1 Friday, 21 September 2001

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.34 a.m.

5 JUDGE MAY: Yes. Let the registrar call the case.

6 THE REGISTRAR: Good morning, Your Honours. Case number

7 IT-96-21-Tbis-R117, the Prosecutor versus Zdravko Mucic, Hazim Delic, Esad

8 Landzo.

9 JUDGE MAY: The appearances, please.

10 MR. STEWART: Good morning, Mr. President, Your Honours. My name

11 is James Stewart representing the Prosecutor. I'm assisted today by Gina

12 Butler. Thank you.

13 MR. KUZMANOVIC: Good morning, Your Honours. Tom Kuzmanovic and

14 Howard Morrison here on behalf of Mr. Mucic.

15 THE INTERPRETER: Microphone, please, for counsel.

16 MR. KARABDIC: [Microphone not activated] We represent Hazim

17 Delic.

18 MS. SINATRA: Good morning. I am Cynthia Sinatra, and along with

19 Professor Peter Murphy, we're here representing Mr. Esad Landzo.

20 JUDGE MAY: Thank you.

21 This is a hearing to consider what adjustment should be made to

22 sentences originally passed on these three accused in the light of the

23 Appeals Chamber judgement of the 20th of February of this year.

24 Three matters arise for consideration by the Trial Chamber as

25 remitted to it by the Appeals Chamber: First, to consider what

1 adjustment, if any, should be made to the sentence imposed on Hazim Delic

2 as a result of the quashing of his convictions on counts 1 and 2; second,

3 to impose an appropriate revised sentence on Zdravko Mucic as a result of

4 the Appeal Chamber's finding that the original sentence imposed on him was

5 manifestly inadequate, and to consider what effect, if any, the original

6 Trial Chamber's error in making adverse reference to the failure of the

7 accused to give evidence had on the sentence imposed on him; third, to

8 consider what adjustment, if any, should be made to the original sentences

9 passed on all three accused as a result of the dismissal of the cumulative

10 convictions under Article 3.

11 The Trial Chamber has already identified these as the issues for

12 argument and has received briefs and responses from all parties on them.

13 For that reason, there being no reason to rehearse arguments already put

14 in writing, the Trial Chamber has limited submissions to 45 minutes for

15 each party, the Prosecution to go first.

16 Mr. Stewart, it's for you to begin. I should add that we will

17 take a break as normal at around 11.00. Yes.

18 MR. STEWART: Thank you very much, Mr. President, Your Honours. I

19 will outline my plan of argument for you to make it simple for you to

20 follow and then deal with the issues. I propose to deal first with the

21 common issue, if I may call it that; namely, the effect of the dismissal

22 of the cumulative convictions. This affects all of the convicted

23 persons. It's also the only issue affecting Landzo. So first I'll deal

24 with that issue. Secondly, I will deal with the effect on Delic's

25 sentence of the quashing of his convictions in relation to one of the

1 killings for which he was originally found criminally responsible.

2 Thirdly, I will deal with the issues relating to the sentence of Mucic. I

3 will then conclude by stating in summary the Prosecutor's submission on

4 what the sentence in each case should be.

5 Let me deal, then, with the effect of the dismissal of the

6 cumulative convictions. The Appeals Chamber quashed the convictions of

7 Mucic, Delic, and Landzo where there was more than one conviction imposed

8 on the basis of the same facts; therefore, the convictions for grave

9 breaches of the Geneva Conventions were maintained, but the convictions

10 for violations of the laws or customs of war, based on the same facts,

11 were quashed.

12 Now, the Appeals Chamber itself could have dealt with the effect

13 of this on the sentences except that it had not been able to hear the

14 parties on that issue. It could not reconstitute itself in order to hear

15 the parties, and in any event, it preferred that a Trial Chamber deal with

16 the issue, because this would preserve the right of further appeal.

17 The Appeals Chamber, however, did deal with all the other issues

18 relating to sentence, whether they were alleged errors in the exercise of

19 discretion or other errors of law, so that this Trial Chamber would be in

20 a position to consider what, if any, adjustment should be made to what the

21 Appeals Chamber considered would otherwise have been appropriate

22 sentences.

23 The question, therefore, as you have defined it, Mr. President, is

24 what adjustment, if any, should be made to the sentences given the

25 dismissal of the cumulative convictions, and I submit that the question is

1 open. If the Trial Chamber takes the view that there should be some

2 reduction in sentence, the Appeals Chamber has recognised that any such

3 adjustment may not necessarily be a substantial one, and I would refer you

4 to the Appeals Chamber's judgement at paragraph 854, page 305, footnote

5 1458.

6 The Appeals Chamber has also recognised that no adjustment

7 downwards in the sentences imposed may be necessary. And I would refer

8 once again to the judgement at paragraph 769, page 274. And this, of

9 course, is the Prosecutor's position, that there should be no adjustment

10 downwards in the sentences imposed. However, the matter is one for your

11 discretion.

12 The reason why the Prosecutor submits that no downward adjustment

13 to the sentences should be made are as follows: The original Trial

14 Chamber, in our submission, clearly intended to avoid inflicting multiple

15 punishments in this case by imposing concurrent sentences. In effect, the

16 original Trial Chamber imposed a global sentence to reflect the totality

17 of the criminal conduct and overall culpability of the offender.

18 The original Trial Chamber's approach is evident, in our

19 submission, from what it said in paragraph 1286, at page 450 of its

20 judgement, where it noted that it had denied a challenge to cumulative

21 charging earlier in the proceedings on the basis that the issue was only

22 relevant to penalty in the event there were cumulative convictions. It

23 was in this context that the original Trial Chamber said it was imposing

24 concurrent and not consecutive sentences.

25 In taking this approach, the original Trial Chamber was following

1 the practice of some Trial Chambers at this Tribunal and at the Rwanda

2 Tribunal to deal with potential issues of unfairness in connection with

3 cumulative convictions at the sentencing phase. What the original Trial

4 Chamber said it was doing was picked up by the Appeals Chamber, which

5 stated that this Trial Chamber would "... no doubt consider whether the

6 remarks of the original Trial Chamber indicate that there should be no

7 adjustment downwards in the sentences imposed." And that passage that

8 I've just mentioned is to be found in the Appeals Chamber's judgement at

9 paragraph 769, page 274.

10 And that, in a nutshell, is the position that the Prosecutor

11 takes, and that's the basis for it.

12 JUDGE MAY: It was the, as I recollect, the position of the Trial

13 Chamber in the first case before this Tribunal, Tadic, that concurrent

14 sentences would be passed in relation to Article 3 offences.

15 MR. STEWART: Yes.

16 JUDGE MAY: Do I recollect correctly?

17 MR. STEWART: I believe that's correct.

18 JUDGE MAY: It was that Trial Chamber which dealt originally with

19 the question of cumulative convictions --

20 MR. STEWART: Yes.

21 JUDGE MAY: -- and said it was proper, appropriate to deal with it

22 at a later stage.

23 MR. STEWART: That's right.

24 JUDGE MAY: The sentencing stage.

25 MR. STEWART: That's right. So the Trial Chamber in this case, of

1 course, was following a similar approach. And the approach that should be

2 taken, of course, has now been made very clear by the Appeals Chamber.

3 I'm simply dealing with how the original Trial Chamber in this case was

4 approaching, and it did so on the basis of a practice that was developing

5 both here and in Arusha.

