1 Friday, 4th July 1997

2 (11.30 am)

3 JUDGE McDONALD: We are going to hear first from

4 Dr. Nedopil, as I understand, if that's acceptable with

5 you, Mr. Vujin?

6 MR. VUJIN (in interpretation): Yes, it is.

7 JUDGE McDONALD: One matter relates to a discussion we had

8 about his appearance and that had to do with his fees.

9 Mr. Vujin, you had indicated that his fee was about

10 DM 1,000 an hour. I have been advised by the

11 Registry that, in fact, it's DM 100 per

12 hour.

13 MR. VUJIN (in interpretation): I'm sorry, your Honour.

14 There was a misunderstanding between my Belgrade-based

15 office, which got in touch with Professor Nedopil, and

16 the Professor probably spoke to them in English, which

17 is not his mother tongue. That was probably the reason

18 for this mistake. I imagine that now Professor Nedopil

19 has accepted the Rules of the Tribunal, so I imagine

20 it's all right.

21 JUDGE McDONALD: No. I don't think an adjustment was made

22 because of the Rules of the Tribunal. I think there was

23 just a misunderstanding of what he would charge for his

24 services for typically this type of service. Experts

25 should be paid and it is quite appropriate. I just

1 thought that it should be made clear for the record because

2 it was important. It is not anything that we need to

3 discuss when Dr. Nedopil comes, because experts get paid

4 and they should get paid, but I just thought it was

5 appropriate to discuss. One day I may want to be an

6 expert witness and I would not want someone saying that

7 I charged ten times the fee that, in fact, I charged.

8 I don't think it's going to happen, but you never know.

9 If there's nothing else, then let's bring --

10 MR. VUJIN (in interpretation): If necessary, I apologise to

11 the court and Mr. Nedopil, but truly I had received a fax

12 that that was the reason for this problem.

13 JUDGE McDONALD: I can understand that. Fine. Let's bring

14 in Dr. Nedopil.

15 (Witness enters court)

16 (Interpreter enters court)

17 JUDGE McDONALD: Dr. Nedopil, would you please stand and

18 take the oath that has been handed to you.

19 Dr. Nedopil (sworn)

20 JUDGE McDONALD: Thank you. You may be seated. Mr. Vujin,

21 you may proceed

22 Examined by MR. Vujin

23 MR. VUJIN (in interpretation): Thank you, your Honour.

24 Mr. Nedopil, would you please introduce yourself to this

25 court with your full name and surname?

1 A. (in interpretation): My name is Dr. Norbert Nedopil.

2 I am from the Neurology Clinic. I work in Munich at the

3 Psychiatric Clinic of the University of Munich in

4 forensic psychiatry.

5 JUDGE McDONALD: Dr. Nedopil does not have earphones. There

6 is an interpreter sitting next to him who, as

7 I understand it, is interpreting simultaneously what is

8 being said. I gather that Dr. Nedopil does not need any

9 earphones; is that correct? Thank you. Mr. Vujin, you

10 may proceed.

11 MR. VUJIN (in interpretation): Professor Nedopil, how much

12 experience have you had in forensic psychiatry? How

13 long have you been working in this field?

14 A. I have been working since 1982 as a forensic

15 psychiatrist. Previously, from 1975 I worked as a

16 clinical psychiatrist. Now each year I carry out about

17 40-60 evaluations. I'm in charge of the Department for

18 Forensic Psychiatry at the University of Munich.

19 Q. Thank you, Professor. Do you remember Mr. Dusko Tadic?

20 A. Yes, I do remember him.

21 Q. Did you observe him?

22 A. I September 1994 I observed him in the course of three

23 days.

24 Q. At whose request was this observation carried out?

25 A. This was at the request of the Federal Prosecutor of the

1 Federal Court in Karlsruhe.

2 Q. After this examination did you submit your findings in

3 writing, as well as your opinion?

4 A. Yes, I did. I did write a report.

5 Q. Do you have a copy of that report with you?

6 A. Yes, I do have a copy of that report with me.

7 Q. I would request you kindly to read page 3 to us, which

8 begins with the following words ...

9 JUDGE McDONALD: Do you want the doctor to read the entire

10 page?

11 MR. VUJIN (in interpretation): Yes. I want, because I have

12 some questions about that.

13 JUDGE McDONALD: Okay. You may read just that one page.

14 I hope the 30 page report --

15 MR. VUJIN (in interpretation): No, only one.

16 JUDGE McDONALD: Okay.

17 A. Is it really page 3 that you want me to read? Page 3,

18 these are the charges.

19 Q. And 4. Yes, that is precisely what I am interested in,

20 the charges, so that I could put questions to you.

21 A. Well, page 3 begins --

22 THE INTERPRETER: This is in the German version, the

23 interpreter might point out.

24 A. "This is a suspicion that the Serbs". In the English

25 version this would be about halfway through page 2. (No

1 translation). This is the bottom part of the first

2 paragraph, which starts with:

3 "As a member of the Serbian party and fanatical

4 party of the Greater Serbian cause, the Serbs wanted to

5 contribute to this ethnic cleansing".

6 THE INTERPRETER: That is page 2, the first paragraph. The

7 speaker was just continuing saying -- the speaker was

8 continuing with the following, going on to page 2 of

9 that version.

10 JUDGE McDONALD: Mr. Keegan?

11 MR. KEEGAN: Not meaning to interrupt, but I note on the

12 English version, as we read this page, we are going to run

13 into witness names, some of which were orders of the

14 court earlier. As a measure we might have the doctor

15 skip any names mentioned.

16 JUDGE McDONALD: I don't see any names on the paragraph --

17 MR. KEEGAN: If you look towards the last paragraph of

18 page 2 of the English translation, and the doctor is now

19 about halfway down page 2.

20 JUDGE McDONALD: I don't recall that any of those --

21 THE INTERPRETER: Microphone, please, your Honour.

22 JUDGE McDONALD: I don't recall that that particular

23 witness was given protective measures. Both he and his

24 wife testified.

25 MR. KEEGAN: No, your Honour. There is a name listed there,

1 which wasn't subject.

2 JUDGE McDONALD: Okay. Dr. Nedopil and Mr. Vujin, if that's

3 acceptable to you, if it's not necessary for the names

4 to be read out, then the doctor should not read out any

5 of the names except, of course, for Mr. Tadic's.

6 MR. VUJIN (in interpretation): We would agree not to have

7 the name of the protected witness mentioned.

8 JUDGE McDONALD: Mr. Keegan, would you write the name down

9 that you consider was protected and pass it to the

10 usher? Judge Stephen would really prefer for it not to

11 be read. I don't know how much you have read. If you

12 want to put it into context, if for some reason you want

13 this portion to be a part of the transcript, you tell me

14 why, Mr. Vujin.

