1 Tuesday, 28 November 2006

2 [Appeal Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE GUNEY: [Interpretation] Good morning to all. Let me begin

7 by greeting the interpreters and representatives of the Registry and

8 making sure that everything is in order. I would also like to greet the

9 appellant in this case, Mr. Blagoje Simic, as well as the representatives

10 from the Office of the Prosecutor and the Defence counsel.

11 Mr. Registrar, could you kindly announce the case before us today.

12 Please call the case.

13 THE REGISTRAR: Good morning, Your Honours. This is case number

14 IT-95-9-A, the Prosecutor versus Blagoje Simic.

15 JUDGE GUNEY: [Interpretation] Thank you very much.

16 I would now like to know whether the appellant is in a position to

17 hear and understand the proceedings in a language he understands.

18 Mr. Simic.

19 THE APPELLANT: [Interpretation] Yes.

20 JUDGE GUNEY: [Interpretation] Now can we have the appearances,

21 starting with counsel for the appellant.

22 MR. PANTELIC: Good morning, Your Honours, I am Igor Pantelic,

23 Defence counsel for Blagoje Simic. Thank you.

24 MR. MURPHY: Good morning, Your Honours, Peter Murphy, co-counsel

25 for Dr. Simic.

1 JUDGE GUNEY: [Interpretation] Thank you very much.

2 Let me turn to the representatives of the Office of the

3 Prosecutor.

4 MR. KREMER: Good morning, Your Honours. Peter Kremer, Barbara

5 Goy, and Steffen Wirth for the Office of the Prosecutor. Our case manager

6 Sebastiaan van Hooydonk is with us.

7 JUDGE GUNEY: Thank you very much.

8 [Interpretation] As the registrar has announced, today's hearing

9 will deal with the case of the Prosecutor versus Blagoje Simic. As

10 indicated in the Scheduling Order of 2 November 2006, the Appeals Chamber

11 is sitting today to render its judgement in this case. This hearing is

12 held pursuant to Rule 117(D) of the Rules of Procedure and Evidence of the

13 Tribunal. In accordance with Tribunal practice, I am not going to read

14 out the entire text of the judgement, but only its disposition. After

15 recalling the major issues raised within the framework of the appellate

16 proceedings, I intend to convey to you the findings of the Appeals

17 Chamber.

18 I would like to point out that the following summary is not an

19 integral part of the judgement. The authoritative version of the findings

20 and reasons given by the Appeals Chamber can be found only in the written

21 text of the judgement, copies of which will be made available to the

22 parties following this hearing.

23 Bearing this in mind, I am now moving on to the summary of the

24 judgement.

25 This case concerns events that took place from around September

1 1991 to 31st of December, 1993, in the municipality of Bosanski Samac,

2 north-east of what was then the Republic of Bosnia and Herzegovina. On

3 the 17th of April, 1992, paramilitary forces and the Serbian police took

4 over this municipality by force and set up the Crisis Staff of the Serbian

5 municipality of Bosanski Samac. The Crisis Staff was subsequently

6 re-named the War Presidency and was established as the highest civilian

7 authority in the municipality of Bosanski Samac. In its judgement, the

8 Trial Chamber noted that non-Serb civilians were persecuted after the

9 municipality had been taken over and that a joint criminal enterprise was

10 responsible for the persecution of these civilians.

11 Mr. Blagoje Simic is a physician by profession. He was appointed

12 president of the Crisis Staff on the 17th of April, 1992. In the Trial

13 Chamber's judgement, it concluded that the joint criminal enterprise

14 behind the persecution of non-Serb civilians could not have been carried

15 out without the concerted action of the Serbian police, the paramilitary

16 forces of the Yugoslav People's Army (JNA), and the Crisis Staff. The

17 Trial Chamber also concluded that the appellant, in his capacity as

18 president of the Crisis Staff, was the highest-ranking civilian authority

19 in the municipality of Bosanski Samac and was at the head of the joint

20 criminal enterprise at the municipal level.