6 JUDGE MAY: Yes.

7 MR. STEWART: Now, in my submission, making no downward adjustment

8 to the sentences, notwithstanding the dismissal of the cumulative

9 convictions, is a fair approach because while the effect of the Appeals

10 Chamber's decision is to remove the stigma of the cumulative convictions

11 and remove any potential prejudice in the timing of ultimate release from

12 prison if such prejudice should, in fact, arise due to multiple

13 convictions, still the underlying criminal conduct remains the same. So

14 that in a sense, the stigma's been removed, potential prejudice has been

15 removed, but Chamber still has to deal with a constant underlying conduct,

16 and this is what has to be punished, and it is what was punished in the

17 original case.

18 The Appeals Chamber has upheld convictions for extremely serious

19 offences. The conduct of the convicted persons was evil. It involved the

20 taking of life and the infliction of real suffering in the most brutal and

21 callous manner on defenseless victims. The Appeals Chamber found that the

22 sentences would otherwise have been appropriate except in the case of

23 Mucic, where they found that the sentence should be increased.

24 So in the circumstances, I submit, no downward adjustment of any

25 of the sentences is justified simply due to the dismissal of the

1 cumulative convictions.

2 JUDGE MAY: I suppose the question we have to consider is whether

3 the convictions which were quashed, that is, the convictions for the

4 international offences, adds anything to the seriousness of the criminal

5 conduct, because it's the criminal conduct which essentially we have to

6 punish, not how it's characterised.

7 MR. STEWART: That's correct. It's the criminal conduct which I

8 am relying upon as meriting a severe sentence, and it has been legally

9 characterised, as a result of the Appeals Chamber's decision, as breaches

10 of the Geneva Conventions. That's very much the position that the

11 Prosecutor is taking.

12 Now, as the Chamber is well aware, that's the only issue which

13 affects Landzo, and therefore I would conclude with respect to him by

14 submitting to you that his sentence of 15 years should be maintained. And

15 the submissions that I've just made I would ask you to take into account

16 in relation to the other two convicted persons, and I'm going to deal with

17 the particular issues that affect each one of them now and I'm not going

18 to say anything more about cumulative convictions.

19 JUDGE MAY: Before you move on, we ought to consider the position

20 in regard to Landzo.

21 MR. STEWART: Yes. In the case of Landzo, just to summarise very

22 briefly, he killed three detainees in brutal beatings.

23 JUDGE MAY: He was a guard.

24 MR. STEWART: Yes, he was a guard. He was a guard. He tortured

25 three other detainees, which constituted cruel conduct. He caused great

1 suffering to two other detainees. One of them died, but it was not proven

2 that he was directly responsible for that. And he contributed to an

3 atmosphere of terror, causing great suffering to other detainees.

4 He, of course, offered certain factors in mitigation, including

5 his youth and his personality defects; however, the original Trial Chamber

6 took those into account and the Appeals Chamber found that the sentence

7 imposed was within the range, and the only issue was this one that we've

8 just been dealing with. And for that reason, I submit, based on the

9 submissions I've just given you, that the 15-year sentence ought to be

10 maintained. I will return to his sentence in a moment in relation to

11 whether or not there should be a single sentence as opposed to concurrent

12 sentences, but that, I'll deal with in just a very short while. But in

13 terms of the 15-year sentence, which was the top sentence he got, I would

14 submit that that should be maintained.

15 JUDGE MAY: He was sentenced to 15 years for offences involving

16 murder and some involving torture; is that right?

17 MR. STEWART: Yes, I believe so. I've detailed them in my written

18 submission.

19 JUDGE MAY: Yes.

20 MR. STEWART: If I may, then, Mr. President, I'll deal with Delic

21 next. He received concurrent sentences of 20 years for two wilful

22 killings, but the Appeals Chamber quashed his convictions for one of the

23 killings as being unreasonable. The Appeals Chamber did not, however,

24 overturn the original Trial Chamber's finding that Delic had participated

25 in the brutal beating of the victim, who ultimately died, and I would

1 submit that this is important. So what happened is that the deceased

2 suffered two horrible beatings. The second one resulted in his death.

3 Delic participated in the first, but there was no evidence to prove he had

4 participated in the second fatal assault.

5 The wilful killing where Delic's conviction was upheld was a

6 particularly brutal one. It involved Delic in beating another man to

7 death. So Delic was convicted as well of other serious offences involving

8 horrible brutality, and these were upheld on appeal.

9 If we look at his underlying conduct, he killed one detainee; he

10 tortured and raped two detainees; he engaged in inhumane acts involving

11 the use of an electrical device; he caused great suffering to another

12 detainee, who later died, although he wasn't found directly responsible

13 for that; and he participated in the creation of inhuman living conditions

14 at the camp. In the words of the original Trial Chamber, as I believe

15 they were picked up by the Appeals Chamber - and I would refer you to

16 paragraph 5.18 of the Appeals Chamber's judgement, page 175 - Delic was a

17 direct participant and primary actor in acts of inherent cruelty.

18 In my submission, the totality of his criminal conduct must be

19 weighed, and there is no question of assigning a particular value to a

20 human life by attempting some crude calculation of its worth in terms of

21 years of imprisonment that must be served by the person who took it away.

22 Sentencing is governed by the Statute and the Rules of the

23 Tribunal, and the basic principles in a case such as his are these: The

24 gravity of the offence is the primary consideration in imposing sentence.

25 The governing criterion of sentencing is that it must accurately recognise

1 the gravity of the offences and must reflect the totality of the accused's

2 criminal conduct. Here the totality of the criminal conduct of Delic has

3 been reduced for sentencing purposes, it's true, but the gravity of his

4 offences and the totality of his criminal conduct still merit a severe

5 sentence.

6 I would simply refer to two cases in passing, and I recognise that

7 they present perhaps a different context and are different to a degree,

8 but it is interesting to note the approach that the Appeals Chamber has

9 taken in relation to the issue of adjustment of sentence. In Jelisic, the

10 Appeals Chamber did not change the sentence of 40 years for offences,

11 including 12 murders, even though the Trial Chamber had taken into account

12 an additional murder in fixing that sentence for which the appellant had

13 not been convicted. In Akayesu, the Appeals Chamber did not adjust a life

14 sentence for offences including genocide, of course, where an act of

15 torture was included by the Trial Chamber in the weighing of sentence in

16 error.

17 Now, I'm not putting a great deal of reliance on those cases; I'm

18 simply offering them in support of the submission that the Appeals Chamber

19 appears to favour a global approach to sentence. And it's that sort of

20 approach that I submit ought to apply here. So that the fact that Delic

21 was involved in killing is itself extremely serious, and the sentence must

22 serve to deter others from killing in similar circumstances and it must

23 take into account the principles I've just alluded to. So that I would

24 submit that if there is any downward adjustment to the sentence of 20

25 years that Delic is now serving, it should be a slight adjustment. I've

1 said in my written material that it could be less than 20, but it

2 certainly should be more than the 15 submitted by the Defence.

3 JUDGE MAY: Before you move from him, his position at the camp I

4 have noted as the deputy commander.

5 MR. STEWART: Yes. So he had a position of authority.

6 JUDGE MAY: And the Appeals Chamber has said, and Chambers have

7 said constantly, that the fact that an accused has a position of authority

8 is a factor which is to be taken into consideration when passing sentence.

9 MR. STEWART: That's right. That's right. And I certainly rely

10 on that.

11 I've dealt, then, with Delic, Mr. President, and if I may, I'll go

12 right to the sentence of Mucic.

