1 Tuesday, 15 December 2015
2 [Appeals Judgement]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 2.59 p.m.
6 JUDGE POCAR: Good afternoon, everyone.
7 Madam Registrar, could you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is the case
9 IT-03-69-A, The Prosecutor versus Jovica Stanisic and Franko Simatovic.
10 JUDGE POCAR: Thank you.
11 May I now have the appearances of the parties, beginning with the
12 Prosecution, please.
13 MS. JARVIS: Good afternoon, Mr. President and Your Honours.
14 Michelle Jarvis appearing for the Prosecution, together with Mathias
15 Marcussen, Barbara Goy, Grace Harbour, and our Case Manager today, Colin
16 Nawrot. Thank you.
17 JUDGE POCAR: Thank you.
18 For the Defence, counsel for Mr. Stanisic.
19 MR. JORDASH: Good afternoon, Your Honours. Myself, Wayne
20 Jordash, Scott Martin, and Emmanuel Marchand for Mr. Stanisic.
21 JUDGE POCAR: Thank you.
22 And for Mr. Simatovic.
23 MR. BAKRAC: [Interpretation] Good afternoon, Your Honour. Good
24 afternoon to everyone in the courtroom. The Defence of Mr. Simatovic is
25 represented by Mihajlo Bakrac, Mr. Vladimir Petrovic and Ms. Melani
2 JUDGE POCAR: Before we continue, we would like to confirm that
3 the parties are able to follow the proceedings in a language they
5 Mr. Stanisic, can you follow the proceedings?
6 May I repeat: Mr. Stanisic, can you follow the proceedings?
7 May I be confirmed whether Mr. Stanisic can follow the
8 proceedings? Thank you.
9 And Mr. Simatovic? Thank you.
10 The Appeals Chambers convenes today to pronounce publicly its
11 Judgement in the case of The Prosecutor versus Jovica Stanisic and Franko
12 Simatovic, which was rendered on 9 December 2015.
13 Following the practice of the Tribunal, I will not read out the
14 text of the Judgement, except for the disposition. Instead, I will
15 summarise the findings of the Appeals Chamber. This oral summary does
16 not constitute any part of the official and authoritative Judgement of
17 the Appeals Chamber, which will be distributed in writing to the parties
18 at the close of the hearing.
19 The events giving rise to this appeal took place between
20 April 1991 and 31 December 1995 in the Serbian Autonomous Region of
21 Krajina, or the SAO Krajina, and the Serbian autonomous Area of Slavonia,
22 Baranja, and Western Srem, or the SAO SBWS in Croatia, as well as in the
23 municipalities of Bijeljina, Bosanksi Samac, Doboj, Sanski Most, Trnovo,
24 and Zvornik in Bosnia-Herzegovina.
25 Throughout 1991, Mr. Stanisic held the position of Deputy Chief
1 of the State Security Service, also known as the SDB, in the Ministry of
2 Interior of the Republic of Serbia. From 31st December 1991 and until
3 October 1998, he was Chief of the Serbian SDB.
4 Mr. Simatovic began to work in the second administration of the
5 Serbian SDB in Belgrade from at least December 1990. On 29 April 1992,
6 Mr. Simatovic was appointed as the Deputy Chief of the second
7 administration of the Serbian SDB, effective as of 1st May, 1992. On
8 12 May, 1993, Mr. Simatovic was appointed as a special advisor in the
10 The Prosecution charged Mr. Stanisic and Mr. Simatovic with
11 committing crimes in the localities mentioned previously through their
12 participation in a joint criminal enterprise which allegedly came into
13 existence no later than April 1991 and continued until at least 31st
14 December 1995. The alleged common criminal purpose of the JCE was the
15 forcible and permanent removal of the majority of non-Serbs, principally
16 Croats, Bosnian Muslims, and Bosnian Croats, from large areas of Croatia
17 and Bosnia and Herzegovina.
