1 - Prosecutor v. Goran Jelisic,
Case No.: IT-95-10-A.
2 - The initial
indictment was confirmed on 21 July 1995. At the request of the prosecution,
all the charges based on Article 2 of the Statute, grave breaches of the Geneva
Conventions of 1949, were withdrawn and an amended indictment was filed on 13
May 1998.
3 - Agreed factual
basis for guilty pleas to be entered by Goran Jelisic, 9 September 1998.
4 - Second amended
indictment against Goran Jelisic and Ranko Cesic, 19 October 1998, paras 14-36.
5 - Provisional transcript of the trial
proceedings in Prosecutor v. Goran Jelisic, Case No.: IT-95-10-T (“the
trial transcript”), 18 March 1999, pp. 275-280.
6 - Ibid., p. 280.
7 - Ibid., p. 286.
8 - Ibid., 22 September
1999, p. 2311 (closed session).
9 - Prosecutor’s
motion to be heard, 15 October 1999.
10 - Trial transcript,
19 October 1999, pp. 2321-2342.
11 - Ibid., pp.
2328-2330.
12 - Prosecutor v. Goran Jelisic,
Case No.: IT-95-10-T, Judgement, 14 December 1999 (English version filed 14 January
2001), para. 139, p. 43.
13 - Prosecution’s
notice of appeal, 21 October 1999.
14 - Notice of
cross-appeal, 26 October 1999.
15 - Notice of
appeal, 15 December 1999.
16 - Prosecution
motion for clarification of the right of the appellant Goran Jelisic to file
two notices of appeal and for a scheduling order in relation to the appeal,
20 December 2000. On 21 January 2000, the cross-appellant filed: Response to
prosecution motion filed 20th December 1999. On 28 January 2000, the prosecution
filed Prosecution reply to defence’s Response to prosecution motion filed 20th
December 1999. The prosecution also requested that the Appeals Chamber classify
the time limits with regard to Rule 111 of the Rules. In its scheduling order
of 14 January 2000, the Appeals Chamber ordered that the time limit for the
filing of the briefs pursuant to Rule 111 should commence from 15 December 1999,
the day following the pronouncement of the written Judgement. On 7 March 2000,
the Appeals Chamber ordered that the briefs in relation to the cross-appellant’s
appeal be filed by 15 May 2000. Following subsequent decisions this deadline
was varied.
17 - Order, 21
March 2000.
18 - Prosecutor’s
appeal brief (public redacted version), 14 July 2000. On the same date a confidential
version was filed: Prosecutor’s appeal brief (confidential), as well as the
book of authorities for the prosecution’s appeal brief.
19 - Reply to
prosecution appeal brief, 14 August 2000.
20 - Prosecutor’s
brief in reply (public redacted version), 29 August 2000. On the same date a
confidential version was filed: Prosecutor’s brief in reply (confidential).
21 - On 3 May
2000, the cross-appellant filed: Motion for extension of time, whereby he requested
an extension of time for filing the cross-appellant’s brief due to a delay in
providing the cross-appellant’s counsel with a full set of audiotapes from the
Trial Chamber proceedings in a language he could understand. On 11 May 2000,
the Appeals Chamber granted an extension of time until 10 July 2000. On 7 July
2000, the cross-appellant requested an extension of time for the filing of his
brief until 7 August 2000. On 17 July 2000, the Appeals Chamber issued: Order
for provisional extension of time, which provisionally extended the time for
filing of the cross-appellant’s brief until 21 July 2000, in order to enable
the Appeals Chamber to deliberate on the 7 July motion. On 19 July 2000, in:
“Decision on urgent motion requesting extension of time,” the 7 July motion
was granted, as the recently appointed legal assistant needed more time to identify
passages of the trial proceedings to be annexed to the appellant’s brief. The
filing time was extended to 7 August 2000. On 11 September 2000, the cross-appellant
requested an extension of time for the filing of the response to the prosecution’s
brief. On 15 September 2000, in: “Decision on motion requesting extension of
time,” the Appeals Chamber found that, by themselves, the grounds raised by
the cross-appellant did not justify an extension of time. However, with regard
to the special circumstances of the case, it found that it was appropriate to
allow further time to enable counsel to explain the case to the cross-appellant.
Hence, the time limit was extended to 6 October 2000.
22 - Appellant’s
brief on appeal against sentence (confidential), 7 August 2000. A public redacted
version was filed on 2 March 2001, upon the request of the Appeals Chamber in
an order dated 30 January 2001, which was reiterated during the hearing on appeal,
appeal transcript, 23 February 2001, p. 246.