13 Two issues arise in relation to that in addition to the one that

14 we've already dealt with in terms of cumulative convictions, and those

15 issues arise in this context: As the Chamber knows, the Prosecutor

16 successfully appealed the seven-year sentence that was imposed on Mucic,

17 which he is now serving. The Appeals Chamber has indicated in so many

18 words that it would have imposed a heavier sentence of around ten years

19 upon him, taking into account factors such as the double jeopardy element

20 inherent in resentencing.

21 The question really, then, is: Does the dismissal of the

22 cumulative convictions in this case, or ought that dismissal pull down the

23 ten-year sentence which the Appeals Chamber would have imposed? And my

24 submission, for reasons already given, is no. And the other question is

25 whether the original Trial Chamber's error in making adverse reference at

1 the time of sentencing to the failure of Mucic to testify should now

2 curtail the sentence of ten years. And once again, my submission is no.

3 Sentencing is not a matter of assigning particular periods of time to

4 particular sentencing factors, but rather a process of making an overall

5 assessment of the circumstances of the case so as to impose an appropriate

6 sentence that takes account of all of the relevant factors. And I'm

7 relying for that proposition on the judgement of the Appeals Chamber at

8 paragraph 841, pages 300 to 301.

9 So while there may have been an error, as the Appeals Chamber has

10 said, it is not such that in light of all the factors that the Appeals

11 Chamber took into account in deciding that the sentence should be

12 increased, a reduction in sentence is warranted.

13 In my submission, there is no reason to depart from the sentence

14 judged appropriate by the Appeals Chamber, and therefore, I would submit

15 that Mucic should receive a sentence of ten years.

16 JUDGE MAY: He was the commander of the camp.

17 MR. STEWART: He was the commander.

18 JUDGE MAY: He was convicted as a superior, and the matters we

19 have to deal with are, in all but one case, offences committed as a

20 superior, but they involve wilful killing of a number detainees, torture

21 of others, wilfully causing great suffering, inhuman treatment.

22 MR. STEWART: Yes. Yes. He was, as superior responsible in

23 relation to the wilful killing of nine people, the torture of six, the

24 causing of great suffering to three, the inhuman treatment of six others,

25 and, of course, causing great suffering by virtue of the inhumane

1 conditions of the camp. Now, he was responsible, as commander, for those

2 conditions, so that he certainly, in the view of the Appeals Chamber,

3 deserved a higher sentence than he got at the original trial. And my

4 submission, as you know, as you've heard, is that nothing that has

5 happened in relation to the other issues that affect him ought to reduce

6 that ten-year sentence.

7 The only other point that I wanted to raise, Mr. President, was

8 the one relating to the imposition of a single sentence reflecting the

9 totality of the criminal conduct of Mucic, and that's in the application

10 of Rule 87(C). Certainly the Prosecutor would support such an approach,

11 and I would submit that it is open to you to take a similar approach in

12 relation to the sentences of Delic and Landzo.

13 JUDGE ROBINSON: Mr. Stewart, your submission, then, is that the

14 adverse reference by the Trial Chamber to the failure of the accused to

15 testify is not the kind of factor that would have influenced the sentence

16 and should not be taken into account. You place emphasis on the global

17 approach to sentencing.

18 MR. STEWART: Yes, Your Honour. But in a sense, I'm approaching

19 that issue from the point of view of the Appeals Chamber in the sense that

20 the Appeals Chamber took a look at a number of factors and found that

21 those factors ought to have resulted in a higher sentence than seven

22 years, and my submission is that that's so.

23 And if you add the negative factor that we've just been talking

24 about, this error in reference to his failure to testify, which should not

25 have been made and should not have been taken into account, even if you

1 add that negative factor, it's not of sufficient weight to pull down a

2 sentence of around ten years. In other words, it doesn't have an impact

3 on what this Trial Chamber should do in the wake of the Appeals Chamber's

4 judgement.

5 It's a slightly different approach than simply saying that it

6 didn't have any effect on the sentence that the original Trial Chamber

7 imposed. It's impossible to say. In fact, even the Appeals Chamber

8 couldn't really say. They say it may have had affect and the fact that it

9 could have is sufficient to raise it as an issue before you. But the

10 original Trial Chamber, even if they took that into account as a negative

11 factor, only gave Mucic seven years, which was manifestly inadequate in

12 the view of the Appeals Chamber. And my submission to you was that when

13 you come to deal with the issues that you have to now, the principal one

14 being the dismissal of the cumulative convictions, it's simply not a

15 factor of sufficient weight to detract from the ten-year sentence. That's

16 the submission.

17 JUDGE ROBINSON: The concern that I have about the global approach

18 to sentence is that, and you have relied on it on several occasion this is

19 morning --

20 MR. STEWART: Yes.

21 JUDGE ROBINSON: -- is that it might be difficult, if that is

22 taken to its logical conclusion, to ever identify a single factor as

23 having an effect on that global sentence, because conceivably there must

24 be -- it must be possible to identify factors that could reduce a global

25 sentence. And I'm a little concerned that the way you're developing your

1 argument might lead to the conclusion that it would be extremely

2 difficult, if not impossible, to have identified a single factor or

3 factors that could properly pull down and reduce a global sentence.

4 MR. STEWART: Well --

5 JUDGE ROBINSON: Because a global sentence, by definition, is

6 already a sentence that takes account of a wide range of factors.

7 MR. STEWART: Well, I would submit that to some degree it's

8 difficult to treat this issue in the abstract, and my submission to you is

9 a very concrete one. It's simply that in this sentencing circumstance,

10 this particular factor doesn't result in a reduction of what would

11 otherwise be the appropriate sentence of ten years. However, if the Trial

12 Chamber -- a Trial Chamber whose sentence was being reviewed by an Appeals

13 Chamber had articulated factors, it ought to be possible, as in fact

14 happened in this case, for the Appeals Chamber to identify factors upon

15 which undue emphasis has perhaps been placed.

16 If, for example, a Trial Chamber put too much emphasis on the

17 issue of mitigation, on mitigating factors, this is something that ought

18 to be able to be identified by the parties and by the Appeals Chamber, or

19 if too great emphasis was placed on deterrence or retribution as general

20 factors or if particular features of the case were characterised in a

21 certain way and thus given weight.

22 Clearly in the reasons of the Trial Chamber, it ought to be

23 possible to identify them if there is an error and to correct the error by

24 a downward adjustment. There is always going to be an element of

25 discretion both in the evaluation of the factors on appellate review and

1 in what to do to correct the situation. That's inescapable, but I would

2 submit, Your Honour, that it's not impossible at all.

3 JUDGE ROBINSON: Thank you, Mr. Stewart.

4 MR. STEWART: Just to conclude the point I was making about the

5 single sentence reflecting the totality of the criminal conduct, the

6 Prosecutor supports such an approach here because we take the position

7 that this is really what the Trial Chamber originally was trying to

8 achieve, and it works justice in the case because it takes into account

9 the gravity of the offences and the underlying criminal conduct.

10 To sum up then, however the sentences are structured, the

11 Prosecutor submits that Mucic should receive a sentence of no less than

12 ten years, Delic should have a sentence close to 20 years - the exact

13 sentence being a matter for you - and Landzo's sentence of 15 years should

14 be maintained.

15 Those are my submissions.

16 JUDGE MAY: Thank you, Mr. Stewart.

17 [Trial Chamber confers]

18 JUDGE MAY: Yes. We turn to the Defence.

19 Mr. Kuzmanovic, are you going first?

20 MR. KUZMANOVIC: Yes, Your Honour. Thank you. Mr. Morrison and I

21 will be splitting our argument, and we will not take the 45 minutes.

22 JUDGE MAY: Very well. And you're addressing us, of course, on

23 behalf of Mr. Mucic.