21 The Trial Chamber found the appellant guilty of Count 1 under

22 Article 7(1) of the Tribunal's Statute. This count corresponds to

23 persecution as a crime against humanity for the following underlying acts:

24 Unlawful arrest and detention of civilian Bosnian Muslims and Bosnian

25 Croats; cruel and inhumane treatment in the form of beatings, torture,

1 forced labour, and confinement under inhumane conditions, and deportation

2 and forcible transfer. The Trial Chamber did not enter a conviction with

3 regard to Count 2, deportation as a crime against humanity, on the ground

4 that cumulative findings of guilt could not be pronounced for Counts 1

5 and 2. Count 3, unlawful deportation or transfer as a grave breach of the

6 Geneva Conventions, was dismissed on the ground that there were defects in

7 the form of the Fifth Amended Indictment. The Trial Chamber, by majority

8 pronounced a sentence of 17 years' of imprisonment, with Judge Lindholm

9 dissenting.

10 Mr. Simic filed an appeal on the 17th of November, 2003, he

11 appealed the judgement of Trial Chamber II on the -- pronounced on the

12 29th of October, 2003. He appealed against both the conviction and the

13 sentence he received. His appeal initially consisted of 18 grounds of

14 appeal, but he later withdrew the 15th and 17th grounds of appeal. The

15 Appeals Chamber has examined the 16 remaining grounds of appeal.

16 I will now review the grounds of appeal submitted by Mr. Simic. I

17 will start with the first and second grounds of appeal dealing with

18 defects in the form of the indictment.

19 First and second grounds of appeal: Defects in the indictment.

20 In the first and second grounds of appeal, the appellant argues

21 that the Trial Chamber erred in law by convicting him of participating in

22 a joint criminal enterprise. He maintains that this form of

23 responsibility was not provided for in the indictment, and that this

24 defect was prejudicial to the preparation and conduct of his defence. He

25 submits that this rendered his trial unfair.

1 The Appeals Chamber recalls that the indictment in this case was

2 amended five times. There were, therefore, six versions of the

3 indictment, the last one being the Fifth Amended Indictment.

4 The Appeals Chamber first examined the issue of whether there were

5 defects in the form of the indictment, as the appellant maintained. The

6 Appeals Chamber considered in particular whether the various indictments

7 had sufficiently informed the appellant that he was being accused of

8 participating in a joint criminal enterprise.

9 The Appeals Chamber recalls that participation in a joint criminal

10 enterprise must be specifically alleged in an indictment if the

11 Prosecution intends to rely on this form of responsibility. The fact that

12 the expression "joint criminal enterprise" does not appear in the

13 indictment does not necessarily mean that the indictment is defective.

14 Nevertheless, although a joint criminal enterprise is a means of

15 committing a crime under Article 7(1) of the Statute, it is not sufficient

16 for the indictment to refer to this provision of the Statute in general

17 terms. The reference to the form of responsibility as stated in the

18 indictment must provide sufficient information to the Defence and to the

19 Trial Chamber that the Prosecution intends to rely on joint criminal

20 enterprise.

21 The Appeals Chamber examined the six versions of the indictment in

22 this case. For reasons set out in the judgement, the Appeals Chamber by

23 majority of its members, with Judge Shahabuddeen and Judge Schomburg

24 dissenting, found that none of the amended indictments had correctly

25 informed the appellant that he was being accused of participating in a

1 joint criminal enterprise. The Appeals Chamber's finding results in

2 particular from the ambiguity of the terms used by the Prosecution and the

3 circumstances surrounding the third and fourth amendments to the

4 indictment. Having determined that the indictment was defective, the

5 Appeals Chamber then examined whether the defects in the form of the

6 indictment had impaired the appellant's ability to prepare and conduct his

7 defence.

8 The Appeals Chamber recalls that vagueness in an indictment not

9 remedied by information that is clear, consistent, and provided in a

10 timely fashion, causes prejudice to an accused. It can be concluded that

11 a defective indictment did not prejudice the accused only if it is shown

12 that the preparation of his defence was not seriously impaired.