23 - Respondent’s
brief of the prosecution (confidential), 6 September 2000. On 15 February 2001,
a public redacted version was filed.
24 - Appellant’s
reply to prosecutor’s respondent’s brief (confidential), 6 October 2000. A public
redacted version was filed on 2 March 2001.
25 - Decision
by the Registrar, 5 February 2001.
26 - Appellant’s
skeleton submissions, 16 February 2001.
27 - Appeal transcript,
22 February 2001, p. 37 and 23 February 2001, pp. 198-199.
28 - The prosecution’s
grounds of appeal were set out in the prosecution’s brief and prosecution’s
reply, as well as during the hearing on appeal.
29 - Prosecution’s
brief, para. 2.1, p. 9.
30 - Prosecution’s
brief, para. 3.5, p. 27.
31 - Ibid., para.
4.6, p. 53.
32 - Ibid., para.
5.7, p. 86.
33 - Ibid., para.
5.6(a), p. 85. Appeal transcript, 22 February 2001, p. 9.
34 - Skeleton
argument, para. 6.1, p. 6.
35 - Appeal transcript,
23 February 2001, p. 198.
36 - Ibid., pp.
164-165.
37 - These were
as follows: a) the factual basis for the Trial Chamber’s conclusion with regard
to the nature and seriousness of the offences was based upon a document which
the Trial Chamber erroneously concluded had been agreed to between the parties;
b) the Trial Chamber’s Judgement included an unauthorised double conviction
on counts 16-17 - killing of Huso and Smajil Zahirovic - while the indictment
alleged that “he shot and killed one of them”; c) the Trial Chamber reversed
the burden of proof; d) the cross-appellant was given no credit for his guilty
plea, for having made early admissions to the offences charged and for his co-operation
with the prosecution; e) the Trial Chamber failed properly to consider the defence
case on sentence; f) the Trial Chamber failed properly to consider the sentencing
practice in the former Yugoslavia; g) the Trial Chamber made inappropriate use
of medical evidence; h) the 40 years’ sentence reflects a disparity between
this case and other cases before the Tribunals; and i) the Trial Chamber inappropriately
passed a single sentence, cross-appellant’s brief, pp. 114-145.
38 - Appeal transcript,
22 February 2001, p. 37, and 23 February 2001, pp. 198-199.
39 - Skeleton
argument, para. 6.2, p. 6.
40 - Prosecutor v. Zejnil Delalic
et al, Case No.: IT-96-21-A, Judgement, 20 February 2001 (“the Delalic
appeal judgement”).
41 - Appeal transcript, 22 February
2001, pp. 32-35 and 245-246, referring to the Delalic appeal judgement.
42 - Ibid., pp.
33-35. The Appeals Chamber decided the prosecution would have 10 days to respond
and the cross-appellant would have 10 days from the filing of the response to
file his reply, appeal transcript, 22 February 2001, p. 35 and 23 February 2001,
pp. 245-246. Subsequently, on 6 March 2001, the “Prosecution response to the
oral motion and the additional ground of appeal of Goran Jelisic regarding cumulative
convictions” and the “Appellant’s written submission in support of the oral
motion to quash cumulative convictions” were filed.
43 - The defence’s
brief for the presentation of the additional evidence, 8 September 2000.
44 - Prosecution
response to the defence’s brief for the presentation of the additional evidence,
18 September 2000.
45 - Decision
on request to admit additional evidence, 15 November 2000.
46 - General practice
of courts in the former Yugoslavia and the newly emerged states on the territory
of the former Yugoslavia in determining prison sentences, 7 March 2001.
47 - Prosecution
objection to the admission of document filed on 7 March 2001 on behalf of Goran
Jelesic (sic(, 9 March 2001.
48 - Evidence may also be admitted
in certain circumstances under Rule 89 of the Rules, see for example Prosecutor
v. Zejnil Delalic et al, Case No.: IT-96-21-A, Order on motion for the extension
of the time-limit and admission of additional evidence, 31 May 2000, and Order
on motion of Esad Landzo to admit as additional evidence the opinion of Francisco
Villalobos Brenes, 14 February 2000, Prosecutor v. Zoran Kupreskic et al,
Case No.: IT-95-16-A, Redacted Decisions of the Appeals Chamber of 26 February
2001 and 11 April 2001, 30 May 2001. See equivalent, Jean-Paul Akayesu v. The
Prosecutor, Case No.: ICTR-96-4-A, Decision (on the consolidation or summarization
of motions not yet disposed of), 22 August 2000, applying Rule 89 of the ICTR
Rules.
49 - Appeal transcript,
23 February 2001, pp. 190-191.
50 - Prosecution’s
brief, para. 2.1, p. 9.