24 MR. KUZMANOVIC: Yes, Your Honour. The first thing I would like

25 to advise the Court is obviously we are not going to be reiterating things

1 we've written in our brief. I think the Court is well aware and has read

2 our submissions, and we will not be repeating them in our oral

3 submissions.

4 I will state, though, however, that at least as far as the issue

5 of the adverse reference that we've discussed to Mr. Mucic failing to

6 testify, the Prosecution, in its brief, has not really provided the Court

7 with any authority or any persuasive argument as to why that adverse

8 reference should not be used to pull down Mr. Mucic's sentence, and I will

9 refer to my arguments in our brief in that regard.

10 I would like to direct the Court to paragraph 787 of the Appeals

11 Chamber's decision. In that section of the decision, the Appeals Chamber

12 said that: "It is essential --"

13 THE INTERPRETER: Could counsel please slow down, particularly if

14 he's reading.

15 JUDGE MAY: You are asked to slow down. Remember the

16 interpreters.

17 MR. KUZMANOVIC: Yes, I will.

18 JUDGE MAY: Particularly if you're reading.

19 MR. KUZMANOVIC: I apologise, Your Honour.

20 "It is essential that the sentencing Judge is in possession of

21 the fullest information possible concerning the defendant's life and

22 characteristics."

23 And I submit that the Appeals Chamber has put this Trial Chamber

24 in a difficult situation, because it can't be said that this new Trial

25 Chamber is really in possession of this information. And unless this new

1 Trial Chamber has had the ability to view the videotape, review the

2 transcripts, the thousands of pages of transcripts, I submit that it can't

3 be in possession of the fullest information possible in order to deal with

4 the sentencing issue.

5 JUDGE MAY: Mr. Kuzmanovic, you know the position. It's been

6 remitted to us by the Appeals Chamber with certain instructions which we

7 propose to follow.

8 MR. KUZMANOVIC: I understand that, Your Honour, but my submission

9 is that in order to get a full picture of who our client is, I don't think

10 under the Appeals Chamber's guidance that the new Trial Chamber has that

11 possibility without reviewing the things that I have discussed.

12 JUDGE MAY: Well, we have followed the instructions given to us,

13 and that is the approach which we shall continue to follow.

14 MR. KUZMANOVIC: And I understand that, and that's why I would

15 suggest to the Court to review closely the original Trial Chamber's

16 judgement, because in the original Trial Chamber's judgement, at paragraph

17 1240, the Court specifically said and I quote:

18 "It is significant to observe that Mr. Mucic has not been found

19 guilty of actively participating in any of the offences charged in the

20 indictment. All of the convictions are in respect of offences for which

21 he was culpable and liable because of criminal acts by subordinates."

22 And that gets us to the big picture when you look at Mr. Mucic as

23 an individual. What did he have to do with anything, with the arrest of

24 people brought to Celebici? What position of military authority, if any,

25 did he have there? What credible evidence existed that he was the

1 commanding officer before the end of July of 1992? And I think those are

2 all things that we've discussed both at the Trial Chamber level and at the

3 Appeals Chamber level.

4 The other issue which I would refer the Court to is the standard

5 of review that we argued in our brief at pages 19 to 20 on what the Court

6 should do on issues of sentencing. It's our position that the Court

7 should follow a similar standard to Aleksovski on the issue of

8 reasonableness and deference to a court on the -- the Aleksovski case

9 dealt with reasonableness and deference to a Trial Chamber on the issue of

10 factual determinations. It's our position that this Trial Chamber should

11 make that same deference to the Trial Court on the issue of sentencing

12 determinations.

13 I would like to leave the Court before I hand this matter over to

14 Mr. Morrison with the following thought: What other case have we had

15 testimony in which a detainee victim at a camp has said that if 20 per

16 cent of the people were like Mr. Mucic, there would not have been any war

17 in Bosnia? I shun to think that if we would have had 20 per cent of the

18 people in Bosnia that were Todorovics or Jelisics, I shun to think what

19 would have happened in Bosnia.

20 I think the fact that the Trial Chamber made that initial review

21 of the record and that we've had testimony on Mr. Mucic's behalf from a

22 victim, that tells you the difficulty that the Trial Chamber had initially

23 in coming to its decision on sentencing. If Mr. Mucic was this person who

24 was this horrible camp commander, we would not have had a sentence of

25 seven years; we would have had a sentence of 20 years, 25 years, even

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1 more. And I think what you can see is the Trial Chamber's grappling with

2 the factual issues in the case and the difficulties it had in coming to

3 its conclusion and issuing a sentence of seven years, based on the fact

4 that it felt that Mr. Mucic's failings were not that of someone who had

5 malice, and I think that's a very important determination that the Trial

6 Chamber made that this Court should look closely at.

7 I will now turn the matter over to Mr. Morrison. Thank you, Your

8 Honours. Unless there are any questions.

9 MR. MORRISON: If it please Your Honours. There's really three

10 matters I would like to address your minds to in respect of this exercise,

11 and the first is this: Of course Mucic was held to be the camp commander,

12 but it's the position of authority that convicted him, not that sentenced

13 him. And I go back to what my learned friend Mr. Kuzmanovic has said in

14 respect of that: When one looks at the underlying character of the

15 person, one really does have to go back to what the Trial Chamber analysed

16 and what they determined, and it is remarkable that a detainee in those

17 circumstances should have been able to say that which he did. And he

18 wasn't the only detainee, as Your Honours will see from the trial

19 transcript when you read that portion of it.

20 At paragraph 853 of the judgement of the Appeals Chamber, they say

21 this: They take account of the various considerations relating to the

22 gravity of Mr. Mucic's offences and the aggravating circumstances;

23 therefore, they've taken account of everything which my learned friend

24 Mr. Stewart was advocated, as well as the mitigating circumstances

25 referred to by the Trial Chamber. They also take into account double

1 jeopardy element involved in resentencing. Of course, the double jeopardy

2 element is really an element which goes to the mind of the defendant or

3 detainee as to how he perceives his sentence, because it's his jeopardy

4 and it's nobody else's. And in doing that, they say they would have

5 imposed on Mr. Mucic a heavier sentence of around ten years'

6 imprisonment. That is, with great respect, imprecise. It can only

7 sensibly and practicably mean a sentence of between 9 and 11 years. It's

8 difficult to imagine another or better, in my respectful submission,

9 definition of "around ten years."

10 JUDGE MAY: It's leaving the matter to the discretion of this

11 Trial Chamber but giving it an indication of the sort of sentence they had

12 in mind. The difficulty about the submission that you and Mr. Kuzmanovic

13 have made is that all these factors have been taken into consideration,

14 firstly by the Trial Chamber in imposing what for a camp commander would

15 appear to be a low sentence of seven years, and the Appeals Chamber in

16 ordering or deciding that it was too low and recommending about ten

17 years. Why should we not follow that indication?

18 MR. MORRISON: Well, Your Honour, let me deal with it from this

19 standpoint, then: Supposing I simply concede for the purposes of this

20 argument that that should be the approach, which, with respect, I do, for

21 the purposes of this argument. We then analyse what "around ten years"

22 means, and we look at it from the point of view of the defendant, who is

23 the person who is going to be the subject of the sentence. Because that's

24 part of the double jeopardy argument, the most central issue in double

25 jeopardy, is the effect upon the defendant of a resentencing exercise.

1 And if one looks at it from that point of view and says, "What is the

2 practical effect of around ten years' imprisonment?" in my submission, the

3 common-sense interpretation is something between 9 and 11 years.