13 In the present case, the Prosecution submitted that the appellant

14 had waived his right to raise the issues of defects in the indictment on

15 appeal. For reasons set out in the judgement, the Appeals Chamber found

16 by majority, with Judge Shahabuddeen and Judge Schomburg dissenting, that

17 the appellant had not waived his right. It follows that the burden to

18 prove that the appellant was not prejudiced in the preparation of his

19 defence fell on the Prosecution.

20 For reasons set out in the judgement, the Appeals Chamber found

21 that the appellant was not put on notice that he was being accused of

22 participating in a joint criminal enterprise; it only happened when the

23 Prosecution had finished presenting its case. The Appeals Chamber

24 considers that the information provided by the Prosecution was clear, but

25 was by no means provided in a timely fashion.

1 The vagueness in the indictment at issue here is not a minor

2 defect. It concerns an essential guarantee that an indictment must

3 satisfy, which is to put the accused on notice of the charges against him.

4 In the present case, the Prosecution was unable to show that the

5 preparation of the appellant's defence was not seriously impaired. The

6 Appeals Chamber, by majority, with Judge Shahabuddeen and Judge Schomburg

7 dissenting, considers that defects in the indictment rendered the

8 appellant's trial unfair. The Appeals Chamber grants the first and

9 seconds grounds of appeal and, consequently, reverses the appellant's

10 conviction for participating in a joint criminal enterprise.

11 Having reversed the appellant's conviction for participation in a

12 joint criminal enterprise, the Appeals Chamber examined the question of

13 whether his responsibility could be established for another form of

14 responsibility. The Appeals Chamber recalls that it asked questions to

15 this effect of the parties during the appeals hearing of the 2nd of June,

16 2006. The Prosecution and the appellant both submitted that the

17 appellant's responsibility could be considered from the point of view of

18 aiding and abetting persecution.

19 In the fourth ground of appeal, the appellant, however, submits

20 that the evidence adduced in his trial did not make it possible to

21 establish that he was criminally responsible for persecution. The Appeals

22 Chamber first examined this general ground before considering the other

23 grounds of appeal, 3 to 14.

24 I will now present the findings of the Appeals Chamber regarding

25 the fourth ground of appeal: The appellant's criminal responsibility.

1 Fourth ground of appeal.

2 In the fourth ground of appeal, the appellant submits that the

3 Trial Chamber erred in law by elaborating a hybrid theory of

4 responsibility that is incompatible with the provisions of 7(1) and 7(3)

5 of the Statute. He maintains that he was found guilty under Article 7(1)

6 of the Statute for acts of persecution committed by other persons and for

7 having failed to prevent or punish such acts.

8 The Appeals Chamber examined the arguments of the appellant and

9 the findings of the Trial Chamber. For reasons set out in the judgement,

10 the Appeals Chamber finds that the analysis proposed by the appellant is

11 erroneous. Numerous findings establish that the appellant himself took an

12 active part in the crime of persecution. For this reason, the Appeals

13 Chamber dismisses the fourth ground of appeal.

14 Having dismissed the appellant's general ground, the Appeals

15 Chamber proceeded to examine the other grounds of appeal, 3 to 14. The

16 Appeals Chamber recalls that this examination was intended to determine

17 whether the appellant's responsibility could be established for aiding and

18 abetting persecution. Upholding the Tribunal's jurisprudence, the

19 actus reus of aiding and abetting stems from acts that directly assist,

20 encourage, or provide moral support for the commission of a crime and have

21 a significant impact on its perpetration. The mens rea for aiding and

22 abetting lies in the fact that the acts committed by the aider and abettor

23 contribute to the commission of the crime by the principal perpetrator.

24 For the crime of persecution, which entails a dolus specialis, the aider

25 and abettor must not only have knowledge of the crime he is aiding and

1 abetting, he must also be aware of the discriminatory intent of the

2 perpetrators of the crime. The aider and abetter need not necessarily

3 share this intent, but he must be aware of the discriminatory context in

4 which the crime will be committed and know that his support or

5 encouragement has a significant impact on its perpetration.

