Tribunal Criminal Tribunal for the Former Yugoslavia

Page 367

1 Tuesday, 30 August 2005

2 [Appeals Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.15 p.m.

6 JUDGE WEINBERG DE ROCA: Good afternoon to the interpreters, to

7 counsel for the Prosecution and Defence. Good afternoon, Mr. Jokic, and

8 the staff of the court management support section.

9 Mr. Frejabue, would you read the case, please.

10 THE REGISTRAR: Yes, thank you, Your Honour. Case number

11 IT-01-42/1-A, the Prosecutor versus Miodrag Jokic.

12 JUDGE WEINBERG DE ROCA: Thank you. I will now ask for the

13 appearances of the parties.

14 For the Defence, please.

15 MR. NIKOLIC: [Interpretation] Good afternoon, Your Honours. Good

16 afternoon, colleagues from the Prosecution. Mr. O'Sullivan, Ms. Nikolic,

17 and myself, Zarko Nikolic, we are representing today the Defence of

18 Admiral Mr. Jokic.

19 JUDGE WEINBERG DE ROCA: Thank you very much.

20 Appearances for the Prosecution, please.

21 MR. FARRELL: Good afternoon, Your Honours. Good afternoon to my

22 learned colleagues. Norman Farrell and Marie-Ursula Kind appearing

23 together with Susan Grogan our case manager. Thank you.

24 JUDGE WEINBERG DE ROCA: Thank you very much.

25 As the registrar announced, the case on our agenda is The

Page 368

1 Prosecutor versus Miodrag Jokic. In accordance with the Scheduling Order

2 issued on 19 July 2005 today the Appeals Chamber will deliver its

3 judgement on sentencing appeal. Mr. Miodrag Jokic has appealed against

4 the sentencing judgement issued by Trial Chamber I of this International

5 Tribunal on 18 March 2004. The Prosecution has not appealed the

6 sentencing judgement.

7 This case relates to events which took place in Croatia, where

8 forces of the Yugoslav People's Army under command of, among others,

9 Miodrag Jokic shelled the Old Town of Dubrovnik from the early hours of

10 6 December 1991 until late that day. The Trial Chamber accepted the

11 Prosecution's position that the attack was not ordered by the Appellant

12 and that he had knowledge of the unlawful shelling and failed to prevent,

13 mitigate, stop, or punish the shelling. As a result of the shelling, two

14 civilians were killed and three civilians were wounded, numerous buildings

15 were destroyed, including institutions dedicated to religion, charity,

16 education, the arts and sciences, and historic monuments.

17 On the 27th August 2003, Miodrag Jokic pleaded guilty to the

18 Second Amended Indictment and the Trial Chamber entered a conviction

19 against him for six counts of violations of the laws or customs of war

20 pursuant to Article 3 of the Statute, including Count 1, murder; Count 2,

21 cruel treatment; Count 3, the unlawful attack on civilians; Count 4,

22 devastation not justified by military necessity; Count 5, the unlawful

23 attack on civilian objects; and Count 6, the destruction or willful damage

24 done to institutions dedicated to religion, charity, and education, the

25 arts and sciences, historic monuments, and works of art and science.

Page 369

1 On 18 March, 2004, the Trial Chamber sentenced Mr. Jokic to seven

2 years of imprisonment. Mr. Jokic appealed his sentence on 16 April 2004

3 and the appeal hearing took place on 26 April 2005. Following the

4 practice of the International Tribunal, I will not read out the text of

5 the Judgement except for the disposition. Instead, I will summarise the

6 issues on this appeal and the findings of the Appeals Chamber. I

7 emphasise that this summary is not part of the written judgement which is

8 the only authoritative account of the Appeals Chamber's rulings and

9 reasons. Copies of the written Judgement will be made available to the

10 parties and to the public at the conclusion of this hearing. I will not

11 elaborate on the standard of review on appeal and the relevant provisions

12 on sentencing since I have already addressed that during my opening

13 statement at the appeal hearing.