51 - Judgement,
para. 16, p. 4.
52 - Trial transcript, 19 October
1999, p. 2330. (Audi alteram partem means to hear the other side.)
53 - See generally R. v. Barking
and Dagenham Justices, ex parte Director of Public Prosecutions [1995]
Crim LR 953 (“Barking case”), and Director of Public Prosecution v.
Cosier, Q.B.D., 5 April 2000 (“Cosier case”).
54 - See Cosier case, supra.
55 - See Cosier case, supra.
For a more general observation on the importance of not deciding without first
hearing counsel’s arguments, see Judge ad hoc Barwick’s dissenting opinion
in Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 442.
56 - See Barking and Cosier
cases, supra.
57 - Skeleton
argument, paras 2.1-2.4, pp. 2-3.
58 - Prosecution’s
brief, para. 3.5, p. 27.
59 - Judgement,
para. 108, pp. 33-34.
60 - Response
to prosecution’s brief, pp. A-1135-1136 as given by the Registry.
61 - Prosecutor v. Dario Kordic
and Mario Cerkez, Case No.:IT-95-14/2-T, Decision on defence motions for judgement
of acquittal, 6 April 2000, para. 9, p. 5.
62 - Prosecutor v. Dragoljub Kunarac
et al, Case Nos.: IT-96-23-T, IT-23-1-T, Decision on motion for acquittal,
3 July 2000 (“the Kunarac decision”), para. 3, p. 3 (emphasis in original).
And see, Ibid., paras 7 - 8, pp. 4-5.
63 - Prosecutor v. Miroslav Kvocka
et al, Case No.: IT-98-30/1-T, Decision on defence motions for acquittal,
15 December 2000, (“the Kvocka decision”) para. 12.
64 - R. v. Galbraith, 73 Cr.
App. R. 124, at p. 127, C.A., per Lord Lane, C.J.
65 - As to the permissibility of drawing
inferences at the close of the case for the prosecution, see Monteleone v.
The Queen [1987] 2 S.C.R. 154, in which McIntyre J., for the court, said:
“It is not for the trial judge to draw inferences of fact from the evidence before
him”. And see the reference to “inferences” in Her Majesty v. Al Megrahi and
Another, infra. Cf. Kvocka decision, para. 12, p. 5, in which
the Trial Chamber said: “The Chamber prefers an objective standard, under which
it is entitled at this stage to apply any reasonable inferences and presumption
or legal theories when reviewing the Prosecution evidence”. The issue thus posed
is not passed upon here.
66 - Delalic appeal judgement,
para. 434, p. 148 (emphasis in original). Or, as it was correctly put by Trial
Chamber II in the Kunarac decision, para. 10, p. 6, the “prosecution needs only
to show that there is evidence upon which a reasonable tribunal of fact could
convict, not that the Trial Chamber itself should convict” (emphasis in
original).
67 - According to MacKinnon A.C.J.O.
in R. v. Syms (1979) 47 C.C.C. (2d) 114 at 117, a trial judge should withdraw
a case from the jury only where “the evidence was so slight or tenuous that it
would be incapable of supporting a verdict of guilty”.
68 - Judgement,
para. 98, p. 31.
69 - Ibid., para.
108, pp. 33-34.
70 - Skeleton
argument, para. 3.1, p. 3.
71 - Ibid., para.
3.2, p. 3.
72 - Prosecution’s
brief, para. 5.5, p. 85.
73 - Ibid., para.
4.22, p. 59.
74 - Ibid., states
“[i]n German law, for example, the term ‘Absicht’ is used to capture what is
often being referred to as dolus specialis in literature, whilst Norwegian law
uses the term ‘hensikt’”.
75 - Ibid., para.
4.21, p. 58.
76 - This proposition
does not contain any element of probability. It refers to knowledge of the actual
destruction, in whole or in part. Appeal transcript, 22 February 2001, pp. 68-69.
77 - Prosecution’s
brief, para. 4.9, p. 54. The specification that category iii) only relates to
conduct as an aider or abettor was made during oral argument, see appeal transcript,
22 February 2001, pp. 69 and 77.
78 - Cross-appellant’s
reply, pp. 1135-1134. The Appeals Chamber notes that the respondent during oral
argument addressed this issue more generally and did not elaborate on the degree
of intent required. Appeal transcript, 22 February 2001, pp. 119-130.
79 - United Nations
Treaty Series, vol. 78, p. 277, General Assembly Resolution 260A (III).