6 The Appeals Chamber recalls that the Trial Chamber found the

7 appellant guilty of persecution on the grounds of the following underlying

8 acts: Unlawful arrest and detention, cruel and inhumane treatment in the

9 form of beatings, torture, and confinement under inhumane conditions,

10 forced labour, deportation, and forcible transfer.

11 I will now present the findings of the Appeals Chamber for the

12 grounds of appeal that refer to these findings of the Trial Chamber. The

13 Appeals Chamber first examined the third, fifth, sixth, and seventh

14 grounds of appeal. I will start with the -- deal with the third, fifth,

15 sixth, and seventh grounds of appeal, starting with the third ground of

16 appeal.

17 In the third ground of appeal, the appellant argues that the Trial

18 Chamber erred in fact by finding that a common plan to persecute non-Serb

19 civilians existed in the municipality of Bosanski Samac. The Appeals

20 Chamber finds that by granting the first and second grounds of appeal, the

21 third ground of appeal had become moot; it is therefore dismissed.

22 The Appeals Chamber notes that the findings of the Trial Chamber

23 regarding the existence of a joint criminal enterprise in Bosanski Samac

24 were not taken into consideration when determining the responsibility of

25 the appellant. Conversely, the Appeals Chamber relied on the factual

1 findings underlying the Trial Chamber's determination that there was a

2 joint criminal enterprise.

3 Fifth ground of appeal.

4 In the fifth ground of appeal, the appellant submits that the

5 evidence considered by the Trial Chamber did not establish that he had

6 actively participated in the crimes committed in the municipality of

7 Bosanski Samac. The Appeals Chamber considers that this ground

8 essentially repeats the arguments presented by the appellant to support

9 his third and fourth grounds of appeal. Since the Appeals Chamber had

10 dismissed those grounds, the give the ground of appeal is likewise

11 dismissed.

12 Sixth ground of appeal.

13 In the sixth ground of appeal, the appellant submits that the

14 Trial Chamber erred in law and in fact by finding that he had the

15 discriminatory intent required for the underlying acts of persecution.

16 For reasons set out in the judgement, the Appeals Chamber finds that it

17 was not necessary to consider this question in order to determine whether

18 the appellant had the requisite mens rea for aiding and abetting

19 persecution. The sixth ground of appeal is therefore dismissed.

20 Seventh ground of appeal.

21 In the seventh ground of appeal, the appellant submits that the

22 Trial Chamber erred in law and in fact by basing his responsibility on the

23 fact that he was the highest-ranking civilian authority in the

24 municipality of Bosanski Samac, even though it found that he did not have

25 the power to control the perpetrators of the crimes. Since the Appeals

1 Chamber has reversed the appellant's conviction for participating in a

2 joint criminal enterprise, it considers it is unnecessary to deliberate

3 whether the Trial Chamber erred in law by establishing his guilty based on

4 his position of authority. Furthermore, the Appeals Chamber recalls that

5 in order to assess the appellant's responsibility as an aider and abettor

6 to persecution, it is not necessary to establish whether he had the power

7 to control the perpetrators of the crimes. For these reasons, the Appeals

8 Chamber finds that the seventh ground of appeal has become moot.

9 I will now present the findings of the Appeals Chamber for grounds

10 of appeal eight to 14 that deal with the underlying acts of persecution.

11 Eighth ground of appeal: Unlawful arrests and detention.

12 In the eighth ground of appeal, the appellant submits that the

13 Trial Chamber erred in law and in fact by finding him guilty of

14 persecution in the form of unlawful arrests and detention. For reasons

15 set out in the appeals judgement, the Appeals Chamber finds that the

16 appellant failed to show that no reasonable trier of fact could infer from

17 the evidence presented that he was connected to the unlawful arrests and

18 detention. The Appeals Chamber also finds that the only possible

19 inference in the circumstances was that the appellant was aware of the

20 discriminatory context in which these acts were perpetrated, and that he

21 knew that his support had a significant impact on their perpetration. For

22 these reasons, the Appeals Chamber considers that the appellant is

23 responsible for aiding and abetting persecution in the form of the

24 unlawful arrest and detention of non-Serb civilians. The eighth ground of

25 appeal is therefore dismissed.