18 The indictment alleged that this involved the commission of
19 murder as a violation of the laws or customs of war and as a crime
20 against humanity, as well as deportation, other inhumane acts (forcible
21 transfer) and persecution through murder, deportation, and other inhumane
22 acts as crimes against humanity.
23 Alternatively, the indictment alleged that the objective of the
24 JCE involved deportation and forcible transfer, while murder and
25 persecution were reasonably foreseeable to Mr. Stanisic and
1 Mr. Simatovic.
2 In addition, Mr. Stanisic and Mr. Simatovic were charged with
3 having planned, ordered and/or otherwise aided and abetted in the
4 planning, preparation and/or execution of the crimes alleged in the
6 The Trial Chamber - composed of Judge Orie, Judge Picard, and
7 Judge Gwaunza - found that many of the crimes alleged in the indictment
8 were indeed perpetrated by various Serb forces in the above-mentioned
9 localities in Croatia and in Bosnia and Herzegovina. However, the Trial
10 Chamber, Judge Picard dissenting, found neither Mr. Stanisic nor
11 Mr. Simatovic responsible for committing these crimes pursuant to JCE
12 liability as it found that it was not established beyond a reasonable
13 doubt that they possessed the requisite mens rea for JCE liability.
14 The Trial Chamber also found that it was not proven beyond a
15 reasonable doubt that Mr. Stanisic or Mr. Simatovic planned and/or
16 ordered these crimes. Further, the Trial Chamber, Judge Picard
17 dissenting, found that the actus reus for aiding and abetting liability
18 was not established beyond a reasonable doubt.
19 And, thus, neither Mr. Stanisic nor Mr. Simatovic was responsible
20 for aiding and abetting these crimes.
21 Consequently, the Trial Chamber, Judge Picard dissenting,
22 concluded that Mr. Stanisic and Mr. Simatovic were not guilty on all
23 counts in the indictment.
24 The Prosecution has filed an appeal against the Trial Judgement
25 on three grounds. The Appeals Chamber heard the oral submissions of the
1 parties on 6 July 2015.
2 I will first address the Prosecution's first ground of appeal.
3 Under this ground of appeal, the Prosecution submits that the Trial
4 Chamber erred in law and, in fact, in finding that the mens rea of
5 Mr. Stanisic and Mr. Simatovic for JCE liability was not established.
6 Under this ground of appeal, the Prosecution presents three subgrounds.
7 Under subgrounds of appeal 1(A), the Prosecution argues that the
8 Trial Chamber erred in law in failing to adjudicate and/or provide
9 reasoned opinion on essential elements of JCE liability, in particular,
10 the existence of a common criminal purpose and Stanisic's and Simatovic's
11 contributions to it.
12 The Appeals Chamber observes that, before arriving at its
13 conclusion on the mens rea of Mr. Stanisic and Mr. Simatovic, the Trial
14 Chamber did not first adjudicate whether the elements of the actus reus
15 of JCE liability were fulfilled; namely, the existence of a common
16 criminal purpose, a plurality of persons, and Mr. Stanisic and
17 Mr. Simatovic's contribution to the common criminal purpose of the JCE.
18 The Appeals Chamber, Judge Afande dissenting, is of the view that
19 in the circumstances of the present case and for the reasons expressed in
20 its Judgement, the Trial Chamber could only adjudicate and provide a
21 reasoned opinion on Mr. Stanisic's and Mr. Simatovic's mens rea under JCE
22 liability after having established the existence and scope of a common
23 criminal purpose shared by the plurality of persons and after having
24 assessed whether Mr. Stanisic's and Mr. Simatovic's acts contributed to
25 this common criminal purpose. In so doing, the Trial Chamber erred in
1 law by failing to adjudicate and provide a reasoned opinion on essential
2 elements of JCE liability. The Appeals Chamber, Judge Afande dissenting,
3 therefore grants the Prosecution's subground of appeal 1(A).
