Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Tuesday, 8 April 2003

2 [Appeal Judgement]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 2.35 p.m.

6 JUDGE MERON: Please be seated.

7 Madam Registrar, please call the case.

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

9 IT-96-21-A bis, the Prosecutor versus Zdravko Mucic, Hazim Delic, and Esad

10 Landzo.

11 JUDGE MERON: Mr. Mucic, can you hear me? Mr. Delic? Mr. Landzo?

12 Thank you.

13 I would ask for the appearances of the parties. For the

14 Prosecution?

15 MR. FARRELL: Good afternoon, Your Honours. Appearing for the

16 Prosecution is Norman Farrell, Anthony Carmona, Helen Brady, and our case

17 manager is Nicola Bonfield.

18 JUDGE MERON: Thank you Mr. Farrell. Counsel for Mr. Mucic

19 MR. KUZMANOVIC: Good afternoon, Your Honours, Tom Kuzmanovic on

20 behave of Mr. Mucic. Mr. Morrison will not be here today.

21 JUDGE MERON: Thank you. Counsel for Mr. Delic.

22 MR. KARABDIC: Karabdic, Salih and Tom Moran.

23 JUDGE MERON: Thank you. Counsel for Mr. Landzo.

24 MS. SINATRA: I'm Cynthia Sinatra, along with Peter Murphy, my

25 illustrious colleague, for Mr. Landzo.

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1 JUDGE MERON: Thank you.

2 The Appeals Chamber of this International Tribunal will now

3 deliver its judgement in this case.

4 Following the practice of the Tribunal, I shall not read out the

5 text of the judgement except for the disposition. Save for the

6 disposition, I shall limit myself to a summary of the judgement.

7 The Appeals Chamber is sitting today to deliver its second

8 judgement in the case of Zdravko Mucic, Hazim Delic, and Esad Landzo.

9 Judge Gunawardana, who is hearing a trial in Arusha, has been unable to

10 join the Bench today, but he has fully taken part in the preparation of

11 the judgement. The proceedings without one Judge are authorised by Rule

12 15 bis of the Rules of Procedure and Evidence.

13 The three appellants were convicted after their trial on charges

14 that, in their respective capacities as commander, deputy commander, and

15 guard at the Celebici camp in Central Bosnia and Herzegovina, they were

16 responsible for killing, torturing, sexually assaulting, beating, and

17 otherwise subjecting detainees in that camp to cruel and inhumane

18 treatment. They received effective total sentences of imprisonment of,

19 respectively, seven, twenty, and fifteen years.

20 The appellants appealed against their convictions and sentences,

21 and the Appeals Chamber previously dealt with those appeals in a judgement

22 which: upheld their appeal against cumulative convictions based upon the

23 same acts for both grave breaches of the Geneva Conventions and violations

24 of the laws or customs of war, dismissing the charges for the violation of

25 the laws or customs of war; upheld an appeal by Delic against one of his

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1 convictions for wilful killing; upheld an appeal by the Prosecution

2 against the inadequacy of the sentence imposed upon Mucic; and upheld a

3 complaint by Mucic that the Trial Chamber had erred when sentencing him by

4 making an adverse reference to the fact that he had not given evidence at

5 the trial.

6 All the other ground of the appeal were dismissed, including a

7 challenge by Delic to a number of counts of wilful killing and torture

8 (constituted by rape and repeated incidents of forcible sexual

9 intercourse).

10 The Appeals Chamber remitted to a new Trial Chamber a number of

11 issues relating to the adjustment of the sentences which had been imposed

12 as a result of the rulings which had been made in the judgement on appeal.

13 The new Trial Chamber determined that: no adjustment should be made for

14 the dismissal of the cumulative convictions; the twenty-year sentence

15 imposed upon Delic should be reduced to eighteen years to reflect the

16 quashing of his conviction on one count of wilful killing; there

17 should be "a small reduction" given to Mucic as a result of that adverse

18 reference by the original Trial Chamber when sentencing him to the fact

19 that he had not given evidence at the trial; and an appropriate revised

20 sentence for Mucic was a sentence of imprisonment for nine years.

21 The three appellants have appealed again to the Appeals Chamber,

22 and the judgement being delivered today disposes of that second appeal.

23 For the purposes of this hearing, I propose to summarise briefly the

24 issues which arose during the second appeal and the rulings of the Appeals

25 Chamber in relation to those issues. I emphasise that this is a summary

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1 only, and that it forms no part of the judgement which is delivered. The

2 only authoritative account of the Appeal Chamber's rulings, and of its

3 reasons for those rulings, is to be found in the written judgement, copies

4 of which will be made available to the parties and to the public at the

5 conclusion of this hearing.

6 1. All three appellants challenged the power of the Appeals

7 Chamber to remit limited issues to a new Trial Chamber and the ruling by

8 the Trial Chamber that further evidence upon the issue of sentencing was

9 unnecessary.