4 Now, if one looks at that and sees the ambiguity in that, 2 years

5 between 9 and 11 is a substantial period of time. And where there is an

6 ambiguity in law, the general principle is that the ambiguities are

7 resolved in favour of those who would be in jeopardy if they were

8 otherwise resolved. So let's look at it from that point of view and

9 suggest that therefore, in equity, around ten years' imprisonment would

10 mean the lower end of that ambiguity, nine years.

11 One then looks afresh at the cumulative sentencing. And in my

12 respectful submission, it would be disingenuous to suppose - because the

13 Trial Chamber did not set out in specific detail how it approached that

14 element of sentencing - it would be disingenuous to suppose that they

15 didn't take some account in sentencing of the cumulative convictions, and

16 the danger is, therefore, that they did, and that also goes to double

17 jeopardy.

18 But more importantly in respect to Mr. Mucic, in my submission, is

19 the error by the Trial Chamber in referring to the failure of Mr. Mucic to

20 give evidence. That's been treated, and understandably, but it's been

21 treated dismissally by the Prosecution in this case. In my respectful

22 submission, it's a matter which is of considerable moment in the

23 jurisprudence of this Tribunal, that a Trial Chamber should have made what

24 is - and one has to put it bluntly - a fundamental error. It's about as

25 fundamental as it gets. There are many jurisdictions in which, if such an

1 error was made during the course of a judicial process and it came to

2 light before that person was convicted or sentenced, the conviction would

3 be swept aside and a retrial ordered. Certainly, of course, in my own

4 jurisdiction, if a judge summed the case up to the jury making that sort

5 of error by suggesting to the jury that they could take into account a

6 failure to give evidence, we would know what the consequences would be.

7 This is not a small matter. The trouble is, we do not know, even

8 allowing for the seven-year original sentence, exactly what proportion of

9 that sentence was taken into account by the Trial Chamber in the wrongful

10 prejudice that was given to the failure to give evidence. If they didn't

11 take it into account at all, my submission is that they would have said

12 so, because it is something which was so fundamental. We don't know. We

13 can only assume. And the assumption, in my submission, has to be in

14 favour of the defendant.

15 They must have held it against him, in broad practical terms. It

16 is impossible to define what proportion of the sentence was affected by

17 that, but that it was some, in my submission, is of such great moment and

18 of such great danger that it cannot be ignored. And this Chamber, in my

19 submission, should give effect to what the Appeals Chamber has said as to

20 that, as to the error, by giving a reduction from that nine-year basis,

21 which, in my submission, would be the equitable way of approaching this

22 case. That's, of course, a matter for discretion.

23 [Trial Chamber confers]

24 JUDGE MAY: Mr. Morrison, what we have to consider, surely, is

25 this: Is this sentence, aside from this remark, a proper sentence or

1 not? Because, as you rightly say, we cannot go back and see what was in

2 the minds of the original Trial Chamber. We have to put ourselves or ask

3 ourselves: Is this a sentence which is proper, or is it one which has

4 been affected by this comment? And we've got to judge the matter, as far

5 as we can, objectively.

6 MR. MORRISON: Your Honour, of course. The best evidence we have

7 of what was in the minds of the Trial Chamber is in their judgement.

8 Indeed, the only evidence we have of what was in the minds of the Trial

9 Chamber was in their judgement. And we know that part of what was in

10 their minds was the fact that Mr. Mucic had failed to give evidence. And

11 that is a balancing exercise, of course, for Your Honours to consider.

12 I pose the alternative proposition. Imagine if the Trial Chamber

13 had actively said, "Well, we're going to reduce the sentences where people

14 give evidence, whether they're convicted or not." There would be a howl

15 of protest from the Prosecution that the jurisprudence of the Tribunal was

16 being perverted by things which should not have been taken into account.

17 Well, this is simply the other side of the coin. It's the overall aim of

18 the Security Council and the setting up of this Tribunal to present to the

19 world a Tribunal where the fundamental principles of law are not only

20 upheld but honed and perfected. And in making the sort of determination

21 the Trial Chamber did, they fell -- with respect, fall short of that, and

22 this is an opportunity for this Trial Chamber to amend that error.

23 Your Honour, unless there's anything else I can usefully deal

24 with ...

25 [Trial Chamber confers]

1 JUDGE MAY: Thank you, Mr. Morrison.

2 Yes. Who is next? Mr. Moran.

3 MR. MORAN: Yes, Your Honour. I'll go next. May it please the

4 Court. The issues have been fully briefed on both sides. In fact, I

5 think the Trial Chamber may think I briefed it a little too fully, so I'm

6 not going to repeat what's in the briefs. What I propose to do is answer

7 a few questions that I think have been raised; second, present some kind

8 of what I think is a logical way to deal with the issues that are

9 presented before you; and third, to discuss this case in a little bit of

10 length based on this Trial Chamber's analysis in Todorovic.

11 The first thing I want to do is, there were two questions that

12 were asked by the Bench. Judge May, you mentioned to the Prosecutor about

13 an aggravation based on a position of authority, that that's a factor that

14 can be considered. Your Honour, let me suggest to you this: In

15 Todorovic, you did that. You also held that an aggravating factor must be

16 proved beyond a reasonable doubt. Now, I could be wrong on this, but as I

17 recall, in every case where superior authority has been a factor in

18 aggravation, that person had either been held liable on a command

19 responsibility theory, superior responsibility theory, or could have

20 been. For instance, in Todorovic, he could have been held responsible on

21 a command responsibility theory. He was not. But you clearly said in the

22 judgement that he was the chief of police and that put him into that

23 position.

24 Here Mr. Delic has been acquitted of all command responsibility

25 counts and allegations. The Prosecutor appealed that, and the acquittals

1 were affirmed. Therefore, you cannot show beyond a reasonable doubt that

2 he had superior authority. And under your holding in Todorovic that an

3 aggravating factor must be proven beyond a reasonable doubt, I would

4 suggest to you that you should not take Mr. Delic's status as deputy camp

5 Commander into account in assessing punishment.

6 JUDGE MAY: He was convicted under Article 7(1).

7 MR. MORAN: Yes, Your Honour. He was convicted of what he did,

8 not on a derivative responsibility theory like Article 7(3).

9 JUDGE MAY: And what he was convicted of, on the other hand, was

10 the wilful killing of one detainee, causing suffering or serious injury to

11 another, two counts of torture by way of rape, and another count of

12 inhumane treatment of detainees, and another of causing great suffering.

13 He was convicted -- if you're right about that argument, he was still

14 convicted of obviously very serious offences.

15 MR. MORAN: Your Honour, no one is submitting that they weren't

16 serious offences of conviction, but, Your Honour, you raised that in a

17 question to the Prosecutor, and I thought I should address it.

18 Judge Robinson, you raised the issue of global sentencing. And

19 let me just suggest to you this: Sentencing is not a scientific thing.

20 It's something that Judges have to look into their hearts and their minds,

21 and they try to do as best they can. And in some jurisdictions -- well, I

22 practice in two jurisdictions at home. One is a state court and one is a

23 federal court. In the state court, there is broad discretion in the

24 sentencing authority. It might be 5 to 99 years or life in the

25 penitentiary for a crime, and anywhere within that would be within the

1 sentencing authority's discretion.

2 On the other hand, in my federal courts, there's been an attempt

3 to set up guidelines that are really binding on the judges and to narrow

4 their discretion, and I would just suggest to you, Your Honour, that this

5 Trial Chamber -- and I really haven't -- this Tribunal seems to have

6 picked some kind of a middle ground where it says the Trial Chamber has

7 great discretion in assessing punishment but that it has to explain its

8 reasons for doing so, and that if its reasons show an abuse of discretion,

9 then they're subject to review by an Appeals Chamber.