15 MR. VUJIN (in interpretation): We are only interested in

16 this because of our further questions addressed to the

17 Professor to see what his point of departure was. We

18 want to see what his relationship was with Mr. Tadic.

19 JUDGE McDONALD: Fine. You may read it out, but Mr. Keegan

20 is correct. There is -- the witness mentioned the third

21 line from the bottom of the English version that is --

22 that was protected, and this report, was this placed

23 under seal? This has been placed under seal.

24 MR. KEEGAN: Yes, your Honour but there are copies in

25 Germany and my fear is by high-lighting a particular name

1 you indicate who a witness is. I thought to avoid all

2 names, then it avoids that.

3 JUDGE McDONALD: We heard two witnesses who were not

4 protected but that's a common name. Doctor, you will

5 read without mentioning any of the names in the report

6 and it is very important that you do not. Thank you.

7 A. "Mr. Tadic is specifically accused of the following: in

8 the Omarska Concentration Camp the Serbs held

9 approximately 3,500 Bosnian Muslim prisoners in the

10 Summer of 1992 following a wave of ethnic cleansing.

11 The inmates were kept by the Serbs in various

12 warehouses, administration buildings, and garages in the

13 former mining complex, depending on the estimated danger

14 of their post. Interrogations, accompanied by grievous

15 bodily maltreatment of the prisoners, were part of

16 everyday life in the camp, as were systematic

17 executions. In the so-called "red house" prisoners were

18 tortured and then disappeared. According to statements

19 from surviving camp inmates, they were killed like

20 animals; for example, soaked in petrol and burnt alive.

21 Prisoners had to load the corpses on to trucks for

22 subsequent transportation. In the so-called "white house"

23 torture preceded before the interrogations. Prisoners

24 also died during this maltreatment".

25 This is at the top of page 4 in the German

1 version, in the middle of page 2 of the English

2 version.

3 MR. VUJIN: The next page, please?

4 A. "As a Serbian militia man, the test subject had access

5 to the concentration camp in Omarska, where he, as he

6 had done many times previously, demonstrated his power

7 and tyranny over the Muslim prisoners. On the 3rd June

8 1992 he, accompanied by three others, allegedly entered

9 a room in which approximately 180 prisoners were packed

10 together. The test subject and his three companions

11 beat the inmates for two hours with rifle butts. One

12 man was so badly injured by the thump that he received

13 on the back of his head that he required medical

14 attention. The test subject was allegedly the leader of

15 the group. They did not leave the prisoners alone until

16 they were tired of beating.

17 On June 15th or 18th 1992 the test subject

18 allegedly entered a garage, which was being used as a

19 detention room, and demanded that the prisoners come

20 out. After these prisoners had complied with this

21 order, the test subject beat them with his rifle butt.

22 When they were lying on the ground completely weakened

23 he threw them one at a time into an inspection pit.

24 Then he fetched the prisoner and ordered him to bite off

25 the testicles of the three men. Some inmates in the

1 detention room who observed the process heard the men

2 screaming for two hours until they died. The acts were

3 confirmed by five former prisoners, who were questioned

4 by the Federal Criminal Police in relation to the

5 conditions and events in the camp".

6 Q. Thank you, Professor Nedopil. My next question is the

7 following: before that, in your practice, did you have an

8 opportunity to observe a test subject with such

9 suspicions?

10 A. Well, with regard to charges of this kind, no, I had not

11 previously had perceived any evaluations in such a

12 connection, but when it comes to comparably horrible

13 crimes, I have indeed carried out evaluations on them.

14 Usually, the victims of these horrible crimes were women

15 and you can't proceed in a similar way.

16 Q. Thank you, Professor. My question is the following. My

17 next question is, are these things that the suspect,

18 Dusko Tadic, then was charged with -- could this have

19 influenced your objective opinion?

20 A. Well, I doubt that they would influence my objective

21 opinion, because over the years I have become accustomed

22 to dealing with a very great variety of people with

23 various difficulties, and if you look at the end of my

24 evaluation, you will see that when it comes to the

25 judgement of the acts and the personality there, that I

1 have taken it that what Mr. Tadic told me was true.

2 That's one option I took into account. Then the other

3 was that what the Federal Criminal Police office had

4 said was true, that is to say that the charges were

5 true.

6 Q. Can we say that your findings and your opinion are

7 objectively presented and in keeping with your

8 professional knowledge and findings?

9 A. Yes, that's right.

10 Q. Could you explain to me, Professor, what are the methods

11 that you used when examining Mr. Dusko Tadic?

12 A. Now, I talked with Mr. Tadic for several hours.

13 I carried out various tests on him. I thoroughly

14 considered his life history, his background, and

15 I carried out physical and neurological tests, and with

16 regard to the psychopathological considerations I asked

17 him about all of those. Then my colleague, Dr. Werbauer,

18 the forensic psychologist, carried out various

19 psychological tests on Mr. Tadic, and these related in

20 particular to intelligence, to any cerebral

21 insufficiencies, personality, the profound psychological

22 background, and then he considered the matter of

23 simulation and dissimulation.

24 Q. Are all these tests acknowledged throughout the world?

25 A. The tests, as far as I know, are acknowledged

1 world-wide. Now with regard to any difference of

2 opinion, it's not on any national basis, but it's rather

3 on the basis of schools of psychology.

4 Q. Thank you, Professor. These tests that guarantee at

5 this level of the development of the science that you

6 are involved in the possibility of truly viewing the

7 personality of the test subject?

8 A. None of the test procedures is 100 per cent foolproof.

9 Now individual tests, in fact, may each have a broader

10 spectrum of error, but considering different test

11 results together, together with a psychiatric study,

12 does provide you with a fairly accurate description of

13 an individual and that won't reveal all the facets of an

14 individual's personality, but that is not the purpose of

15 the psychiatric evaluation either. There is always a

16 specific issue that has to be addressed. So it's not a

17 matter of considering each and every detail of the life

18 and personality of the individual in question.

19 Q. Nevertheless, having carried out all these tests, you

20 managed to come to certain conclusions, so could you

21 explain to us in the briefest possible terms what is the

22 personality of Mr. Dusko Tadic?

23 A. Well, I'll try to do so, as briefly as possible. Now, as

24 far as the tests go, there's two things that emerged.

25 Mr. Tadic was making an effort, in the course of the

1 examination, as somebody who didn't attract attention.