4 In light of its conclusion on the Prosecution's subground of
5 appeal 1(A), the Appeals Chamber, Judge Afande dissenting, need not
6 consider the Prosecution's arguments under the remaining subgrounds of
7 its first ground of appeal and dismisses them as moot.
8 I now turn to the Prosecution's second ground of appeal.
9 Under this ground of appeal, the Prosecution submits that the
10 Trial Chamber erred in law and in fact in finding that the actus reus of
11 aiding and abetting liability was not met with respect to Mr. Stanisic's
12 and Simatovic's conduct in relation to the crimes committed in the
13 municipalities of Bosanski Samac and Doboj in Bosnia-Herzegovina and in
14 the SAO Krajina and erroneously acquitted them of aiding and abetting
15 these crimes.
16 The Prosecution has filed and presented two subgrounds. Under
17 subground of appeal 2(A), the Prosecution argues that the Trial Chamber
18 erred in law in requiring that the acts of the aider and abettor be
19 specifically directed to assist the commission of a crime and that, had
20 the Trial Chamber not so erred, it would have concluded that Mr. Stanisic
21 and Mr. Simatovic aided and abetted the crimes committed in the said
23 The Appeals Chamber recalls that in the Sainovic et al. Appeal
24 Judgement, which was issued subsequent to the Perisic Appeal Judgement,
25 it clarified that specific direction is not an element of aiding and
1 abetting liability. In arriving at this conclusion, it carefully
2 reviewed the jurisprudence of the Tribunal and of the International
3 Criminal Tribunal for Rwanda, ICTR, in this regard and re-examined the
4 elements of aiding and abetting liability under customary international
6 The Appeals Chamber then observed that, neither in the
7 jurisprudence of the Tribunal and the ICTR, nor under customary
8 international law, had specific direction considered to be an elements of
9 aiding and abetting liability. As a result, the Appeals Chamber rejected
10 the approach adopted in the Perisic Appeal Judgement, which required
11 specific direction as an element of the actus reus of aiding and
12 abetting, and held that this approach was "in direct and material
13 conflict with the prevailing jurisprudence on the actus reus of aiding
14 and abetting liability and with customary international law."
15 The Appeals Chamber also reaffirmed that "under customary
16 international law, the actus reus of aiding and abetting consists of
17 practical assistance, encouragement, or moral support which has a
18 substantial effect on the perpetration of the crime," and that "the
19 required mens rea is the knowledge that these acts assist the commission
20 of the offence."
21 Subsequently, in the Popovic Appeal Judgement, the Appeals
22 Chamber reaffirmed that "specific direction is not an element of aiding
23 and abetting liability under customary international law."
24 Accordingly, the Appeals Chamber, Judge Agius and Judge Afande
25 dissenting, finds that the Trial Chamber erred in law in requiring that
1 the acts of the aider and abettor be specifically directed to assist the
2 commission of a crime. The Appeals Chamber, Judge Agius and Judge Afande
3 dissenting, therefore grants the Prosecution's subground of appeal 2(A).
4 In light of its conclusion on the Prosecution's subground of
5 appeal 2(A), the Appeals Chamber, Judge Agius and Judge Afande
6 dissenting, need not consider the Prosecution's argument under the
7 remaining subground of its second ground of appeal and dismisses them as
9 I now turn to the implications of the Appeals Chamber's
10 conclusions with regard to the Prosecution's subgrounds of appeal 1(A)
11 and 2(A).
12 As a result of the error on JCE liability, under its subground of
13 appeal 1(A), the Prosecution requests that the Appeals Chamber overturn
14 Mr. Stanisic's and Mr. Simatovic's acquittals, apply the correct legal
15 standard to the evidence, and convict them pursuant to Article 7(1) of
16 the statute based on their participation in the alleged JCE under all
17 counts in the indictment.
18 As a result of the error on aiding and abetting liability under
19 its subground of appeal 2(A), the Prosecution requests that the Appeals
20 Chamber overturn Mr. Stanisic's and Mr. Simatovic's acquittals, apply the
21 correct legal standard to the evidence, and convict them pursuant to
22 Article 7(1) of the Statute for aiding and abetting crimes under all
23 counts in the indictment.