10 So I think that probably what should be done is that the Trial

11 Chamber will set forth in some detail its reasoning for picking a specific

12 sentence, and that would be how it could be reviewed.

13 With that, Your Honour, let me proceed this way: As far as I

14 know, Mr. Delic is the first person in front of this Tribunal to be

15 remanded for resentencing or an adjustment in sentence based on a

16 reduction in the total amount of criminality, of criminal conduct. Again,

17 I could stand to be corrected, but I believe that is true.

18 The Prosecutor at the Appeals Chamber, the Appeals Chamber itself,

19 and the Prosecutor here all seem to agree that the sentence should reflect

20 the total amount of criminality and that if the total amount of criminal

21 conduct is reduced, the sentence should be reduced, the total sentence,

22 the overall sentence.

23 It's hard to determine, from reading the original Trial Chamber's

24 judgement, how much of the total global sentence assessed against

25 Mr. Delic was based on the facts of the murder of Scepo Gotovac, counts 1

1 and 2 in the indictment. Clearly, a reading of the Trial Chamber's

2 judgement shows that they were offended by this. It was an old man who

3 was killed based on their findings of a 50-year-old dispute that arose

4 during World War II, purely for revenge, which is a bad motive, and that

5 could not help but affect the original Trial Chamber's decision on what

6 sentence to impose. Unfortunately, they erred, because he was not guilty

7 of that murder. That is why the case is back here.

8 Since this Trial Chamber sees its role - and I don't disagree with

9 you - as adjusting the sentence, I think your analysis has to be to

10 attempt to determine what effect that convictions on counts 1 and 2 had on

11 the total sentence that was assessed, and I think you have to read the

12 Trial Chamber's judgement on sentencing to get a feel for how the original

13 Trial Chamber felt about that offence. At that point, then, I think you

14 should reassess Mr. Delic's sentence by attempting to remove the effect of

15 the improper conviction.

16 [Trial Chamber confers]

17 JUDGE MAY: Yes, Mr. Moran. Sorry.

18 MR. MORAN: Yes, Your Honour. And having done that and having

19 arrived at a sentence, a presumptive sentence for Mr. Delic, then I think

20 it becomes the second part of the analysis to adjust for the cumulative

21 convictions. And again this Trial Chamber is going to, I think, have to

22 try to determine what the original Trial Chamber did and how it was

23 affected by the cumulative convictions.

24 I've cited some cases to the Trial Chamber from American

25 jurisdictions on what we call multiplicious sentencing, and frankly, it's

1 a very difficult thing for an appellate court or a reviewing court to deal

2 with. It is very difficult. But it is clear that even with concurrent

3 sentences, the second conviction does constitute a separate punishment for

4 the crime, if for no other reason that you are labelled as a criminal for

5 two reasons rather than one. And I would suggest to the -- that in that

6 analysis, there should be some reduction in the overall sentence, not just

7 for Mr. Delic but for all of these defendants, simply based on the

8 cumulative convictions.

9 Now, in looking at the sentencing factors I think you should look

10 at directly based on the reduction in the total amount of criminality,

11 that issue's been briefed. Of course, Todorovic came down after that, and

12 so I will just discuss some of the factors the Trial Chamber considered in

13 Todorovic.

14 First, it seems from my reading of the case, and I may have

15 misread it, but I think this Trial Chamber seemed to consider deterrence

16 and retribution almost together, that if the sentence was sufficient for

17 retribution, then it would be sufficient to deter others later from

18 committing the same offence. You looked at the nature of the crimes and

19 the way that the crimes were committed. But although you didn't say it in

20 your judgement, it appeared that you were making sure that you didn't

21 consider both the crime and how it was committed separately from the

22 nature of the crime and seemed to consider those together in arriving at a

23 sentence, so that you wouldn't say, "This person committed a horrible,

24 brutal murder and so the sentence merits X, and it was also horrible and

25 brutal so it merits something on top of X." The Trial Chamber considered

1 them together.

2 Other factors that the Trial Chamber seemed to look at in

3 mitigation were you discussed four factors: guilty plea, cooperation with

4 the Prosecutor, remorse, and diminished mental capacity. Well, of course

5 in this case there were no guilty pleas. My suggestion to the Court on

6 that would be you're correct in Todorovic, that in every jurisdiction that

7 I know, if a person pleads guilty, that's considered a matter in

8 mitigation. But the other side of the coin, the fact that he insists upon

9 his rights to a trial, is not a matter in aggravation.

10 JUDGE MAY: No. That must be right.

11 MR. MORAN: Cooperation with the Prosecutor. Mr. Delic gave a

12 statement to the Office of the Prosecutor at the time of his arrest and

13 the time of his initial detention in The Hague. That was introduced into

14 evidence in front of the Trial Chamber. He was not asked to testify

15 against anyone else. He was not asked for anything beyond that

16 statement.

17 Expressed remorse. There is nothing in the record about expressed

18 remorse one way or the other.

19 Diminished mental capacity. There is, in the record from the

20 original Trial Chamber, a report from Dr. Prince from McGill University

21 that Mr. Delic suffers or suffered at the time of the examination from

22 post-traumatic stress syndrome. Now, in Todorovic, there was some

23 question about whether or not he suffered from PTSD, and there was a

24 question about whether or not he suffered from PTSD at the time of the

25 offences on whether it developed later, and, therefore, this Chamber did

1 not consider post-traumatic stress syndrome is matter in mitigation.

2 Frankly, Dr. Prince's report is not clear as to when it developed. I will

3 just refer it to you. It's attached to my sentencing memo from the

4 original Trial Chamber.

5 Issues in mitigation that the Trial Chamber did not discuss in

6 Aleksovski were discussed in our briefs. I think they've been discussed

7 at some length, and unless there's some questions, I will give back

8 whatever remaining time I have to the Court.

9 JUDGE MAY: Mr. Moran, we've also got to do this -- you put

10 forward one approach. We've also got to determine what on the facts is a

11 proper sentence, the facts as they're put to us, and we have to determine

12 whether the sentence, as passed, needs adjustment or not.

13 MR. MORAN: Your Honour, everyone, I think -- well, this Trial

14 Chamber hasn't been asked and hasn't said, but the Prosecution, both at

15 the Appeals Chamber and here, and we have said that based on the appellate

16 acquittal, there should be some reduction in sentence. The dispute is

17 over how much.

18 JUDGE MAY: Well, the words used by the Appeals Chamber were

19 "adjustment, if any," and we're going to have to determine not

20 necessarily whether there should be adjustment, whether there should be

21 adjustment, and if so, how much.

22 MR. MORAN: Well, Your Honour --

23 JUDGE MAY: That is going to be the approach we're going have to

24 adopt, isn't it, rather than trying to start sentencing again and trying

25 to work out what was in the minds of original Trial Chamber, which we

1 cannot determine.

2 MR. MORAN: Well, Your Honour, the two separate approaches, I

3 think, are this: One is resentencing, in which instance the entire range

4 of punishment would be open to this Trial Chamber, and the other is an

5 attempt to correct or adjust based on errors made by the original Trial

6 Chamber.

7 Now, I -- from reading the various orders, scheduling orders, and

8 decisions of the Trial Chamber and the Appeals Chamber's holding, it seems

9 to me it is an adjustment that should be based on the original sentence as

10 opposed to -- on all three defendants, not just on my client, as opposed

11 to a complete resentencing.