2 Looking at his life history and psychiatric evaluation

3 you can see that this attempt to pass unnoticed can, in

4 fact, be substantiated. We didn't find that there were

5 factors that drew particular attention to that

6 Mr. Tadic. Mr. Tadic is above average in intelligence and

7 basically in the course of his youth he tended to be

8 rather spoilt, and he could devote himself to his

9 leisure and pleasures, and on the whole he seemed to be

10 rather well integrated in his social environment. He is

11 someone who likes to pass as balanced but is also

12 someone who is seeking recognition, and you might even

13 say that he tends to want to acquire a certain position,

14 as it were, but this is not so pronounced that it would

15 deviate from what one would expect, and, in fact, it is

16 consistent with what you would find, shall we say, in

17 the average person.

18 Now, with regard to things deserving particular

19 attention, we looked to see whether there were any

20 sadistic tendencies that might be perceived and whether

21 there were any tendencies to aggression that might be

22 present, and on the basis of our evaluation we have to

23 say that we did not see such tendencies in the course of

24 the tests, some of which do bring out the presence of

25 aggression without the test subject being aware of that,

1 and even in these tests, as well as in the tests that

2 are, shall we say, more straightforward, we did not

3 detect any marked tendency to aggression. That said,

4 there were some tendencies towards domination that

5 emerged. In particular, as far as sadistic, sexual,

6 etc., tendencies, we did not cover any tendencies of that

7 ilk, so there were no marked characteristics that could

8 be seen as motivating or providing an impulse for the

9 charges that were alleged against Mr. Tadic at the time.

10 Now he himself acted as someone who was balanced

11 and who was always striving to steer clear of the

12 opposing groups, and as a result of that lost a clear

13 sense of self, and that's why he tended to join a group,

14 and he did that rather reluctantly, and he also appeared

15 as someone of a victim of unfortunate circumstances,

16 which were due to the fact that precisely he didn't

17 belong in any clear-cut manner to any one group or the

18 other, and after his father died in 1990, he lost the

19 support of his family, the support he'd enjoyed up to

20 that point.

21 Now, there was also a lack of self-assurance on

22 account of the changes in social terms and economic

23 terms, so that is what his case was until he moved to

24 Germany. He did try on several occasions to move

25 abroad, on one occasion to Libya and another to

1 Switzerland. He tried to gain a foothold there,

2 according to what he said, and he did not succeed, and

3 that contributed to his social lack of self-assurance,

4 as did the collapse of his small business that he had

5 established. So to that extent, to the time of the

6 evaluation, and in the previous period he was someone who

7 was hurt in their self-confidence, but who tried to

8 overcome that difficulty, and, for instance, in the

9 course of the evaluation he emphasised the political

10 role that he played. He said he had done a great job

11 and even exaggerated a little bit in terms of being a

12 middle man and helping in the build-up of his country.

13 So if there were any shortcomings that might be touched

14 on, on the one hand, there's lack of self-assurance,

15 particularly in social terms and he tried to make up for

16 this insecurity by exaggerating his political role.

17 Q. Thank you, Professor. Did you establish that there were

18 any psychopathological characteristics in Mr. Tadic?

19 A. No. Psychopathological, if you use that as meaning

20 someone is suffering from a disease or something

21 similar, if you take it as that, then I did not find any

22 psychopathological characteristics, nor did I see any

23 disturbances which would -- which might be referred to

24 as pathological, just influences, etc. I don't think

25 there were any of those present. I did not see any.

1 Q. Your Honour, I wish to thank Professor Nedopil. The

2 Defence has no further questions at this point.

3 JUDGE McDONALD: Mr. Keegan, do you have cross-examination?

4 MR. KEEGAN: Yes. Thank you, your Honour.

5 Cross-examination by MR. KEEGAN.

6 MR. KEEGAN: Good morning, Dr. Nedopil. I would take it then

7 based on your conclusions, which you said were drawn

8 from assuming certain factors, then you would say that

9 Dusko Tadic has no psychological or pathological disease

10 or defect which would provide an excuse or some

11 mitigation for the crimes for which he has been

12 convicted?

13 A. I examined him from that angle, whether there might be

14 any mitigating psychological disturbances, and I did not

15 see any.

16 Q. Now you said at the beginning that your opinions and

17 judgements are based on -- with respect to the evaluation

18 are based on two factors. One is that you accepted what

19 Dusko Tadic had told you as being true, and yet you also

20 accepted that the acts for which he was charged by the

21 German authorities were also true?

22 A. Yes.

23 Q. In the first instance how did you reconcile then his

24 absolute denial of any involvement or even presence in

25 the camps with the fact that he was charged with crimes

1 that occurred in those camps?

2 A. Now the alternative that I indicated means that if what

3 Mr. Tadic said is true, there's no need for any

4 psychiatric evaluation, because then the matter of the

5 question of being capable of feeling guilt or of

6 assuming guilt for something one hasn't done, that

7 becomes irrelevant.

8 Now if, on the other hand, the charges are true,

9 then there are no mitigating or quashing circumstances

10 in the psychological sphere. So those are the

11 alternatives that I reported to the authorities who

12 commissioned the assessment.

13 Q. Thank you, Doctor.

14 JUDGE McDONALD: Mr. Vujin, do you have additional

15 questions?

16 MR. VUJIN (in interpretation): No, thank you.

17 JUDGE McDONALD: Dr. Nedopil, you are excused. You are free

18 to leave. Thank you very much for coming.

19 A. Thank you.

20 (Witness withdrew from court)

21 (Interpreter withdrew from court)

22 JUDGE McDONALD: Mr. Vujin, are you now going to continue

23 with your submission as counsel as to the appropriate

24 sentence, or have you completed it?

25 MR. VUJIN (in interpretation): No, your Honour, because our

1 working hours were at an end, I was interrupted, and

2 I am ready to continue today, but I would first like to

3 inform the Trial Chamber that in connection with the

4 request or suggestion that we prepare written evidence

5 regarding the implementation of the law or rather the

6 practice of the courts in the former Yugoslavia and

7 connected with what I tried to explain to the Trial

8 Chamber and which I should like to continue to explain

9 in connection with Yugoslav legislation, we have

10 prepared some of that material in the English language,

11 and I will be glad to tender it, but that is a

12 translation of the existing Penal Code of Yugoslavia, at

13 least some Articles of that Code. Unfortunately we were

14 not able to translate the relevant Articles of the Penal

15 Code from 1997, which is in effect now. I have prepared

16 copies in the Serbian language. I have contacted the

17 Registry and asked them for permission to tender it in

18 Serbian with the request that it be translated as

19 expeditiously as possible, and this has been promised to

20 us, so that you will have these documents for your

21 consideration.