10 The Appeals Chamber considered its power to remit such issues at

11 the time when it exercised that power in its judgement in the earlier

12 appeal. An appeal from the Trial Chamber's determination of those limited

13 issues does not give to the parties the opportunity to appeal against the

14 earlier decision of the Appeals Chamber to remit those limited issues to

15 the Trial Chamber. Nor does the Appeals Chamber consider it appropriate

16 to reconsider its power to remit limited issues to a new Trial Chamber.

17 Its power to remit limited issues is clear. The Appeals Chamber which

18 heard the first appeal was prevented by circumstances from conducting a

19 further hearing, before delivering its judgement, for the parties to make

20 submissions as to the appropriate sentences to be imposed. It, therefore,

21 had an inherent power to remit those issues to a Trial Chamber. None of

22 the evidence which the appellants wished to tender at the hearing was

23 relevant to the limited issues remitted, and the ruling by the new Trial

24 Chamber, effectively that such evidence was inadmissible, was correct.

25 There was in any event no prejudice suffered by the appellants, who gained

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1 benefits which they would not have had if the adjustments to their

2 sentences had been determined by the Appeals Chamber itself, and that is

3 the opportunity to be heard further upon the remitted issues in the light

4 of the judgement which had been given, and to appeal if they were

5 dissatisfied by the resolution of those issues.

6 2. All three appellants challenged the finding by the Trial

7 Chamber that no adjustment was appropriate despite the dismissal of the

8 cumulative convictions.

9 The Appeals Chamber had emphasised in its earlier judgement that

10 the governing criterion in sentencing is that the sentence should reflect

11 the totality of the offender's conduct (the "totality" principle), and

12 that it should reflect the gravity of the offences and the culpability of

13 the offender so that it is both just and appropriate. The Trial Chamber

14 in the judgement now under appeal concluded that the totality of the

15 criminal conduct of each of the three appellants had not been reduced by

16 reason of the quashing of the cumulative convictions.

17 The Appeals Chamber has accepted that the cumulative convictions

18 of themselves involve an additional punishment, not only by reason of the

19 social stigmatisation inherent in being convicted of that additional

20 crime, but also the risk that, under the law of the State enforcing the

21 sentence, the eligibility of a convicted person for early release will

22 depend to some extent upon the number or nature of the convictions

23 entered. The quashing of the cumulative convictions, however, removed the

24 punishment involved in the additional convictions themselves. The issue

25 which the new Trial Chamber had to determine in the circumstances of the

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1 present case was whether, in determining the length of the concurrent

2 sentences imposed, the original Trial Chamber had also added to the length

3 of those concurrent sentences because of those additional convictions.

4 From statements made by the original Trial Chamber in the course of the

5 proceedings and in its judgement, it was open to the new Trial Chamber to

6 conclude, as it did, that the sentences would have been the same without

7 the cumulative convictions.

8 3. Zdravko Mucic challenged the finding of the new Trial Chamber

9 that there should be a "small" reduction to his sentence as a result of

10 the adverse reference by the original Trial Chamber to the fact that he

11 had not given evidence at the trial.

12 The new Trial Chamber held that it was not possible to ascertain

13 the precise effect, if any, which this comment may have had on the

14 sentence imposed, but that it was not in a position to say that it had had

15 no effect. Mucic has argued that the error made by the original Trial

16 Chamber, by ignoring the burden and standard of proof, was so basic a

17 defect that he was entitled to a reduction as substantial as the error

18 which had been made. The Appeals Chamber has held that such an approach

19 is fundamentally defective. An appellate tribunal does not compensate an

20 appellant for the fact that an error was made; it adjusts the sentence to

21 remove the effect of the error which was made. The Appeals Chamber has

22 not been persuaded that the new Trial Chamber's characterisation of the

23 reduction warranted by the error made by the original Trial Chamber as

24 "small" was erroneous.

25 4. Zdravko Mucic has also changed the nine-year sentence imposed

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1 by the new Trial Chamber in substitution for the original Trial Chamber's

2 sentence of seven years.

3 The Appeals Chamber had earlier held that the original Trial

4 Chamber, by imposing a sentence of seven years, had failed adequately to

5 take into account (a) the influential effect of a camp commander

6 encouraging or promoting crimes and an atmosphere of lawlessness within

7 the camp by his ongoing failure to exercise his duties of supervision,

8 (b), the gravity of his offences, and specifically the gravity of the

9 underlying crimes, and (c) the fact that both direct and superior

10 responsibility was involved in the wilful causing of great suffering or

11 serious injury to body or health by virtue of the inhumane conditions in

12 the camp. The Appeals Chamber has now held that there was no error made

13 by the new Trial Chamber in imposing a sentence of nine years, bearing in

14 mind the inherent gravity of the criminal conduct of Mucic, and the form

15 and degree of his participation in the crimes for which he was convicted.

16 5. Hazim Delic has challenged the reduction to his twenty-year

17 sentence by only two years following the quashing of one conviction for

18 wilful killing.

