 the Appellant to ten years' imprisonment for the conviction under Count 13

20 and eight years' imprisonment for the conviction under Count 14.

21 Consistent with the Trial Chamber's disposition, the Appellant is serving

22 the sentences concurrently inter se.

23 It is against the Judgement so rendered that Mr. Furundzija now

24 appeals.

25 After the appeal was brought, the Appellant filed a Post-Trial

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1 Application before the Bureau for the Disqualification of Judge Mumba,

2 Presiding Judge at Trial, and a Motion to Vacate Conviction and Sentence

3 and for a New Trial. This application was dismissed on the ground that

4 the determination as to the fairness of the trial was not within the

5 Bureau's competence.

6 The hearing of the appeal was held on 2 March 2000 and judgement

7 was reserved to a later date. A subsequent motion regarding lack of

8 jurisdiction on the part of the Trial Chamber filed by the Appellant on 8

9 March 2000 was rejected by the Appeals Chamber as being filed out of

10 time.

11 This afternoon I shall be doing three things. First, I shall

12 introduce the text of the Judgement of the Appeals Chamber. Secondly, I

13 shall give a summary of the findings of the Appeals Chamber. Finally, I

14 shall read out the disposition of the Judgement of the Appeals Chamber.

15 I reiterate that the Judgement is set out in the text to be handed

16 out. This statement is not the Judgement of the Appeals Chamber, except

17 for the reading of the disposition.

18 Structure of the Judgement

19 Today's Judgement is divided into eight sections. Section I sets

20 out the procedural background to the appeal, together with the respective

21 grounds of appeal and the reliefs sought. Section II addresses the

22 preliminary matter of the standard of review on appeal. Sections III to

23 VII of the Judgement discuss the Appellant's five grounds of appeal. The

24 final section contains the disposition.

25 I shall now go through the main sections of the Judgement.

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1 Standard of review

2 As a preliminary matter, the Appeals Chamber addresses the

3 relevant standard of review on appeal, which was raised by the parties.

4 The Appeals Chamber holds that its role is limited, pursuant to Article 25

5 of the Statute, to correcting errors of law invalidating a decision, and

6 errors of fact which have occasioned a miscarriage of justice. With

7 respect to the errors of law, an appellant bears the burden of argument,

8 but if the arguments do not support the contention, the Appeals Chamber

9 may step in and, for other reasons, find in favour of the contention that

10 there is an error of law. With respect to errors of fact, it is only

11 where the evidence relied on by the Trial Chamber could not reasonably

12 have been accepted by any reasonable person that the Appeals Chamber can

13 substitute its own finding for that of the Trial Chamber.

14 Grounds of Appeal and reliefs requested

15 The Appellant submits five grounds of appeal against the Judgement

16 of 10 December 1998. They are as follows:

17 1. That the Appellant was denied the right to a fair trial in

18 violation of the Statute.

19 2. That the evidence was insufficient to convict him on either

20 count.

21 3. That the Defence was prejudiced by the Trial Chamber's

22 improper reliance on evidence of acts that were not charged in the

23 Indictment and which the Prosecutor never identified prior to the trial as

24 part of the charges against the Appellant.

25 4. That presiding Judge Mumba should have been disqualified.

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1 5. That the sentence imposed upon him was excessive.

2 As for the reliefs sought on behalf of the Appellant, these are:

3 1. That he be acquitted or, in the alternative, that his

4 convictions be reversed or that he be granted a new trial; and

5 2. That, in the alternative, if the Appeals Chamber affirms the

6 conviction imposed by the Trial Chamber, the Appeals Chamber reduce the

7 sentence to a term that does not exceed six years, including time served

8 since the date of his original incarceration; namely, 18 December 1997.

9 The holdings of the Appeals Chamber

10 I shall now mention briefly the holdings of the Appeals Chamber.

11 As to the first ground, the Appeals Chamber holds that the

12 Appellant was not denied the right to a fair trial and that this ground

13 must fail.

14 As to the second ground, the Appeals Chamber holds that there has

15 been no showing that the factual findings by the Trial Chamber were

16 unreasonable on the basis of the evidence admitted at trial, and the

17 Appeals Chamber has not been persuaded as to the existence of any legal

18 errors which require it to intervene. Accordingly, this ground of appeal

19 must fail.

20 As to the third ground, the Appeals Chamber holds that there is no

21 requirement that the actual evidence on which the Prosecutor relies has to

22 be included in the Indictment, and that the Defence was not prejudiced by

23 the Trial Chamber's admission during trial of evidence in support of facts

24 not alleged in the Amended Indictment. Therefore, the third ground of

25 appeal must fail.

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1 As to the fourth ground, the Appeals Chamber holds that Judge

2 Mumba, the Presiding Judge in the Appellant's trial, was subjectively free

3 of bias and that there was nothing in the surrounding circumstances which

4 objectively gave rise to an appearance of bias, and that this ground

5 therefore must fail.

6 Finally, as to the fifth ground, the Appeals Chamber holds that

7 the sentence imposed upon the Appellant was not excessive and that the

8 Trial Chamber exercised its discretion in accordance with the relevant

9 provisions of the Statute and the Rules as well as the previous decisions

10 of the Tribunal. As a result, this ground must also fail.

11 The Disposition

12 I shall now read the operative paragraph of the Judgement of the

13 Appeals Chamber. It is as follows:


15 For the foregoing reasons, THE APPEALS CHAMBER, UNANIMOUSLY,

16 rejects each ground of appeal, dismisses the appeal, and affirms the

17 convictions and sentences.

18 Done in both English and French, the English text being

19 authoritative.

20 Then follow the signatures of the five Judges, dated this 21st day

21 of July, 2000, at The Hague, the Netherlands.

22 Judge Shahabuddeen, Judge Vohrah, and Judge Robinson append

23 declarations to this Judgement.

24 There ends the final part of the Judgement. I shall now ask the

25 Registrar to deliver copies of the Judgement to the parties.

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1 There being no other business, the court stands adjourned.

2 --- Whereupon the Judgement proceedings concluded

3 at 2.20 p.m.