12 JUDGE MAY: Yes. If you're right about that, then the question

13 is, adjustment -- is any adjustment required? Two stages I should say.

14 Is any adjustment required, and if so, how much? You seem to posit that

15 it's been agreed that there should be an adjustment.

16 MR. MORAN: Well, Your Honour, I quoted, and I can find it in my

17 original brief, two paragraphs from the Appeals Chamber that talked about

18 sentences reflecting the total amount of criminality, the totality of the

19 criminality.

20 The Prosecutor at the Appeals Chamber talked about the total

21 amount of the criminality and says if there's one crime, each one of which

22 would have merited 20 years, the two of them together might merit 22 to 25

23 or some other period of imprisonment.

24 JUDGE MAY: What you say, in a nutshell, in fact, you've said is

25 that because there has been in this case a quashing of convictions,

1 therefore there's a reduction in criminality, therefore there should be a

2 reduction in sentence.

3 MR. MORAN: Your Honour, that's what we think the Appeals Chamber

4 said and the totality principle requires, and the question would be: How

5 much? We have suggested that it should be in the neighbourhood of 15

6 years. But in any case, since the total amount of criminal conduct for

7 which Mr. Delic has been held liable is reduced, it seems to follow almost

8 directly that the total punishment ought to be reduced to fit the crime.

9 JUDGE MAY: Crimes.

10 MR. MORAN: Crimes, plural. Your Honour, neither in the written

11 submissions nor in my oral submissions to this Trial Chamber have I

12 attempted to denigrate or minimise the gravity of the offences of which

13 Mr. Delic stands convicted. I can't do that. He has been convicted of

14 serious offences. But he has been acquitted of a serious offence, a

15 serious offence which the original Trial Chamber found was committed in an

16 especially heinous way, for an especially bad motive, against an

17 especially vulnerable victim, and therefore, I think that there is a

18 substantial reduction in the amount of criminality.

19 Just looking at the motives on the other murder convictions -- the

20 other murder conviction. Excuse me. In that case, the complainant, the

21 deceased, was accused of being a sniper for the Bosnian Serbs. Whether or

22 not he was, I'm not -- that's not, I don't think, relevant. The fact is

23 he was accused of that and the evidence was appeared to believe -- or

24 appeared to show that the people in the camp thought he was guilty about

25 being a sniper. This Tribunal has found, has held, the Office of the

1 Prosecutor had shown in indictments time after time that sniping is

2 considered to be a very, very serious offence. One need only look at

3 General Galic's indictment on the Sarajevo case. So the motives for the

4 two murders I think are different.

5 Now, no one is ever saying, and I'm not going to tell you that I

6 think murder can be a minor offence. There is no misdemeanour murder.

7 But if motive and the way the crime is carried out is to have any weight

8 at sentencing, as you've said in Todorovic it does and as the Appeals

9 Chamber says in other cases, then you have to look at those two murders --

10 [Trial Chamber confers]

11 JUDGE MAY: Yes, Mr. Moran.

12 MR. MORAN: Yes, Your Honour. I think you have to look at those

13 two murders and attempt, as best you can, to see how the count 1 murder

14 affected the judgement and the sentence of the original Trial Chamber.

15 And I'm suggesting --

16 JUDGE MAY: I think you've made that point.

17 MR. MORAN: It's a very difficult task, and I don't envy you for

18 it. Unless there are some other questions again, I will give some time

19 back.

20 JUDGE MAY: No. Thank you very much.

21 Yes, Ms. Sinatra.

22 MS. SINATRA: Yes, Your Honour. If I would suggest, we're ten

23 minutes away from the break time. If the Court would allow us, we would

24 ask to take the break so we're not interrupted in the middle of our

25 argument.

1 JUDGE MAY: Yes. Good idea. We'll adjourn now for half an hour,

2 which means we will be back at twenty past eleven.

3 --- Recess taken at 10.50 a.m.

4 --- On resuming at 11.28 a.m.

5 JUDGE MAY: Yes, Ms. Sinatra.

6 MS. SINATRA: May it please the Court. Of course, you're aware

7 that I'm Cynthia Sinatra and this is Peter Murphy, and we're going to be

8 sharing the argument today. I don't think we're going to be very lengthy,

9 because we only have a few -- one basic issue is whether there's any

10 adjustment based on the cumulative convictions that were dismissed. I

11 also want to say that we're really happy to see that Judge Fihri is

12 healthy after last time, and we're also very happy that four of us were

13 able to fly here under the conditions right now and be here with this

14 Court and we didn't have to reset this again.

15 I want to refer back to our brief on the adjustment of sentence.

16 I'm not going to reargue everything. This Trial Chamber is well aware of

17 our arguments put forth. I did want to remind the Court that when you

18 look at the summary that we have on the first and second page of the

19 brief, though, that initially Esad Landzo was charged with 18

20 convictions. He had 18 convictions. The Trial Court, of course, found

21 that he was not guilty of two, and then under the cumulative sentencing,

22 eight of them were dismissed. So we're only left with eight counts that

23 we're dealing with. Although, I'm not trying to make light of the

24 charges. Mr. Landzo still stands convicted, after the dismissal of the

25 cumulative convictions, of three counts of murder, three counts of

1 torture, and two counts of cruel treatment, which are very serious crimes

2 in this Tribunal.

3 I do want to address Judge May's statement that criminal

4 responsibility also should be -- the aggravating circumstances should take

5 into account command responsibility. As you're aware, Mr. Landzo had no

6 command responsibility at Celebici camp. He was an 18-, 19-year-old guard

7 with no military prior training and, you know, he was just forced to come

8 in and defend his home and city at the moment, so he really had no

9 military standing whatsoever.

10 The Court has already taken into consideration the diminished

11 mental responsibility in mitigation of punishment, but I want to say that

12 as an 18-, 19-year-old at the time in 1992, Mr. Landzo is now 28 years

13 old, and one of the considerations that this Court takes seriously when

14 resentencing or in adjusting right now would be in rehabilitation. And

15 although the Trial Court did consider the certain rehabilitation and

16 psychological therapy that Mr. Landzo had during his confinement, he's now

17 been confined five and a half years, and three years have passed since the

18 first sentencing occurred. It was November of 1998, so we're just one and

19 a half months short of three years, and I'd like to just take this moment

20 to update the Court on some of the progress that Mr. Landzo has made and

21 ask this Court to please consider these mitigating circumstances.

22 These are issues that were already considered by the Trial Court -

23 and I won't go over them - such as his voluntary surrender. He did

24 attempt to cooperate with the Prosecution. And when you compare this to

25 Todorovic, who was really charged with many heinous crimes - because the

1 Prosecution needed his assistance, and the Prosecution didn't need

2 assistance in our case - I don't think that Mr. Landzo should be punished

3 for the fact that the Prosecution didn't need his assistance at that time

4 during the trial.

5 Mr. Landzo testified. He admitted his guilt. He now has learned

6 perfect English. He assists the guards over at the UN Detention Centre in

7 interpreting for some of the other Yugoslav detainees. And he has done

8 all of this on his own. Not only has he taught himself English, he has

9 taught himself computer skills, and he's assisting the other detainees

10 over there with their computer skills.

11 When I first met Mr. Landzo in December of 1996, he had twice

12 attempted to commit suicide. He'd been on hunger strikes. He wrote a

13 letter to the Prosecution asking to be executed by a firing squad. The

14 transformation of Esad Landzo from 1996 to today probably has lot to do

15 with changing from a young boy to a man, a maturation process --

16 JUDGE MAY: One moment, Ms. Sinatra. We did have some difficulty

17 with the transcript. Yes.