22 JUDGE McDONALD: Mr. Vujin, I have a question. You are

23 providing the English translation of the existing Penal

24 Code.

25 MR. VUJIN: Yes.

1 JUDGE McDONALD: You are also providing in Serbo-Croat the

2 Penal Code that was effective from -- from 1977 that is

3 in effect now? If so, what are the differences between

4 those two? I don't understand.

5 MR. VUJIN (in interpretation): I am giving you in Serbian a

6 copy of the law which was in effect up to the adoption

7 of the new constitution and the new law of 1993, or,

8 rather, I have to make myself clear: the criminal code

9 in Yugoslavia was not changed. No new code has been

10 passed. Throughout this period from the day it was

11 passed until the present it was merely amended. This

12 law exists since 1961 but it was amended in 1962, in

13 1977, and in 1993, when what is important for us, the

14 death penalty was abolished. Therefore, we are only

15 talking about amendments to that law, but the copies in

16 Serbian are of the provisions that were in force at the

17 time when the events in the municipality of Prijedor

18 were taking place.

19 JUDGE McDONALD: Thank you.

20 MR. VUJIN (in interpretation): I should like to offer

21 something I was referring to yesterday, and they are two

22 judgements of the Supreme Court of Yugoslavia regarding

23 the explanation that a crime against humanity can be

24 committed only as a single extended criminal offence.

25 I do indeed apologise that we did not manage to prepare

1 a translation of this text. I was informed that the

2 court has a translation and we were hoping that was the

3 case, but anyway I hope that we will manage to have it

4 translated, because it's not so long.

5 JUDGE McDONALD: We have been provided with a Prosecution

6 submission, certainly portions of that, and if you can

7 tell me what Article you are referring to. Is it

8 chapter 16, Criminal Offences against Humanity and

9 against International Law?

10 MR. VUJIN (in interpretation): No. It's chapter -- no.

11 What I have submitted to you in Serbian now is Chapter

12 1, the general provisions on criminal offences, the

13 implementation of criminal law and the general

14 institutes of criminal law.

15 JUDGE McDONALD: Does that begin:

16 "Provisions of the general part of the Penal Code

17 of Yugoslavia ...". No. That's the title of the

18 annex. Does it begin with Article 19? There should be

19 --

20 MR. VUJIN (in interpretation): No, it begins with

21 Article 1, basic provisions.

22 JUDGE McDONALD: Okay. I see. I think we do have a

23 translation. If we don't have a translation of all of

24 the Articles, I think that we have a translation at

25 least of some of them but we, of course, can have

1 translations made. So let us see what the number --

2 Defence Exhibit 122 will be the Penal Code that was in

3 effect from 1977 you have indicated until now. Excuse

4 me. Then Defence Exhibit 121 is the English translation

5 of the 1993 amendments to the Penal Code and then

6 Defence 123 are two judgements in the Serbian language

7 that you have referred to. Is there any objection to

8 these exhibits?

9 MR. KEEGAN: No, your Honour.

10 JUDGE McDONALD: They will be admitted.

11 MR. VUJIN (in interpretation): Your Honour, I should also

12 like to submit to the court four additional exhibits

13 tendered as evidence. One is Mr. Dusko Tadic's letter

14 addressed to the Consular Offices of Yugoslavia in

15 Munich on 6th March 1994 and we have had only a portion

16 of it translated, which we feel may be of interest to

17 you, and which indicates the readiness of Mr. Tadic to

18 appear before this court. Actually in this letter

19 Mr. Tadic insisted that the Yugoslav authorities

20 intervene so that he may be brought before this court.

21 Furthermore, three decisions in the so-called Ministers

22 case from Nuremberg, January 1948; another one from

23 February 1948, also from Nuremberg, and Vilezekta from

24 Amsterdam, also from 1948, as judgements which may be of

25 interest when thinking about the penalty that should be

1 determined for Mr. Tadic. All these are in English.

2 JUDGE STEPHEN: Mr. Vujin, as far as I'm concerned, I think

3 I have already certainly in the case -- in the

4 Ministers' case read the judgement. What I would be

5 assisted by on your behalf would be for you to tell me

6 what portions of those three judgements you suggest are

7 material and that we should look at. Can you do that?

8 My recollection is that they are very lengthy, and

9 I suspect that if we have no guidance from you, we may

10 just look through them but be no better informed.

11 MR. VUJIN (in interpretation): Honourable Judge, I have

12 just prepared very brief excerpts which I feel you could

13 focus on, but of course I am persuaded you wouldn't be a

14 Judge in this Tribunal if you were not familiar with all

15 the judgements passed in such cases and I had no

16 intention of implying any such thing.

17 JUDGE STEPHEN: And you are going to tender the excerpts

18 that you have in mind which you say are material.

19 MR. VUJIN (in interpretation): Yes. Yes, the shorter --

20 the abridged version.

21 JUDGE STEPHEN: Thank you.

22 JUDGE McDONALD: In addition to discussing the nullem

23 crimen issue that I referred to yesterday, I would

24 appreciate if you would also address what effect the

25 judgements regarding sentences in Nuremberg are relevant

1 to this Trial Chamber's consideration. The Statute says

2 recourse to Yugoslav sentencing practices, but just

3 recourse. It doesn't say we are to limit ourselves, but

4 I would like you to speak to the effect of the Nuremberg

5 judgements particularly.

6 MR. VUJIN (in interpretation): Your Honour, I am ready to

7 comment on this, but I did say yesterday that I read and

8 understand the Rules of this Tribunal in the sense that

9 you are bound by the provisions of the Statute, and that

10 in my opinion the provisions of Article 101 of the

11 Statute are to some extent in contradiction with the

12 provisions of Article 24 of the Statute and I will

13 explain why.

14 Article 24 of the Statute envisages as a

15 punishment a prison term without elaborating on the

16 duration of that period of imprisonment. Then the

17 Article goes on to say that in determining the

18 conditions for imposing a sentence, the general practice

19 regarding prison sentences in the courts of the former

20 Yugoslavia would be taken into account.

21 In my view, the mentioned provision can only be

22 interpreted as implying that the length of imprisonment

23 must be within the limits of the practice in

24 Yugoslavia. I said yesterday, and I wish to underline

25 today, practice cannot go outside the law, which would

1 mean that to my understanding, and according to my

2 interpretation of the Statute, the penalty that would be

3 imposed according to the Rules of this Tribunal could

4 not exceed a 15 year term of imprisonment as the maximum

5 possible penalty. I'm saying this because at the time

6 the Statute was passed we in Yugoslavia did not have

7 life imprisonment as a possible penalty. I sincerely

8 hope that no such penalty will be introduced into

9 Yugoslavia, and it is quite evident that it will not.

10 If as one of the conditions the Statute mentions

11 practice in Yugoslavia, then that should have been

12 accepted, or the Statute could have said that the

13 practice of the courts in the former Yugoslavia will be

14 borne in mind as well as similar cases as they were

15 determined by the courts of other countries. As there

16 is no such provision I see no connection with the

17 Nuremberg processes nor the Tokyo trials nor any other

18 trials, even the trials that I have now referred to and

19 tender as evidence, that is the judgements that I have

20 given, that could be of influence when considering the

21 penalty for Dusko Tadic. Those judgements, in my

22 opinion, could be relevant merely for reflecting

23 initially on what are crimes, how they should be tried,

24 what are the possibilities and so on, and I must point

25 out in this connection that everything seems to indicate

1 that unfortunately on this planet of ours there are many

2 wars that are raging, and that only the events that

3 happened in the former Yugoslavia are being tried.