80 - See for example: Prosecutor
v. Alfred Musema, Case No.: ICTR-96-13-T, Judgement and sentence, 27 January
2000, paras 164-167, p. 56-58, which refer to specific intent and dolus specialis
interchangeably; Prosecutor v. Jean-Paul Akayesu, Case No.: ICTR-96-4-T,
2 September 1998, Judgement, para. 498, which refers to genocidal intent. The
International Law Commission refers to specific intent (A/51/10), p. 87.
81 - The Appeals
Chamber does not attribute to this term any meaning it might carry in a national
jurisdiction.
82 - The Appeals
Chamber notes it is speaking here solely in the context of the commission of
genocide within the meaning of Article 4 of the Statute.
83 - This was also held in the oral
decision by the Appeals Chamber for the ICTR in Obed Ruzindana and Clément
Kayishema v. Prosecutor, Case No.: ICTR-95-1-A, 1 June 2001.
84 - Prosecutor v. Dusko Tadic,
Case No.: IT-95-1-A, Judgement, 15 July 1999 (“the Tadic appeal judgement”),
para. 269, p. 120.
85 - Prosecution
brief, paras 4.6 and 4.8, pp. 53-54.
86 - Judgement,
para. 108, pp. 33-34.
87 - Appeal transcript,
22 February 2001, pp. 94-97.
88 - Tadic appeal judgement,
para. 64, pp. 27-28.
89 - Appeal transcript,
22 February 2001, p. 144.
90 - Judgement,
paras 73-75 and 77, pp. 23-24 (footnotes excluded).
91 - Ibid., para.
108, p. 33.
92 - Ibid., para.
105, p. 33.
93 - Ibid., para.
106, p. 33.
94 - Ibid., para.
107, p. 33.
95 - Ibid., para.
102, p. 32.
96 - Annex A,
filed confidentially as an annex to the confidential version of the prosecution’s
brief.
97 - Trial transcript,
13 September 1999 (witness M), p. 1462.
98 - Annex A,
referring to Witness I in trial transcript, 7 September 1999, p. 1112.
99 - Ibid..
100 - Trial transcript,
1 December 1998, p. 81.
101 - Trial transcript,
9 September 1999, p. 1306, 14 September 1999, p. 1556 and exhibit 66 (transcript
of interview with the respondent on 4 June 1998), p. 49.
102 - Judgement,
para. 107, p. 33.
103 - Rule 67
of the Rules. With regard to diminished mental responsibility, see the Appeals
Chamber’s finding in Delalic appeal judgement, paras 580-590, pp. 200-204.
104 - Cf. Rigby v. Woodward
[1957] 1 WLR 250, and Griffith v. Jenkins and another, (1991) 156 JP 29.
105 - For a solution of this kind,
see inter alia, Cosier case, Barking case. See also United
States v. Hooper, 432 F.2nd 604, 139 U.S.App.D.C.171 (1970), United States
v. Lindsey, 47 F.3d 440, 310 U.S. App.D.C.300 (1995).
106 - Second
amended indictment, para. 14, p. 3 stated: “[…] Goran JELISIC personally killed
the victims described in paragraphs 16-25, 30 and 33 (the killings the cross-appellant
pleaded guilty to(. By these actions, Goran JELISIC committed or aided and abetted:
Count 1: GENOCIDE, a crime recognized by Article 4(2)(a) of the Tribunal Statute.”
107 - Prosecutor’s
pre-trial brief, 19 November 1998, para. 2.2, p. 4 stated: “In perpetrating
the acts outlined in the indictment, the accused committed genocide by killing
members of the group, contrary to Article 4(2)(a) of the Statute”.
108 - Judgement,
para. 140, p. 43.
109 - Delalic appeal judgement,
para. 412, p. 138.
110 - Ibid.,
para. 413, p. 138.
111 - Appeal
transcript, 22 February 2001, p. 33.
112 - Also applied in Prosecutor
v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T & IT-96-23/1-T, Judgement,
22 February 2001, para. 556, pp. 198-199.
113 - Judgement,
para. 130, p. 40.
114 - Ibid..
115 - Ibid.,
paras 131 and 133, p. 40.
116 - Cross-appellant’s
reply, p. 12. Appeal transcript, 23 February 2001, p. 241.
117 - Cross-appellant’s
reply, pp. 17-18.
118 - Cross-appellant’s
brief, pp. 121-123, skeleton argument, para. 6.2(v), p. 6, appeal transcript,
23 February 2001, p. 241.
119 - Agreed
factual basis, p. 4.
120 - Delalic appeal judgement,
para. 771, p. 275.
121 - Judgement,
para 137, p. 41.
122 - Prosecutor v. Zlatko Aleksovski,
Case No.: IT-95-14/1-A, Judgement, 24 March 2000 (“the Aleksovski appeal
judgement”), para. 182, p. 75.