18 MS. SINATRA: Thank you. He also is friends with all ethnic

19 groups over there. He's gotten a job while he's in the detention centre.

20 He works in the laundry, and he takes great pride in the work that he

21 does. In fact, all the other detainees ask him to please do their laundry

22 because he's so neat.

23 He's been seeking his faith also, and he says he has no enemies

24 left. And I would like to ask the Court, although I'm not finished with

25 my argument, if the Court would allow Mr. Landzo to address the Court for

1 a few moments in English.

2 JUDGE MAY: No, Ms. Sinatra. We considered applications in

3 relation to addresses by the accused. We're not going to allow it.

4 MS. SINATRA: Well, Mr. Stewart had said that it's a fair approach

5 that Mr. Landzo receive no adjustment. My question to this Court is: How

6 could it be fair when, of course, under Article 24 this Court takes into

7 consideration all the aggravating and mitigating circumstances and the

8 criminality? When his criminality has been reduced from 18 charges to 8

9 charges, the fair decision on this Court would be to adjust the sentence

10 proportionately.

11 I'd like to remind this Court also that in the last three years,

12 the jurisprudence of the Tribunal has moved forward in regards to

13 sentencing. We have so many more decisions to rely upon than we did in

14 1998, and this Court doesn't have to ignore them.

15 I know that Mr. Moran has gone over the Todorovic decision with

16 you, and I don't want to, you know, reread the whole decision, but this

17 Court is well aware of the charges against Mr. Todorovic. Even though he

18 did cooperate with the Prosecution, he also admitted -- showed his

19 remorse, admitted his guilt, just as Mr. Landzo has done, and the Court

20 thought that a fair sentence was ten years. Mr. Stewart says that a fair

21 sentence for Mr. Landzo remains at 15 years. We disagree with this.

22 We would like to also ask the Court not to decide this in a

23 vacuum. Mr. Landzo did not have any command responsibility or any

24 superiority, and if the -- if we have to do comparisons not only with

25 Todorovic, who was a police chief, but also with one of the other accused

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1 in this trial who was found to have command responsibility and only

2 received seven years, we're asking this Court to make sure that Esad

3 Landzo's sentence is not any more than seven years also.

4 In fact, I'm going to give all this time back to Mr. Murphy right

5 now unless this Court has any questions of me.

6 JUDGE MAY: No. Thank you, Ms. Sinatra.

7 MS. SINATRA: Thank you.

8 MR. MURPHY: May it please the Court. I will be very brief

9 indeed.

10 The Court knows that we filed a motion drawing the attention of

11 the Court to an issue of jurisdiction, and I appreciate the Court has

12 denied that motion, and it is not my intention to try to reopen it. It

13 is, however, my intention to suggest that -- and perhaps the wording of

14 the motion was not entirely fortunate since we put it in terms of the

15 jurisdiction of the Appeals Chamber. There is, of course, an issue as to

16 the jurisdiction of this Chamber, and I simply re-urge the matters of law

17 that were contained in the motion in that regard.

18 I think, Your Honours, in the way in which this issue arose at a

19 very late stage is really significant, that we, as a group of Defence

20 counsel, were trying to articulate what we saw as a problem of the

21 difference between an adjustment of sentence and a resentencing. And in

22 the course of exploring that, we asked ourselves the question, well, what

23 is the law which gives a Trial Chamber the jurisdiction to sentence in

24 this Tribunal? And when we looked at that question, it became clear, to

25 us at least, that the Statute of the Tribunal and the Rules give the Trial

1 Chambers, the Appeals Chamber very specific powers, very specific

2 jurisdiction, which it seemed to us did not cover the present case. We

3 brought it to the attention of the Trial Chamber because it seemed to us

4 to be an issue of some importance which, if not resolved in this case,

5 will inevitably have to be resolved at some later time or in another

6 case.

7 The issue, Your Honours, if I may say so, was really framed, I

8 think, during the course of argument this morning when, in response to a

9 question from Mr. Moran, Judge May made the statement, I think, that we

10 have to determine what the proper sentence is, the proper adjustment.

11 My submission is that it is not really practicable to make an

12 adjustment of sentence without an understanding of the underlying

13 criminality, and that's really the issue implicit in the Court's task,

14 because when one -- if it were just a question of, well, we had a certain

15 number of crimes of which they'd been convicted originally, today we have

16 less crimes, then of course it would be a very simple issue as to whether

17 that really makes any difference.

18 In order to exercise discretion properly, the Trial Chamber really

19 has to go back and look a little bit at the overall criminality, and that

20 really means looking at the record in much the way the first Trial Chamber

21 would have looked at it. And that's really the dilemma that the Appeals

22 Chamber has - with all great respect to the Appeals Chamber - has created

23 for this Trial Chamber. How do we make a proper adjustment without a

24 understanding of the criminality? And if we explore the criminality, how

25 do we do that without looking at the record and trying to reconstruct, as

1 it were, what the first Trial Chamber had in mind?

2 Your Honours, it may be for that reason and for whatever reason,

3 however, that the Trial Chamber, even on an issue of adjustment, I would

4 submit, that what the Trial Chamber is doing is a form of resentencing.

5 It may not be resentencing in the name way, in which one would perhaps in

6 England, for example, when after receiving certain reports one might go

7 back and look at sentence again, but it is, nonetheless, a resentencing.

8 And if it is a resentencing, then the Trial Chamber is bound by the

9 Statute and by the Rules, and Article 4 and Rule 101(B), taken together,

10 make it mandatory for the Trial Chamber to consider all the matters

11 enumerated in Article 24, which, as the Court knows, involve not only the

12 circumstances of the crimes themselves but also the circumstances of the

13 offenders.

14 It was for that reason that we felt it appropriate to make our

15 motion, to give the Court a chance to rule on that and to say that perhaps

16 the motion filed on behalf of Delic, while not couched in exactly the same

17 terms, must have had a great deal of merit insofar as it suggested that

18 the whole picture should be looked at.

19 I would also say, Your Honours, perhaps that clearly one thing

20 that the Appeals Chamber had in mind was that by -- by remitting the case

21 to a new Trial Chamber, it would preserve the right of appeal. But an

22 interesting question was what right of appeal really would be involved in

23 simply a question of yes or no on the question of do we adjust or not.

24 Clearly, if there were to be a substantive right of appeal, we would have

25 to look at the propriety of the sentences, not only just in terms of the

1 Appeals Chamber's ruling, but how does that reflect the criminality in the

2 circumstances of the accused as it appears from the entire record?

3 So I suggest, Your Honour, that this Trial Chamber is to some

4 extent in a dilemma not of its own making, and even though it may not be

5 appropriate for it to pass judgement on the Appeals Chamber's

6 jurisdiction, it is certainly appropriate for it to pass judgement on its

7 own jurisdiction. And I would respectfully suggest that that's almost

8 inevitable in the circumstances of this case.

9 Unless the Court has any questions, Your Honour, I don't believe I

10 have any more submissions.

11 [Trial Chamber confers]

12 JUDGE MAY: No. Thank you, Mr. Murphy.

13 MR. MURPHY: Thank you, Your Honour.

14 JUDGE MAY: The Trial Chamber will consider these matters. We

15 will not be in a position to pass sentence today. We will reflect on

16 them, and we will pass sentence on a date of which the parties will be

17 notified.

18 The Court will rise.

19 --- Whereupon the hearing adjourned at 11.46 a.m.

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