4 In this connection it is an essential need for a

5 permanent international court to be established so that

6 all those who do something that is unacceptable in such

7 conflicts should be brought to justice. That is why

8 regarding our position on the point of departure that

9 you should adopt in our opinion, when considering the

10 determination of the penalty with respect to Dusko

11 Tadic, cannot under any circumstances be life

12 imprisonment, as suggested by the Prosecution. In our

13 view, in your deliberations, you must start from a

14 maximum penalty of 15 years and after that taking into

15 account the gravity of the offences of which you found

16 Dusko Tadic guilty, the acts which you established

17 beyond reasonable doubt as being committed by him, and

18 linking this to the circumstances under which he did

19 that, and I'm thinking of the overall madness, if I may

20 describe it in that way, that swept our country, and

21 linking this with the circumstances of the personality

22 of Mr. Dusko Tadic, taking into consideration everything

23 that was said in this courtroom, both by witnesses,

24 Muslims and others, who spoke about his character,

25 including today's witness, Professor Nedopil, through a

1 system of elimination of all other facts which are not

2 material for the determination of the penalty, that you

3 reach a determination on a just penalty establishing the

4 degree of criminal responsibility of Dusko Tadic as a

5 man whose guilt you have established, whom you have to

6 punish, but who was certainly at the tail end of events,

7 as we say.

8 So we are coming back to this question of big and

9 small fish not in order to establish whether he was a

10 person of importance, but I must assure you that apart

11 from his relatives and friends, no-one had heard of

12 Dusko Tadic before these events. I assure you that

13 Mr. Dusko Tadic is far, far, far away from Karadzic

14 regarding whom, when Mr. Niemann mentioned in his

15 statement, I think he acted incorrectly. He has not

16 been found guilty and he must be considered innocent

17 until proven guilty, so that he could without reprimand

18 in the way that I was reprimanded at one point, and

19 I apologised, regarding my objections to Mr. Niemann's

20 statements. I think it was incorrect to call Mr. Tadic

21 Karadzic's henchman. I think the expression is

22 inappropriate and that there is no reason to link the

23 two together and this reference can be found in the

24 transcript on page 209, line 15. Therefore Mr. Tadic was

25 not a henchman, and particularly not did he work on

1 anybody's behalf.

2 Mr. Tadic was an ordinary man, an ordinary citizen

3 who carried out some of the duties he accepted either

4 under the work obligation that he managed to procure for

5 himself instead of being mobilised to the armed forces,

6 that is his duties as a reserve traffic policeman, or as

7 an activist of the Red Cross and the local community,

8 and for that reason and bearing in mind all his personal

9 character traits that we have discussed here with the

10 witnesses and that we have referred to, and indicating

11 in particular his talent for art, and artists are surely

12 not prone to the commission of any grave offences, I

13 find that the circumstances which accompany the accused,

14 Tadic, need necessarily be viewed in this light because

15 Mr. Tadic was not praised or rewarded, because in those

16 days only those were praised or rewarded who were

17 successful on the front.

18 I refer you to evidence, that is an excerpt from a

19 daily paper, Kozarski Vjesnik, carrying a list of

20 rewarded soldiers and only such people were rewarded for

21 things that were happening there, no-one else, and

22 therefore not Dusko Tadic either. Among those who were

23 decorated were members of the military police, like Milo

24 Dragavic, who were actually those who arrested Mr. Dusko

25 Tadic.

1 Therefore, viewing his personality in that sense,

2 you will be in a position to weigh all that I have said

3 and taking into consideration some further comments that

4 I intend to make regarding Yugoslav law, I am certain

5 that you will make a fair decision, which will not carry

6 this or that message but only one message, that the

7 international Tribunal -- that those appearing before

8 the International Tribunal can expect only justice from

9 that Tribunal.

10 If I may now, I should like to try and explain

11 some of my positions based on our criminal legislation,

12 which we started to do yesterday.

13 JUDGE McDONALD: We can read the legislation. As

14 I indicated, when I said counsel's comments about it are

15 perhaps helpful, but it's their view of the law and

16 that's why we wanted the legislation itself. We can

17 read that. I don't think it's necessary for you to read

18 it and take us through that and then when you speak of

19 practices and what is done, we need some documentation

20 with respect to that. So if you have provided us with

21 the statutes and you have provided us with decisions, we

22 will read them. Believe me, we will. I think it's very

23 evident what your position is. 15 years would be the

24 maximum. We have no death penalty. We cannot apply the

25 life sentence because it did not exist in the former

1 Yugoslavia at the time and nullem crimen would be

2 violated. I think you've made it very, very clear.

3 I just have one question, and maybe I shouldn't ask the

4 question. I thought I understood Professor Aleksic's

5 testimony to be that the death penalty in the Federal

6 Republic of Yugoslavia was abolished two years ago by

7 the constitution. This is 1997, so two years ago would

8 be 1995, but at least as far as the code is concerned,

9 Serbia has the death penalty, Montenegro does not have

10 the death penalty. If the death penalty was only

11 abolished two years ago, and that would be in 1995, then

12 in 1992, when these events were taking place, the death

13 penalty was in existence and there was the option to

14 sentence to 20 years if it was determined by the judge

15 that the death penalty was inappropriate, but that the

16 crime was so severe that it would be imposed instead of

17 the death penalty, 20 years. Am I correct about his

18 testimony?