1 As far as the ninth, 10th, and 12th grounds of appeal are

2 concerned: Cruel and inhumane treatment.

3 In the ninth, 10th, and 12th grounds of appeal, the appellant

4 argues that the Trial Chamber erred in law and in fact by finding him

5 guilty of persecution due to cruel and inhumane treatment in the form of

6 beatings, ninth ground of appeal; torture, 10th ground of appeal; and

7 confinement under inhumane condition, 12th ground of appeal. For each of

8 those grounds, the Appeals Chamber reached the following findings:

9 The Appeals Chamber, by majority, Judge Shahabuddeen and Judge

10 Schomburg dissenting, finds that no reasonable trier of fact would be

11 satisfied beyond a reasonable doubt that the appellant provided

12 significant support to the perpetration of persecution due to cruel and

13 inhumane treatment in the form of beatings and torture inflicted against

14 detained persons in Bosanski Samac. For this reason, the Appeals Chamber

15 finds by majority that no reasonable trier of fact would be satisfied

16 beyond a reasonable doubt that the appellant was an aider and abettor of

17 these acts.

18 The ninth and 10th grounds of appeal are therefore partially

19 granted.

20 With regard to confinement in inhumane conditions, the Appeals

21 Chamber concludes that the findings of the Trial Chamber establish that a

22 reasonable trier of fact would be satisfied beyond a reasonable doubt that

23 the appellant's deliberate refusal to provide adequate medical care to

24 detained persons in Bosanski Samac constitutes substantial assistance to

25 confinement under inhumane conditions. The Appeals Chamber also concludes

1 that the findings of the Trial Chamber establish that a reasonable trier

2 of fact would be satisfied beyond a reasonable doubt that the appellant

3 was aware that his assistance had a significant impact of the perpetration

4 of this crime. These elements are sufficient to establish that a

5 reasonable trier of fact would be satisfied beyond a reasonable doubt that

6 the appellant is reasonable for aiding and abetting persecution in the

7 form of the confinement of non-Serb prisoners under inhumane conditions.

8 For this reason, the Appeals Chamber dismisses the 12th ground of appeal.

9 11th ground of appeal: Forced labour.

10 In the 11th ground of appeal, the appellant submits that the Trial

11 Chamber erred in law and in fact by finding him guilty of persecution due

12 to forced labour. The Appeals Chamber has reached the conclusion that a

13 reasonable trier of fact would be satisfied beyond a reasonable doubt that

14 the appellant provided significant assistance to persecution in the form

15 of forced labour by Bosnian Croats and Bosnian Muslims. The Appeals

16 Chamber also finds that the only possible reasonable inference in view of

17 the evidence is that the appellant was aware of the discriminatory context

18 in which the forced labour was perpetrated and that he knew that his

19 support had a significant impact on the perpetration of this crime.

20 The Appeals Chamber considers that with regard to the findings of

21 the Trial Chamber, a reasonable trier of fact would be satisfied beyond a

22 reasonable doubt that the appellant was responsible for aiding and

23 abetting persecution in the form of forced labour. The 11th ground of

24 appeal is therefore dismissed.

25 As far as the 13th and 14th grounds of appeal are concerned, they

1 are as follows: Deportation and forcible transfer.