24 Alternatively, with respect to both errors, the Prosecution
25 requests that the Appeals Chamber "remand the case to a Bench of the
1 Tribunal to apply the correct legal standards to the trial record and to
2 determine the liability of Mr. Stanisic and Mr. Simatovic as alleged in
3 the indictment."
4 At the appeal hearing, the Prosecution underlines that this would
5 not be a retrial but "a process of remitting for readjudication based on
6 the evidence already adduced at trial."
7 Simatovic also submits that, in the event that the Appeals
8 Chamber finds the Prosecution's appeal to be grounded, the Appeals
9 Chamber should return the case to "a special Bench of the Tribunal for
10 reconsideration with the application of the appropriate legal standard."
11 The Appeals Chamber recalls that, in accordance with the
12 well-established standard of appellate review, where it find an error of
13 law in the Trial Judgement arising from the application of a wrong legal
14 standard, the Appeals Chamber will articulate the correct legal standard
15 and review the relevant factual findings of the Trial Chamber
17 In light of the nature and scale of the errors of law identified
18 by the Appeals Chamber under the Prosecution's subgrounds of appeal 1(A)
19 and 2(A), Judge Agius dissenting with respect to the error on aiding and
20 abetting liability, and Judge Afande dissenting with respect to the error
21 on JCE liability and the error on aiding and abetting liability, if the
22 Appeals Chamber were to conduct its own review of the relevant factual
23 findings of the Trial Chamber, applying the correct legal standards, it
24 would first have to turn to the error on JCE liability and make findings
25 on the existence and scope of a common criminal purpose shared by the
1 plurality of persons and then proceed to assess Stanisic's and
2 Simatovic's contribution and intent for JCE liability. Depending on the
3 result of such an analysis, the Appeals Chamber might then have to turn
4 to the error on aiding and abetting liability.
5 However, the Appeals Chamber, Judge Afande dissenting, is of the
6 view that it would be inappropriate to conduct this analysis as it would
7 have to analyse the entire trial record without the benefit of having
8 directly heard the witnesses in order to determine whether it is itself
9 satisfied with respect to the requirements of JCE liability and,
10 depending on the result of such an analysis, with respect to the
11 requirements of aiding and abetting liability.
12 Indeed, the evidence on which the Prosecution relies to establish
13 the common criminal purpose and the mens rea for JCE liability is of a
14 circumstantial nature and it would not be sufficient for the Appeals
15 Chamber to focus on limited pieces of evidence or the existing findings
16 in the Trial Judgement which do not thoroughly address the evidence
17 relevant to the common criminal purpose or the plurality of persons.
18 In this regard, the Appeals Chamber also notes the scale and
19 complexity of the case with a trial record containing 4.843 exhibits and
20 the testimony and/or written statements of 133 witnesses, the contents of
21 which span wide swaths of Croatia and Bosnia and Herzegovina over a
22 four-and-a-half-year time-period from April 1991 to December 1995, and
23 pertain to multiple statutory crimes, numerous armed groups, and various
24 high-ranking alleged JCE members. Assessing this trial record in its
25 entirety without having directly heard the witnesses would not allow the
1 Appeals Chamber to fairly and accurately determine Stanisic's and
2 Simatovic's criminal responsibility.
3 In light of the above, in determining the subsequent course of
4 action, the Appeals Chamber may exercise a certain discretion. In so
5 doing, the Appeals Chamber notes that, of the three Judges of the
6 original Trial Chamber who directly heard the witnesses at trial, two
7 Judges no longer hold office at the Tribunal. Therefore, it is
8 impractical to remit the case to the original Trial Chamber composed of
9 the same three Judges who would have been best placed to make the
10 necessary finding on the basis of the original trial record.