19 MR. VUJIN: Your Honour, you understood well on the basis of

20 what was translated. Today, too, there were errors in

21 the translation and a part of the statement of Professor

22 Aleksic was misinterpreted. The part regarding the

23 existence of the death penalty and 20 years as an

24 alternative was translated well. However, when

25 Professor Aleksic was speaking about the existence of

1 the death penalty in Serbia and Montenegro a confusion

2 occurred in the translation. I read through the

3 transcript later. Namely Professor Aleksic did not say

4 that there was no death penalty in Montenegro, but he

5 said -- maybe the interpreter didn't hear well -- that

6 Serbia and Montenegro for these offences do not have the

7 death penalty because these offences are not regulated

8 by the law of Serbia or Montenegro. These acts are

9 covered by the law of Yugoslavia, these offences, that

10 is by the Federal Penal Code in chapter 16. Therefore,

11 I think that a small degree of confusion occurred, and

12 that is why I wish to explain this by saying from 1961

13 our criminal legislation has been uninterrupted. We

14 always had a Federal law in the former Yugoslavia which

15 determined the general provisions, the general

16 principles, and in the separate specific parts of the

17 Federal law there were a series of criminal offences

18 that applied to the Federation, including those against

19 humanity and international law which were covered by

20 chapter 16.

21 In addition to the Federal Law, each republic, and

22 until the amendment of the constitution also the

23 autonomous provinces within the framework of Serbia, had

24 their own laws, so that we had eight criminal codes in

25 addition to the Federal one, which were more or less in

1 accord and which covered what I would describe as

2 ordinary crimes. Until 1973 -- I'm sorry -- 1993, when

3 the last amendment was made to the Federal Law, in all

4 our laws, that is in the Federal and in the republican,

5 the death penalty was envisaged. However, in all our

6 laws, and I have the text in English from 1961 with all

7 the subsequent amendments, there is a provision which

8 I sought to draw your attention to yesterday, and that

9 is a provision that unfortunately you do not have in

10 translation, a provision of Article 4 of the Federal

11 Penal Code, which says:

12 "The perpetrator of a criminal offence will be

13 ruled according to the law that was in force at the time

14 of the commission of the offence".

15 That is paragraph 1 of Article 4. Paragraph 2 of

16 Article 4 says:

17 "If after the commission of the criminal offence

18 the law is changed once or several times, the law that

19 is more favourable for the perpetrator will be applied".

20 We will have this text translated for you, so you

21 will be able to read it. This provision, in my opinion,

22 is very important, particularly because of the

23 institution of nulla poena, because this obliges the

24 Yugoslav courts to rule according to the mildest law

25 from the moment of the commission of the act up to the

1 trial. Therefore, if at the time the act was committed

2 one law was enforced and after that another law was

3 passed which was milder for the accused, and at the time

4 of trial we have a third law, which is again more

5 severe, the law which was in the meantime the mildest

6 will be enforced. That provision on the application of

7 the milder law gives us grounds to assert, as the

8 Defence has already said -- of course it is up to you to

9 accept this or not, but it is our firm opinion that you

10 should accept this -- is that you cannot start out from

11 a higher sentence than 15 years, because the death

12 penalty has been deleted. This means that the

13 alternative penalty of 20 years has been deleted as

14 well.

15 JUDGE STEPHEN: Can I see if I understand you correctly?

16 In the first place you are saying that it is only the

17 Federal Penal Code that we are concerned with if we are

18 looking for Yugoslav law which deals with crimes against

19 humanity, with war crimes, and therefore we need not

20 concern ourselves at all with the penal codes of the

21 republics.

22 MR. VUJIN (in interpretation): Your Honour, if you rely

23 upon crimes against humanity only from the domain of

24 international law, then the answer is yes. Only the

25 Federal Code regulates this subject matter. This is the

1 case now and it was the case beforehand, and even before

2 that.

3 JUDGE STEPHEN: And if we are looking at not merely crimes

4 against humanity but war crimes generally, humanitarian

5 law, the same objection applies, does it not? We look

6 at the Federal Penal Code.

7 MR. VUJIN (in interpretation): Only the Federal Penal Code

8 is the code that regulates that subject matter.

9 JUDGE STEPHEN: Right. There has been no relevant

10 amendment to the Federal Penal Code dealing with those

11 sort of crimes, which are called for convenience war

12 crimes, in the last ten years; is that right?

13 MR. VUJIN (in interpretation): Yes.

14 JUDGE STEPHEN: But then you say that there is a further

15 factor that arises, namely the abolition in some

16 republics of the death penalty. Now what I don't follow

17 is how that affects the Federal Penal Code to the extent

18 to which the Federal Penal Code in relation to war

19 crimes contemplates that the penalty may be death, and

20 particularly if that abolition is an abolition republic

21 by republic and not by the Federal Government, by the

22 Federal legislation, by the Federal constitution, if you

23 will. Do you follow me?

24 MR. VUJIN (in interpretation): I have been trying to

25 understand what you have been saying. I'm not sure that

1 I have understood everything you said in its entirety,

2 so, if necessary, we shall go back to certain things,

3 but I shall try to explain. If you are only referring

4 to the Federal Republic of Yugoslavia?

5 JUDGE STEPHEN: Just before you do that, perhaps I can put

6 it more concisely. We have got as the only relevant

7 Statute the Federal Penal Code. However, that Federal

8 Penal Code imposes possible sentences for what I've

9 described as war crimes ranging from I think five years

10 to death. What is the effect of the abolition in

11 various republics of the death penalty upon the Federal

12 Penal Code? That's all.

13 MR. VUJIN (in interpretation): Your Honour, what

14 republics? Could you kindly tell me that?

15 JUDGE STEPHEN: Well, I don't know if it matters. Can the

16 abolition by -- I don't know what -- the constitutional

17 change perhaps, in particular republics of the death

18 penalty can that have any effect on the effect of the

19 Federal Penal Code?

20 MR. VUJIN (in interpretation): I must answer that question

21 by leaving aside what happened with the break-up of

22 Yugoslavia, namely at the time of Yugoslavia's break-up,

23 the secession of Slovenia and Croatian, and later Bosnia

24 and Herzegovina too, at that point in time we had a

25 single Federal Penal Code for all republics, that is to

1 say the entire country, which prescribed the criminal

2 offences of war crimes, and we agreed we would call them

3 that for the sake of simplicity. That was the law which

4 was amended in 1977 and which was in force at the time

5 of the break-up of Yugoslavia and all those events. In

6 that law at that time for those crimes the death penalty

7 did exist, and it could have been replaced by a 20 year

8 term of imprisonment from five years until the death

9 penalty. At the same time there were penal codes in all

10 the republics, but they do not regulate that subject

11 matter and that is why we are not interested in that at

12 all.