2 In the 13th and 14th grounds of appeal, the appellant argues that

3 the Trial Chamber erred in law and in fact by finding him guilty of

4 deportation as a crime against humanity and of an underlying act of

5 persecution and also by finding him guilty of persecution in the form of

6 forcible transfer. The Appeals Chamber notes that the Trial Chamber made

7 a distinction between forcible transfer and unlawful deportation as

8 underlying acts of persecution. The Appeals Chamber recalls that for a

9 conviction of persecution, it is not necessary to make a distinction

10 between these two types of acts; the criminal responsibility of the

11 accused is sufficiently reflected in the concept of forced displacement.

12 The Appeals Chamber uses this term in its judgement to designate acts of

13 forcible transfer and unlawful deportation referred to by the Trial

14 Chamber.

15 In the 13th ground of appeal, the appellant raises arguments

16 regarding deportation as a crime against humanity. The Appeals Chamber

17 recalls that the appellant was not found guilty under Count 2 and thus

18 dismisses this part of the 13th ground of appeal.

19 The Appeals Chamber also dismissed the appellant's argument that

20 forcible transfer and deportation do not have the same gravity as the

21 crimes listed in Article 5 of the Statute. For reasons set out in the

22 judgement, the Appeals Chamber finds that this condition has been

23 satisfied in this case and therefore dismisses the 14th ground of appeal.

24 Finally, the Appeals Chamber has reached the conclusion that a

25 reasonable trier of fact would be satisfied beyond a reasonable doubt that

1 the appellant provided significant support to the forced displacement of

2 17 non-Serb civilians as an underlying act of persecution. The Appeals

3 Chamber also finds that the only possible inference with regard to the

4 evidence is that the appellant was aware of the discriminatory context in

5 which the crime was committed and he knew that his support had a

6 significant impact on the perpetration of the crime. The Appeals Chamber

7 considers that a reasonable trier of fact would be satisfied beyond a

8 reasonable doubt that the appellant is responsible for aiding and abetting

9 persecution due to the forced displacement of these 17 non-Serb civilians

10 and dismisses grounds of appeal 13 and 14 in their entirety.

11 Bearing in mind the previous findings, the Appeals Chamber upholds

12 the conviction of the appellant for aiding and abetting persecution in the

13 form of the unlawful arrests and detention of non-Serb civilians,

14 confinement of non-Serb prisoners in inhumane conditions, forced labour by

15 Bosnian Croats and Bosnian Muslims, and forced displacement of non-Serb

16 civilians.

17 The Appeals Chamber by majority, Judge Shahabuddeen and Judge

18 Schomburg dissenting, has nonetheless reversed the appellant's conviction

19 of persecution due to cruel and inhumane treatment in the form of beatings

20 and torture.

21 Later I will present the Appeals Chamber's findings on how these

22 reversals and the re-characterisation of the appellant's criminal

23 responsibility impact the sentence.

24 I will now present the findings of the Appeals Chamber regarding

25 the 16th ground of appeal, which concerns an interlocutory decision

1 rendered by the Trial Chamber.

2 16th ground of appeal concerns the dismissal of the oral motion

3 for disclosure of a confidential document.

4 In the 16th ground of appeal, the appellant argues that the Trial

5 Chamber erred in law by dismissing his motion for the disclosure of Stevan

6 Todorovic's medical records. Mr. Todorovic was a co-accused of the

7 appellant until he pleaded guilty and was sentenced in separate

8 proceedings. Mr. Todorovic testified as a Prosecution witness during the

9 appellant's trial. His medical records were filed confidentially by the

10 Prosecution before the Trial Chamber, and the Chamber refused to disclose

11 them to the appellant. The appellant claims that this refusal rendered

12 his trial unfair because he was deprived of his right to examine Todorovic

13 on matters affecting his credibility or to present evidence establishing

14 that he was not a credible witness. The Appeals Chamber recalls that,

15 acting proprio motu, it authorised the appellant to obtain Todorovic's

16 medical records during the appellate proceedings.