123 - See generally Prosecutor
v. Anto Furundzija, Case No.: IT-95-17/1-A, Judgement, 21 July 2000, (“the
Furundzija appeal judgement”), paras 236-239, pp. 73-74, and Delalic
appeal judgement, paras 715-718, pp. 252-253.
124 - Appeal
transcript, 23 February 2001, pp. 165-168.
125 - Ibid.,
pp. 165, 178-180.
126 - Ibid.,
pp. 165-168. Cross-appellant’s reply pp. 24-29.
127 - The Appeals
Chamber understands, from the skeleton argument and the oral hearing, the cross-appellant
to be advancing these factors.
128 - Appeal
transcript, 23 February 2001, pp. 176-177, 183-185.
129 - Cross-appellant’s
reply, pp. 23-24. Appeal transcript, 23 February 2001, pp. 173-175, 189-190.
130 - Appeal
transcript, 23 February 2001, p. 166.
131 - Delalic appeal judgement,
para. 725, p. 256. See also Furundzija appeal judgement, para. 239, p.
74, Prosecutor v. Serushago, Case No.: ICTR-98-39-S, Sentence, 5 February
1999, para. 32, Aleksovski appeal judgement, para. 187, pp. 77-78 and Prosecutor
v. Dusko Tadic, Case No.: IT-94-1-A and IT-94-1-Abis, Judgement in
sentencing appeals, 26 January 2000 (“the Tadic sentencing appeal”), paras
20-22, pp. 12-13.
132 - Furundzija appeal judgement,
para. 250, p. 77, also referred to in Delalic appeal judgement, para. 720,
p 254.
133 - Delalic appeal judgement,
para. 731, pp. 258-259.
134 - Aleksovski appeal judgement,
para. 182, p. 75.
135 - Prosecutor v. Zoran Kupreskic
et al., Case No.: IT-95-16-T, Judgement, 14 January 2000, (“the Kupreskic
trial judgement”), para. 852, p. 318.
136 - Judgement,
para. 127, p. 39.
137 - Appeal
transcript, 23 February 2001, pp. 176-177.
138 - Ibid.,
pp. 219-220, citing the Report by Doctor van den Bussche of 8 November 1999
(“the report”), p. 17. Notice of filing, 15 November 1999, included the report.
139 - Report,
pp. 10, 17. The Trial Chamber referred to p. 22 of the French translation. It
corresponds to p. 17 of the English translation, which has not been properly
reflected in the English translation of the Judgement.
140 - Appeal
transcript, 23 February 2001, pp. 176-177.
141 - Ibid.,
pp. 173-175.
142 - Judgement,
para. 95 (footnotes omitted).
143 - Appeal
transcript, 23 February 2001, pp. 216-217.
144 - Ibid.,
p. 217.
145 - Tadic sentencing appeal,
paras 55-56, pp. 24-25.
146 - Judgement,
para. 133, p. 40.
147 - Cross-appellant’s
brief, pp. 139-141 (emphasis in original).
148 - Aleksovski appeal judgement,
para. 178, p. 73. See also inter alia, Kupreskic trial judgement,
14 January 2000, para. 841, p. 314, Prosecutor v. Anto Furundzija, Case
No.: IT-95-17/1-T, Judgement, 10 December 1998 (“the Furundzija trial judgement”),
para. 240, pp. 91-92, Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-T,
3 March 2000 (“the Blaskic trial judgement”), para. 760, pp. 248-249.
149 - Delalic appeal judgement,
para. 814, p. 292.
150 - Cross-appellant’s brief, pp.
129-138. He refers specifically to Prosecutor v. Drazen Erdemovic, Case
No.: IT-96-22-Tbis, Sentencing Judgement, 5 March 1998, and Prosecutor
v. Georges Ruggiu, Case No.: ICTR-97-32-I, Judgement and Sentence, 1 June
2000.
151 - Appeal
transcript, 23 February 2001, p. 175.
152 - Ibid..
153 - Judgement,
para. 127, p. 39 (footnote omitted).
154 - Appeal
transcript, 23 February 2001, pp. 193-195 (closed session).
155 - Judgement,
para. 127, p. 39.
156 - Skeleton
argument, para. 6.2(iv), p. 6.
157 - Appeal
transcript, 23 February 2001, p. 177.
158 - Ibid.. Counsel cited Landzo
(aged 19), Erdemovic (aged 23) and Furundzija (aged 23) in support
as well as Blaskic trial judgement, para. 778, p. 255, and Furundzija
trial judgement, para. 284, p. 107.
159 - Judgement,
para. 124, p. 38.