13 After the break-up of Yugoslavia, Slovenia,

14 Croatia, later Bosnia-Herzegovina, create states

15 overnight, so they take over legislation. They take

16 over the criminal code, the Penal Code of Yugoslavia as

17 their own code, too, and immediately after that Slovenia

18 and Croatia abolished the death penalty through the

19 adoption of their new constitutions, and at that time in

20 1993 the Federal Republic of Yugoslavia did the same

21 thing, the Federal Republic of Yugoslavia consisting of

22 Serbia and Montenegro. Therefore, since we advocate

23 the application of that code which was in force at the

24 time when those events took place, the death penalty was

25 applied then, but since it was changed, deleted through

1 the amendment of the law in 1993, according to Article 4

2 we claim that not a single court of law can pass the

3 death sentence for that crime, and therefore a term in

4 prison of 20 years cannot be passed either, because that

5 was there only as a replacement, as an alternative, and

6 that is why we believe that 15 years is the maximum that

7 can be imposed.

8 JUDGE STEPHEN: Can I then ask you one question? Assume

9 that The Republic of Macedonia and it alone had repealed

10 the death penalty. That would have no effect as far as

11 we are concerned, Macedonia being entirely irrelevant to

12 any charge which was laid against Mr. Tadic. What

13 relevance has the repeal of the death penalty in the

14 republics you have mentioned, which do not include

15 Bosnia, to the situation as far as Mr. Tadic is

16 concerned? You mentioned, you see, Slovenia, Croatia

17 and Serbia.

18 MR. VUJIN (in interpretation): Bosnia and Herzegovina.

19 I mentioned later Bosnia and Herzegovina. Now I shall

20 answer. Slovenia -- I'm sorry -- Bosnia and Herzegovina

21 as a Federation now or rather a federation of entities

22 -- I don't know what it is constitutionally speaking

23 now; I couldn't explain that to you -- Bosnia and

24 Herzegovina adopted a new constitution. This new

25 constitution, as we said yesterday, and I think that

1 Mr. Keegan agrees with that -- with me on that, this new

2 constitution took over all European and world

3 conventions regarding this matter, since these

4 conventions prohibit, and that is particularly the view

5 of the European Community, they prohibit the death

6 penalty, and Bosnia-Herzegovina accepted these

7 conventions, but abolished the death penalty, too.

8 With your permission, my opinion is the

9 following. The existence of a law, which I'm not

10 denying, in Bosnia-Herzegovina prescribing the death

11 penalty for this crime, too, is no longer relevant to

12 you because the law has to be in line with the

13 constitution. This is a basic constitutional postulate

14 of our constitutional law, that a law cannot be in

15 contrast to the constitution, and, as Mr. Keegan

16 explained yesterday, the constitutional court of Bosnia

17 and Herzegovina is judging the constitutionality of that

18 law, of that code, and therefore I believe that

19 Bosnia-Herzegovina by adopting the new constitution also

20 precluded the possibility of imposing a death sentence.

21 JUDGE STEPHEN: I'm sorry. I have a further --

22 THE INTERPRETER: Microphone, your Honour.

23 JUDGE STEPHEN: I'm sorry. I have a further question. Is

24 there a particular section or clause of the constitution

25 now in force in Bosnia-Herzegovina that you can point to

1 which expressly abolishes the death penalty, or is it

2 simply because there has been an adoption of various

3 international agreements by Bosnia-Herzegovina and one

4 provision of those agreements contemplates the

5 non-enforcement of the death penalty that you say that

6 is the result?

7 MR. VUJIN (in interpretation): Yes, not prescribing it and

8 that is what it says in the constitution. That's what

9 we saw in the papers received from Mr. Keegan. What were

10 the conventions that were taken over, and since these

11 conventions were accepted, then it was also accepted

12 that they could not prescribe the death penalty.

13 JUDGE McDONALD: What it says in the preamble to the

14 constitution is that it is inspired by the Universal

15 Declaration of Human Rights and the International

16 Covenant on Civil and Political Rights, and it goes on:

17 "... economic and social and cultural rights and

18 declaration of rights belonging to national or ethnic,

19 religious and linguistic minorities as well as other

20 human rights instruments". It is really wonderful,

21 because the constitution has been inspired by these

22 wonderful covenants. In the United States I suppose it

23 may be inspired -- it does not say in its constitution

24 -- inspired, but it has a reservation and routinely, at

25 least in some states, enforces the death penalty. So

1 what does inspire mean? What other guidance can we get

2 from this constitution?

3 MR. VUJIN (in interpretation): Every law has to be

4 interpreted in the spirit of what the legislator

5 wanted. If the legislator did not want to accept that,

6 that they would abolish the death penalty, then the

7 legislator would not have entered this provision in the

8 constitution, mention of these international covenants,

9 and the international covenant does make it obligatory

10 for the signatories to that take-over, because the Penal

11 Code also acted in accordance with that which is

12 contained in the international covenants.

13 JUDGE McDONALD: Thank you, Mr. Vujin. Are you complete

14 with your submission?

15 MR. VUJIN (in interpretation): No. In conclusion, in

16 respect of the personality of Dusko Tadic, I would like

17 to say a few more things. I believe that you have

18 before you a person who, if we were to make a gradation

19 of the possible degree of responsibility, he is at the

20 lowest degree of responsibility. That is what you have

21 to take into account when you pass the sentence. You

22 have before you a person who is not different from other

23 people. He was not a monster and you have before you a

24 person who expects you to pass a just decision. Thank

25 you.

1 JUDGE McDONALD: Thank you, Mr. Vujin. The Prosecution,

2 I know, has some things to say. I have some questions

3 to ask the Prosecution as well. Particularly I am

4 concerned -- we do need to recess but I am particularly

5 concerned with the basis for the decision -- the

6 statement that was made by Mr. Niemann yesterday, was it

7 -- was it yesterday or the day before -- the day before

8 that a sentence of life would really mean 15 years.

9 What is your basis for that and we can talk about that

10 after the lunch break. Also what effect does the

11 principle of nullem crimen have on any sentence that we

12 may impose in excess of 15 years? What is the relevance

13 of the Nuremberg judgements? There may be more questions

14 that arise but those are matters that we have talked

15 about and we will stand in recess until 2.30.

16 (1.00 pm)

17 (Luncheon adjournment)

18

19

20

21

22

23

24

25

1 (2.30 pm)

2 JUDGE McDONALD: Mr. Niemann, or Mr. Keegan, whoever wishes

3 to speak.

4 MR. NIEMANN: Thank you, your Honours. Your Honours, I will

5 address some of the questions that have been raised by

6 your Honours and Mr. Keegan will deal with some other

7 matters very briefly.