17 The Appeals Chamber has considered the findings of the Trial

18 Chamber and concludes that the Trial Chamber erred in law in interpreting

19 the applicable law on the disclosure of Todorovic's medical records. For

20 reasons set out in the judgement, the Appeals Chamber has nonetheless

21 reached the conclusion that this error did not invalidate the trial

22 judgement. The Appeals Chamber considers that the appellant's right to a

23 fair trial, including his right to examine a witness against him or have

24 him examined, was not violated by the Trial Chamber's refusal to grant him

25 access to Todorovic's medical records.

1 For the reasons set out in the judgement, the Appeals Chamber has

2 dismissed the 16th ground of appeal. The Appeals Chamber furthermore

3 reminds the parties that the reasons for its decision of the 1st of June,

4 2006, rendered pursuant to Rules 115 and 94(A) of the Tribunal's Rules of

5 Procedure and Evidence are set out in the judgement.

6 I will now present the findings of the Appeals Chamber regarding

7 the appeal against the sentence. I will also present its findings on how

8 the quashed convictions pronounced by the Appeals Chamber impact the

9 sentence. I would recall that the Trial Chamber sentenced the appellant

10 to 17 years' imprisonment.

11 18th ground of appeal: Sentencing.

12 In the 18th ground of appeal, the appellant submits that the

13 sentence of 17 years is excessive and disproportionate and resulted in a

14 miscarriage of justice. He requests the Appeals Chamber to reverse this

15 decision and impose a sentence of no longer than seven years, following

16 the sentence recommended by Judge Lindholm in his partially dissenting

17 opinion. In the alternative, the appellant requests the Appeals Chamber

18 to adjust his sentence to reflect the fact that he was responsible for

19 aiding and abetting persecution or remit the issue of sentencing back to

20 the Trial Chamber.

21 The Appeals Chamber has considered the arguments of the appellant

22 and the findings of the Trial Chamber. For reasons set out in the

23 judgement, the Appeals Chamber finds that the appellant failed to show

24 that the Trial Chamber committed a discernible error in determining the

25 sentence and that it abused its discretion. The Appeals Chamber thus

1 dismisses the 18th ground of appeal.

2 Although the appellant was unable to identify any discernible

3 error, the Appeals Chamber recalls that by majority it quashed the

4 appellant's conviction for participating in a joint criminal enterprise.

5 The Appeals Chamber consequently re-characterised the appellant's criminal

6 conduct as aiding and abetting persecution. The Appeals Chamber by a

7 majority also invalidated the appellant's conviction for persecution due

8 to cruel and inhumane treatment in the form of torture and beating. Due

9 to these reversals, the question as to whether it was necessary to adjust

10 the sentence was raised.

11 Pursuant to Article 24 of the Statute, the Appeals Chamber

12 considered, proprio motu, the general practice regarding prison sentences

13 in the courts of the former Yugoslavia, the gravity of the offences

14 committed by the appellant, and the mitigating and aggravating

15 circumstance with regard to his personal situation. The Appeals Chamber

16 has reached the conclusion that the Trial Chamber's consideration of his

17 position of authority and his professional experience as a physician as

18 aggravating circumstances constituted discernible errors. The Appeals

19 Chamber thus did not consider these elements in its examination.

20 Nevertheless, considering that discriminatory intent is not an element of

21 aiding and abetting persecution, the Appeals Chamber has examined this to

22 see whether the appellant had this intent at the material time. The

23 Appeals Chamber recalls that discriminatory intent may constitute an

24 aggravating circumstance when this state of mind is not considered as an

25 element or ingredient of the crime. In the present case, the question of

1 whether the appellant shared the discriminatory intent of the perpetrators

2 of the crimes is relevant in determining his sentence.

3 The Appeals Chamber has examined the arguments of the appellant

4 according to which the Trial Chamber allegedly erred in considering that

5 he had discriminatory intent. For reasons set out in the judgement, the

6 Appeals Chamber finds that it was possible for a reasonable trier of fact

7 to conclude that the appellant shared the discriminatory intent of the

8 perpetrators of the confinement under inhumane conditions, forced labour,

9 and forced displacement. The Appeals Chamber has thus considered this

10 element as an aggravating circumstance.