11 Should the case be remitted to a newly composed Trial Chamber to
12 do this exercise solely on the basis of the original trial record, it
13 would encounter similar difficulties to those which would be encountered
14 by the Appeals Chamber as a result of not having directly heard the
16 Accordingly, and recalling that an appeal is not a trial de novo,
17 the Appeals Chamber, Judge Afande dissenting, finds that this case gives
18 rise to appropriate circumstances for a retrial pursuant to Rule 117(C)
19 of the Rules. The Appeals Chamber, Judge Afande dissenting, hereby
20 orders Mr. Stanisic and Mr. Simatovic be retried on all counts in the
22 Finally, if the new Trial Chamber were to examine the
23 responsibility of Mr. Stanisic and Mr. Simatovic for aiding and abetting
24 the crimes, the Appeals Chamber, Judge Agius and Judge Afande dissenting,
25 instructs it to apply the correct law on aiding and abetting liability as
1 set out above which does not require that the acts of the aider and
2 abettor be specifically directed to assist the commission of a crime.
3 As a consequence of having granted the Prosecution's subgrounds
4 of appeal 1(A) and 2(A) and having ordered a retrial, the Appeals
5 Chamber, Judge Agius and Judge Afande dissenting, need not consider the
6 Prosecution's third ground of appeal and dismisses it as moot.
7 I will now read out in full the disposition of the Judgement of
8 the Appeals Chamber.
9 Mr. Stanisic and Mr. Simatovic, could you please stand?
10 Here is the disposition.
11 For the foregoing reasons, the Appeals Chamber,
12 Pursuant to Article 25 of the Statute and Rules 117 and 118 of
13 the Rules;
14 Noting the respective written submissions of the parties and the
15 arguments they presented at the appeals hearing on 6 July 2015;
16 Sitting in open session;
17 Grants, Judge Afande dissenting, the Prosecution's subground of
18 appeal 1(A); and quashes, Judge Afande dissenting, the Trial Chamber's
19 decision to acquit Stanisic and Simatovic for committing, through their
20 participation in a JCE, murder as a violation of the laws or customs of
21 war, and murder, deportation, other inhumane acts (forcible transfer) and
22 persecution as crimes against humanity under all counts of the
24 Grants, Judge Agius and Judge Afande dissenting, the
25 Prosecution's subground of appeal 2(A); and quashes, Judge Agius and
1 Judge Afande dissenting, the Trial Chamber's decision to acquit Stanisic
2 and Simatovic for aiding and abetting murder as a violation of the laws
3 or customs of war, and murder, deportation, other inhumane acts (forcible
4 transfer) and persecution, as crimes against humanity under all counts of
5 the indictment;
6 Orders, Judge Afande dissenting, pursuant to Article 117(C) of
7 the Rules, that Stanisic and Simatovic be retried on all counts of the
9 Orders, Judge Agius and Judge Afande dissenting, the
10 Trial Chamber composed for retrial, should it consider aiding and
11 abetting liability, to apply the correct law on aiding and abetting
12 liability as affirmed herein, which does not require the acts of the
13 aider and abettor be specifically directed to assist the commission of a
15 Dismisses the Prosecution's appeal in all other respects; and
16 Pursuant to Rules 64, 107, and 118 of the Rules,
17 Orders, Judge Afande dissenting, the detention on remand of
18 Stanisic and Simatovic and enjoins, Judge Afande dissenting, the
19 Commanding Officer of the United Nations Detention Unit in The Hague to
20 detain them until further order;
21 Judge Carmel Agius appends a separate and partly dissenting
23 Judge Koffi Kumelio A. Afande appends a dissenting opinion.
24 Mr. Stanisic and Mr. Simatovic, you may now be seated.
25 Copies of the Judgement will be delivered to the parties after
1 this hearing.
2 Before adjourning, I would like to thank all those who assisted
3 the Appeals Chamber in the conduct of this case.
4 The Appeals Chamber will now rise.
5 --- Whereupon the hearing adjourned at 3.31 p.m.