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prosecution, all the charges based on Article 2 of the Statute, grave breaches of the Geneva Conventions of 1949, were withdrawn and an amended indictment was filed on 13 May 1998.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.