19 The new Trial Chamber assessed such a reduction upon the basis

20 that there had been some reduction in the totality of Delic's criminality

21 as a result of that conviction being quashed, but that the reduction was

22 slight given the very serious offences for which Delic remains convicted.

23 The Appeals Chamber has not been persuaded that the new Trial Chamber made

24 any errors of law, or that it erred in the exercise of its discretion, in

25 imposing the sentence of eighteen years for the remaining convictions.

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1 The new Trial Chamber had correctly approached its task upon an overall

2 assessment of what was appropriate to the crimes for which Delic remained

3 convicted without reference to the evidence supporting the count which had

4 been quashed.

5 6. Hazim Delic has also sought the reconsideration by the Appeals

6 Chamber of its judgement in the previous appeal, when it rejected his

7 appeal against his conviction upon three other counts.

8 Delic has argued that there has been a "significant" change in the

9 law relevant to the present case since the earlier judgement of the

10 Appeals Chamber. He claims that, in the judgement of the Appeals Chamber

11 in the Kupreskic case, the Appeals Chamber laid down a "new test" of the

12 sufficiency of the evidence to support a conviction which, if it had been

13 applied by the Appeals Chamber in its earlier judgement, would have

14 resulted in the quashing of his convictions in respect of Counts 3, 18,

15 and 31 of the indictment.

16 There were two issues which arose in the relation to this

17 application. The first was whether the Appeals Chamber has power to

18 reconsider its judgements, as opposed to the power to review them in

19 accordance with Article 26 of the Tribunal's Statute. The second was

20 whether, if such a power exists, the Appeals Chamber should reconsider its

21 previous judgement in the present case. The Appeals Chamber is

22 unanimously of the view that the application for reconsideration should be

23 rejected. Judges Shahabuddeen, Hunt, and Gunawardana accept that the

24 Appeals Chamber has the power to reconsider its judgements, but they are

25 of the view that the application in this case should be rejected on its

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1 merits. Judge Meron and Judge Pocar do not find it necessary to determine

2 whether the Appeals Chamber has such a power, and they reserve their

3 position on this issue. They agree that there was no intervening change

4 in the governing legal standard. Judge Shahabuddeen has also filed a

5 Separate Opinion in relation to this issue.

6 The Appeals Chamber is satisfied that, in considering whether the

7 original Trial Chamber's conclusion of Delic's guilt beyond reasonable

8 doubt upon those counts was one which no reasonable tribunal of fact could

9 have reached, the Appeals Chamber had in its earlier judgement applied the

10 same test as that applied in the Kupreskic case, and that the claim that

11 the Appeals Chamber had applied a "new test" in the Kupreskic case is

12 misconceived. The distinction to which the Appeals Chamber had referred

13 in that judgement, between the reliability (or the quality) of a witness's

14 evidence as opposed to the credibility (or truthfulness) of that witness,

15 was directed to the issue of identification raised in that appeal in

16 relation to the only one witness who had identified the accused. The

17 Trial Chamber in the Kupreskic case had acknowledged the criticisms of the

18 credibility of that witness, but had stated that those criticisms had been

19 outweighed by the impression which the witness had made upon the Chamber

20 when she was giving evidence. When determining whether no reasonable

21 tribunal of fact could have accepted that witness's evidence, it was

22 appropriate for the Appeals Chamber to have referred to the uncertainty

23 and the inherent frailties of identification evidence. That distinction

24 is a well-known one, and one which is not new to the Tribunal's

25 jurisprudence. It was for these reasons that the application for

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1 reconsideration has been rejected.

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

3 judgement, and at this point I would invite Mr. Mucic, Mr. Delic, and

4 Mr. Landzo to stand.

5 [The appellants stand up]

6 JUDGE MERON: The disposition at the end of the judgement is as

7 follows: For the following reasons:

8 1. The appeals against sentence are dismissed.

9 2. The sentences imposed by the Trial Chamber on 9 October 2001

10 are confirmed.

11 3. The time spent in custody for which each of the appellants is

12 entitled to credit is, accordingly, as follows:

13 For Zdravko Mucic, from 18 March 1996 to the date of this

14 Judgement; and for both Hazim Delic and Esad Landzo, from 2 May 1996 to

15 the date of this Judgement.

16 4. The application by Hazim Delic to have his appeal against

17 conviction reconsidered is rejected.

18 Rendered this 8th day of April, 2003 at The Hague, Netherlands in

19 English and French, the English version being the authoritative version.

20 The Judgement is signed by Judge Theodor Meron, President of this

21 International Tribunal and Presiding Judge of the Appeals Chamber.

22 Judge Meron and Judge Pocar append a joint separate opinion.

23 Judge Shahabuddeen also appends a separate opinion.

24 I shall now ask the registrar to deliver copies of the Judgement

25 to the parties.

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1 You may be seated.

2 [The appellants sit down]

3 JUDGE MERON: The Appeals Chamber stands adjourned.

4 --- Whereupon the Appeal Judgement adjourned

5 at 2.59 p.m.