11 Having concluded its examination, the Appeals Chamber finds that

12 the re-characterisation of the appellant's criminal conduct and quashing

13 of his conviction for acts of torture and beating require an adjustment of

14 the sentence of 17 years. Bearing in mind all the specific circumstances

15 of this case, the Appeals Chamber finds that the sentence should be

16 reduced. The Appeals Chamber by majority, Judge Liu dissenting, finds

17 that a sentence of 15 years' imprisonment is appropriate in this case.

18 I shall now move on to the disposition. I will read out the

19 disposition of the judgement rendered by the Appeals Chamber.

20 Mr. Simic, please stand up.

21 [The appellant stands]

22 JUDGE GUNEY: [Interpretation] Here is the disposition of the

23 judgement:

24 For the foregoing reasons, the Appeals Chamber, pursuant to

25 Article 25 of the Statute and Rules 117 and 118 of the Rules, noting the

1 written submissions of the parties and the arguments they presented at the

2 hearing held on the 2nd of June, 2006, sitting in open session, allows,

3 Judge Mohamed Shahabuddeen and Judge Wolfgang Schomburg dissenting, the

4 appellant's first and grounds of appeal; sets aside, Judge Mohamed

5 Shahabuddeen and Judge Wolfgang Schomburg dissenting, the appellant's

6 conviction under Article 7(1) of the Statute for committing persecutions

7 by way of his participation in a joint criminal enterprise under Count 1

8 of the Fifth Amended Indictment; finds, Judge Mohamed Shahabuddeen and

9 Judge Wolfgang Schomburg dissenting, the appellant guilty under

10 Article 7(1) of the Statute for aiding and abetting persecutions through

11 the unlawful arrests and detention, the confinement under inhumane

12 conditions, the forced labour and the forcible displacements of Bosnian

13 Croat, Bosnian Muslims, and non-Serb civilians, under Count 1 of the Fifth

14 Amended Indictment; allows in part, Judge Mohamed Shahabuddeen and Judge

15 Wolfgang Schomburg dissenting, the appellant's ninth and 10th grounds of

16 appeal insofar as he suggests therein that the Trial Chamber's findings do

17 not disclose a sufficient basis for convicting him as an aider and abettor

18 of persecutions for the underlying acts of beatings and torture of

19 non-Serb civilian detainees; sets aside, Judge Mohamed Shahabuddeen and

20 Judge Wolfgang Schomburg dissenting, the appellant's conviction for

21 persecution under Count 1 of the Fifth Amended Indictment for cruel and

22 inhumane treatment of Bosnian Croat, Bosnian Muslims, and non-Serb

23 civilian detainees insofar as the conduct underlying this conviction

24 encompasses the acts of beatings and torture; dismisses entirely the

25 appellant's remaining grounds of appeal against conviction and sentence;

1 imposes a sentence of 15 years' imprisonment, subject to credit being

2 given under Rule 101(C) of the Rules for the period the appellant has

3 already spent in detention, and orders in accordance with Rule 103(C) and

4 Rule 107 of the Rules that the appellant is to remain in the custody of

5 the International Tribunal pending the finalisation of arrangements for

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

7 Done in English and French, the English text being authoritative.

8 Signed by Judge Mehmet Guney, the Presiding Judge of the Appeals Chamber;

9 signed by Judge Mohamed Shahabuddeen; signed by Judge Liu Daqun; signed by

10 Judge Andresia Vaz; signed by Judge Wolfgang Schomburg.

11 Judge Mohamed Shahabuddeen appends a dissenting opinion.

12 Judge Wolfgang Schomburg appends a dissenting opinion.

13 Judge Liu Daqun appends a partially dissenting opinion.

14 Dated this 28th day of November, 2006, at The Hague, the

15 Netherlands. Seal of the International Tribunal.

16 This concludes what is on our agenda for today. I suggest the

17 court stands adjourned, and the court now stands adjourned.

18 --- Whereupon the Appeal Judgement

19 adjourned at 10.04 a.m.

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