14 The Appellant had initially raised seven grounds of appeal but on

15 30 June 2004 he withdrew his fourth ground of appeal. I will briefly

16 address the remaining six grounds of appeal in turn.

17 Under his first ground of appeal the Appellant submits that the

18 Trial Chamber erred in ruling that he is liable under Article 7(1) of the

19 Statute for aiding and abetting events prior to 6 December 1991 as it went

20 beyond what was pleaded in the second amended indictment and agreed upon

21 in the plea agreement.

22 The Appeals Chamber notes that the Trial Chamber was cognizant of

23 the fact that the Second Amended Indictment was limited to the events of

24 6 December 1991, and that the Trial Chamber accepted the Appellant's

25 guilty plea on the basis of the plea agreement.

Page 370

1 The Appeals Chamber remarks that the findings of guilt entered by

2 the Trial Chamber for Counts 1 through 6 were unambiguously limited to the

3 Appellants acts and omissions that occurred on 6 December 1991. The

4 sentencing judgement made it clear that the Appellant was only being

5 sentenced on the basis of his conduct on 6 December 1991. The Trial

6 Chamber merely cited the Appellant's conduct concerning similar attacks on

7 23rd and 24th October and on 9th November 1991, in order to provide

8 context for the crimes committed on 6 December 1991. This context was

9 relevant in establishing the mens rea requirement for the conviction of

10 aiding and abetting. Accordingly, the Appeals Chamber is satisfied that

11 the Trial Chamber did not err in making a mere reference, and not a

12 finding on the crimes charged, to the events prior to 6 December 1991 in

13 its sentencing judgement.

14 Moreover, even if the Trial Chamber had erred in referring to the

15 earlier events this would not merit alteration of the sentencing judgement

16 by the Appeals Chamber as the Appellant has not demonstrated that the

17 sentence was affected by the Trial Chamber's alleged consideration of

18 conduct prior to 6 December 1991. This part of the Appellant's first

19 ground of appeal is dismissed.

20 The Appeals Chamber notes that the Appellant was convicted for his

21 role on 6 December 1991 under Article 7(1) and 7(3) of the Statute based

22 on same facts. The jurisprudence of the Appeals Chamber shows that

23 concurrent convictions for individual and superior responsibility in

24 relation to the same counts based on the same facts constitutes a legal

25 error.

Page 371

1 The Appeals Chamber is aware that the issue of concurrent

2 convictions has not been appealed and that the Appellant appealed only his

3 sentence. There is, however, an insoluble nexus between a conviction and

4 a sentence. Also, in the case of an error of law, the Appeals Chamber has

5 the discretionary power to correct this error proprio motu if the

6 interests of justice so require. The Appeals Chamber therefore holds

7 that, in accordance with settled jurisprudence, only one conviction under

8 each count can be entered pursuant to Article 7(1) of the Statute. Thus,

9 the Appeals Chamber vacates the Appellant's convictions for Counts 1 to 6

10 insofar as they are based on a finding of the Appellant's superior

11 responsibility under Article 7(3) of the Statute.

12 This, however, does not necessarily mean that a reduction of the

13 sentence is required. The Appeals Chamber holds that the Trial Chamber

14 was required to consider the Appellant's superior position as an

15 aggravating factor in sentencing as it was agreed upon by the parties and

16 accepted by the Trial Chamber that the Appellant held a leadership

17 position. Indeed, the Trial Chamber expressly considered the Appellant's

18 leadership position in its discussion of the aggravating circumstances.

19 Thus, the Trial Chamber fully recognised, as an aggravating factor, that

20 the Appellant held a position of authority and the power of a high-ranking

21 officer over others committing the crimes charged under Counts 1 through 6

22 as is reflected in the sentence imposed.

23 For the foregoing reasons, the Appeals Chamber concludes that its

24 vacating of the Trial Chamber's convictions of the Appellant as a superior

25 has no impact on the Appellant's sentence.

Page 372

1 In his second ground of appeal, the Appellant submits that the

2 Trial Chamber erred by having recourse to provisions of the Criminal Code

3 of the former Yugoslavia which would not have been applicable to the range

4 of penalties that courts in the former Yugoslavia could have passed for

5 comparable crimes.

6 The Appellant claims that under the provisions of the Criminal

7 Code of the former Yugoslavia considered by the Trial Chamber, criminal

8 liability is limited to those who are direct perpetrators. Since his

9 criminal responsibility was incurred by omission, the Appellant submits

10 that the provisions referred to by the Trial Chamber are not applicable to

11 this case.

12 The Appeals Chamber finds that the Articles of the Criminal Code

13 of the former Yugoslavia the Trial Chamber referred to - which encompass

14 war crimes, means and modes to wage combat operations, and the protection

15 of cultural property - prohibit criminal conduct against legal values

16 which are also protected in the offences to which the Appellant pleaded

17 guilty. Moreover, the Appeals Chamber observes that the principles of

18 aiding and abetting as well as criminal liability by omission are

19 enshrined in the Criminal Code of the former Yugoslavia. Therefore, these

20 articles provide guidance on the general practice regarding prison

21 sentences in the courts of the former Yugoslavia concerning the acts and

22 omissions to which the Appellant pleaded guilty and for which he has been

23 convicted. The Appeals Chamber emphasises that although a Trial Chamber

24 should take into account the general practice regarding prison sentences

25 in the courts of the former Yugoslavia, it is not obliged to conform to

Page 373

1 it.

2 The Appeals Chamber notes that the Trial Chamber did not expressly

3 refer to all the articles of the Criminal Code of the former Yugoslavia

4 that might be relevant for the present case. However, the Appeals Chamber

5 considers that the Trial Chambers are not obliged to consider each and

6 every applicable provision of the laws of the former Yugoslavia.

7 Therefore, the Appeals Chamber finds that the Trial Chamber was correct in

8 its approach and dismisses the second ground of appeal.

9 Under his third ground of appeal, the Appellant alleges that the

10 Trial Chamber erred in law in deciding that, in the case of plea

11 agreements, it would primarily rely on mitigating factors agreed upon by

12 the parties. In his view the Trial Chamber departed from the standard set

13 out in the Celebici case, in which the Appeals Chamber found that

14 mitigating factors should be established by a defendant on the balance of

15 probabilities.

16 The Appeals Chamber is not satisfied that the Trial Chamber

17 wrongly departed from the balance of probabilities standard set out in the

18 Celebici appeal judgement. The Trial Chamber recalled the correct

19 standard and concluded that, in cases of plea agreements, it would

20 primarily rely on the mitigating factors agreed to by the parties. In

21 other words, the Trial Chamber logically relieved the Appellant from

22 discharging the burden of establishing mitigating circumstances on the

23 balance of possibilities, with respect to those mitigating circumstances

24 agreed upon by the parties.

25 Moreover, the Appellant submits that three mitigating factors -- I

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Page 375

1 apologise for the -- to the interpreters for having read too quickly.

2 Moreover, the Appellant submits that three mitigating factors were

3 identified solely by him in addition to those identified by the

4 Prosecution; namely, (1), his age; (2), five events regarding his conduct

5 prior to, during, and after the commission of the offence; and (3),

6 exceptional family circumstances. However, the Appeals Chamber finds that

7 all of these factors were considered by the Trial Chamber.

8 With respect to the Appellant's specific argument that the

9 post-conflict conduct is a "separate and distinct mitigating circumstance"

10 that should not be "comingled with remorse," the Appeals Chamber finds

11 that it was within the discretion of the Trial Chamber to consider the

12 Appellant's post-conflict conduct as an expression of his sincere remorse,

13 instead of assessing his post-conflict conduct as a distinct mitigating

14 circumstance.

15 Moreover, the Appeals Chamber finds the Trial Chamber correctly

16 weighed all the mitigating circumstances, both the ones agreed upon by the

17 parties and ones presented only by the Appellant. The third ground of

18 appeal is dismissed.

19 Under his fifth ground of appeal, the Appellant submits that the

20 Trial Chamber erred in not taking into account as a factor in mitigation

21 his health and his family situation which, in his view, are extraordinary

22 and amount to exceptional circumstances.

23 With respect to the Appellant's assertion that the Trial Chamber

24 incorrectly held that he shared the same family circumstances as other

25 accused, the Appeals Chamber observes that the Trial Chamber only provided

Page 376

1 a reason as to why, in general, limited weight has been attached in

2 mitigation to factors such as the family situation of an accused. The

3 Trial Chamber did not, however, compare the Appellant's personal

4 circumstances to those of other accused.

5 With respect to the Appellant's argument that the Trial Chamber

6 disregarded the evidence before it, the Appeals Chamber finds that the

7 Trial Chamber correctly referred to the evidence presented by the

8 Appellant and thus took it into account. The Trial Chamber expressly

9 referred to the Appellant's written submissions which contain evidence

10 presented by the Appellant to show that his personal circumstances were of

11 an exceptional nature, including a confidential submission in that

12 respect. The Appeals Chamber finds that the Trial Chamber was under no

13 obligation to discuss the Appellant's personal circumstances in more

14 detail than it did, in particular in light of the fact that some of the

15 evidence proffered by the Appellant concerning his family circumstances is

16 of a confidential nature.

17 Moreover, the Appellant argues that, since in its orders on

18 provisional release, the Trial Chamber considered that his extraordinary

19 health and family considerations amounted to exceptional circumstances,

20 the Trial Chamber should have also held in the sentencing judgement that

21 his family circumstances were exceptional and attached weight to them as a

22 mitigating factor.

23 The Appeals Chamber does not agree. The Trial Chamber's

24 considerations when granting the Appellant's provisional release are not

25 necessarily relevant to its assessment of the circumstances in mitigation

Page 377

1 of the Appellant's sentence. Whereas pursuant to Rule 65(B) of the Rules,

2 an accused may be provisionally released if the Trial Chamber is satisfied

3 that he or she will appear for trial and, if released, will not pose a

4 danger to any victim, witness, or other person; concerning the evaluations

5 of an accused's conduct in order to mete out an appropriate sentence, it

6 is open to a Trial Chamber to weigh the mitigating circumstances against

7 other factors, such as the gravity of the crime, the particular

8 circumstances of the case, and the form and degree of the participation of

9 the accused in the crime.

10 For the foregoing reasons, the Appeals Chamber dismisses the

11 Appellant's fifth ground of appeal.

12 In his sixth ground of appeal, the Appellant alleges that the

13 Trial Chamber erred in law and in fact and abused its discretion by

14 failing to consider the totality of the evidence presented by the parties

15 in relation to his good character and professionalism. The Appellant's

16 first argument is that some witnesses' testimonies, including the

17 testimonies of two investigators from the Office of the Prosecutor, were

18 not taken into account by the Trial Chamber. Secondly, the Appellant

19 submits that the Trial Chamber also failed to consider evidence of his

20 good character and personal integrity, such as his voluntary surrender,

21 his conduct while on provisional release, and his admission of guilt.

22 With respect to the alleged error concerning the witnesses'

23 testimonies, I will not go into detail and instead will only summarise the

24 main reasoning. The Trial Chambers are not required to articulate every

25 step of their reasoning in reaching particular findings, and failure to

Page 378

1 list in a judgement each and every circumstance placed before them and

2 considered does not necessarily mean that they either ignored or failed to

3 evaluate the factor in question.

4 With respect to witnesses' testimonies, a Trial Chamber is in no

5 way obliged to refer to every phrase pronounced by a witness during his

6 testimony. Chambers may, where they deem appropriate, stress the main

7 parts of the testimony relied upon in support of a finding. A reference

8 to a certain portion of the witness's testimony is prima facie evidence

9 that the Trial Chamber was cognizant of the whole testimony and took it

10 into account.

11 The Appeals Chamber finds that the Trial Chamber was cognizant of

12 all the testimonies and took the relevant parts into account.

13 The Appellant furthermore alleges that the Trial Chamber should

14 have taken into account evidence of his good characteristic; namely, (1),

15 his voluntary surrender and the fact that he was the first officer of the

16 Yugoslav People's Army to voluntarily surrender without the framework of

17 the law on cooperation between the International Tribunal and the former

18 Federal Republic of Yugoslavia; (2), the fact that he has always complied

19 fully with the terms and conditions of his provisional release; (3), the

20 fact that he admitted his guilt; and (4), the fact that he apologised to

21 the Croatian Minister for Maritime Affairs and Foreign Affairs on the day

22 of the shelling and concluded a cease-fire the day after.

23 The Appeals Chamber finds that all of these factors were

24 considered by the Trial Chamber and taken into account, albeit not

25 specifically as evidence of the Appellant's good character. However, it

Page 379

1 is within the Trial Chamber's discretion to consider this evidence as

2 indicative of the Appellant's sincere remorse and his cooperation with the

3 International Tribunal; the Trial Chamber was not bound to consider these

4 factors when assessing the Appellant's good character as well. Therefore,

5 the Appellant's sixth ground of appeal is dismissed.

6 Under his seventh ground of appeal, the Appellant does not allege

7 any error on the part of the Trial Chamber. Rather, he requests the

8 Appeals Chamber to consider his cooperation in the Strugar case after the

9 rendering of the sentencing judgement, as a factor in the mitigation in

10 the interests of justice. He relies on a finding by the Appeals Chamber

11 in the Kupreskic case in support of his request. However, the Kupreskic

12 case is not comparable with the case at hand. In the present case, the

13 Trial Chamber took into account the Appellant's cooperation with the

14 Prosecution as a factor in mitigation of his sentence, and qualified this

15 cooperation as being of exceptional importance. Moreover, the Trial

16 Chamber noted in the sentencing judgement that the parties had made

17 specific submissions to the Trial Chamber, and it referred to portions of

18 the sentencing hearing that confirm the possible value of the Appellant's

19 testimony for other cases, as well as his willingness to testify in future

20 cases. The Appeals Chamber thus concludes that the Trial Chamber was

21 fully aware of the cooperation that the Appellant had provided and could

22 provide in future cases, as realised later on in the Strugar case, and

23 took this fact into account.

24 Accordingly, the Appellant's request is dismissed.

25 I shall now read the operative paragraph of the Appeals Chamber

Page 380

1 judgement.

2 Mr. Jokic, would you please stand?

3 [Appellant stands up].

4 JUDGE WEINBERG DE ROCA: For the foregoing reasons, the Appeals

5 Chamber, pursuant to Article 25 of the Statute and Rules 117 and 118 of

6 the Rules of Procedure and Evidence: Noting the respective written

7 submissions of the parties and the arguments they presented at the hearing

8 of 26 April 2005, sitting in open session, vacates proprio motu, the

9 Appellant's conviction under Counts 1 through 6 insofar as they are based

10 on a finding of the Appellant's superior responsibility under Article 7(3)

11 of the Statute; dismisses all the grounds of appeal filed by the

12 Appellant; affirms the sentence of seven years' of imprisonment as imposed

13 by the Trial Chamber; and orders in accordance with Rule 103(C) and Rule

14 107 of the Rules, that Miodrag Jokic is to remain in the custody of the

15 International Tribunal pending the finalisation of arrangements for his

16 transfer to the state in which his sentence will be served.

17 Mr. Jokic, you may be seated.

18 [Appellant sits down]

19 JUDGE WEINBERG DE ROCA: Mr. Frejabue, would you deliver copies of

20 the judgement to the parties.

21 Thank you very much. The Appeals Chamber stands adjourned.

22 --- Whereupon the Appeals Judgement Hearing

23 adjourned at 2.42 p.m.