8 Your Honours, firstly, with respect to the 15

9 years in terms of sentencing a life sentence, which may

10 amount to 15 years or less, I think probably it may be

11 easier for me simply to hand to your Honours a table

12 that we had prepared for this question, which does set

13 out the position in a number of countries, including

14 Italy and Norway, and if I can hand that up to your

15 Honours.

16 JUDGE McDONALD: Finland, I think.

17 MR. NIEMANN: Finland, I should say, yes. Perhaps it

18 doesn't include Finland. Yes, it does include Finland.

19 When your Honours have that, I can just mention very

20 quickly the law applicable to each.

21 JUDGE McDONALD: Do you have a copy of that, Mr. Vujin?

22 MR. NIEMANN: No. I would ask that a copy be given to the

23 Defence, your Honour.

24 JUDGE McDONALD: Okay. Of course, before it's admitted,

25 you'll need to explain how this was prepared and who

1 prepared it, that sort of thing.

2 MR. NIEMANN: Yes, your Honours. I am not tendering it as

3 anything other than an aide memoire for the court. If

4 your Honours are not assisted by it, I will take it

5 back. I only thought that it was rather nicely set out,

6 the provision, but if there is any objection to it, I

7 will simply withdraw it.

8 JUDGE McDONALD: Now would you explain how this was

9 prepared?

10 MR. NIEMANN: It was prepared by a survey of the relevant

11 legislation of each of the countries that are there

12 mentioned, looking at the issue of, question of parole,

13 and it does address the question of remission on top of

14 parole. It merely deals with parole. Then there is in

15 some cases remission that is available on top of there,

16 there being two issues there.

17 Dealing, first, with Austria, Article 46,

18 paragraph 5, states that:

19 "Persons sentenced to life are eligible for

20 conditional release after 15 years".

21 In Belgium by law of May 31, 1988, Article 1:

22 "A prisoner serving a life sentence can seek

23 parole after ten years for one time offenders or 14

24 years for repeat offenders".

25 I have no information on Bosnia-Herzegovina or on

1 Croatia, or on Denmark. In Finland it is permissible

2 for the court to sentence a person to imprisonment and

3 can be fixed -- for a fixed period or for life, but

4 there is no specific other provision relating to parole.

5 In Germany, Article 453B of the Code of Penal

6 Procedure deals with probation and supervision.

7 Article 454 deals with conditional release and the Penal

8 Code that indicates that a person sentenced to life can

9 be released on parole after at least 15 years.

10 I have nothing on Iran. In Italy the situation is

11 slightly different. It provides that an offender --

12 this is Article 176 of the Code. Excuse me. 176 of the

13 Liberadzoni Code. I think I have stated that

14 correctly. It states an offender sentenced to life

15 imprisonment can be admitted for additional freedom

16 after having executed at least 26 years of the sentence.

17 In addition to that, there is a provision which

18 permits remissions to be earned at a rate of 45 days

19 every six months of this sentence. That operates on the

20 sentence. As I understand Italian law, and I don't

21 profess to be an expert in any of these areas, that

22 operates concurrent with this 26 year period. So if I

23 can state it again. One earns remissions at this rate,

24 the 45 days per every six months, but in any event one

25 can be released after serving at least 26 years,

1 depending on -- of the sentence.

2 There is no similar such division in the

3 Netherlands. In Norway according to the Prison Act any

4 inmate who has been sentenced to imprisonment for more

5 than 18 years may be released on parole when he has been

6 in prison for at least 12 years.

7 In Pakistan after 14 years imprisonment there is

8 no right of imprisonment -- release, but the government

9 can consider remission of the sentence. This is

10 provided for by Section 401 of the Code of Criminal

11 Procedure. But the Prisons Act provides in Pakistan

12 that a person who has been sentenced to imprisonment for

13 life shall not be shortened to less than 15 years.

14 In Spain prisoners who have observed good

15 behaviour are eligible for conditional release on parole

16 when they have served three-quarters of their sentence.

17 The three-quarter requirement is mitigated if they have

18 continuously participated in labour or cultural or

19 prison activity, in such cases two-thirds of the

20 sentence is sufficient to grant parole.

21 I have no material on Sweden. In Switzerland

22 Article 38 of the Swiss Penal Code provides that a

23 person can apply for conditional release after having

24 served at least 15 years of the life sentence.

25 JUDGE McDONALD: Excuse me. I'm sorry.

1 MR. NIEMANN: I have been reminded, your Honour, in Finland

2 the situation is that in respect of a fixed sentence,

3 two-thirds of the -- after serving two-thirds of the

4 sentence the prisoner can seek release.

5 JUDGE STEPHEN: I don't understand the relevance of any of

6 this. Let me put my difficulty to you. My

7 understanding is that agreements have been entered into

8 with two countries anyway for the imprisonment in those

9 countries, Finland and Italy, of people sentenced to

10 terms by this Tribunal, and each of those agreements

11 says nothing at all about their own practice for

12 remission or parole or whatever you like to describe it

13 as, other than the fact that if local nationals become

14 entitled to release after a certain period, then the

15 matter is referred to the President for the time being

16 of this Tribunal, and he makes a decision as to what to

17 do. What is the relevance, other than perhaps a general

18 survey to see what most nations tend to do with life

19 sentences, to all this information, for instance, about

20 Sweden and Spain and so on? Why does it help us in any

21 way?

22 MR. NIEMANN: I think I was attempting to respond to Judge

23 McDonald's question.

24 JUDGE STEPHEN: How did you think you were responding?

25 JUDGE McDONALD: Well, my question really was, as I thought

1 about it, the statement was made that, well, if he is

2 sentenced to life, he will only serve 15 years. I asked

3 what was the basis for it. Now you have given us this,

4 but what Judge Stephen is referring to is something very

5 different and that has to do with the agreements we have

6 with the States and whether this really operates and

7 that is: do the States control or does the Tribunal

8 control?

9 JUDGE STEPHEN: And do you have any submission on that?

10 MR. NIEMANN: Ultimately, your Honours, the Tribunal

11 controls in terms that the final decision has to be made

12 by the President. It has to come back to the

13 President. The point I was making is that there is

14 certainly a grey area as to whether prisoners coming

15 from this Tribunal would little (a) be eligible for

16 parole or (b) --

17 JUDGE STEPHEN: Just a moment. When you talk about

18 eligible for parole, I can understand that in relation

19 to a national court and the prisoner remains in that

20 country and is supervised, because that is what parole

21 means. How do you conceive parole as operating in

22 relation to somebody who is not a national of that

23 country, and whom that country certainly does not want,

24 I imagine, to be accepted as a new settler? What

25 happens after he is released on parole? What possible

1 application does parole have in those circumstances?

2 MR. NIEMANN: It's conceivable in terms of supervision of

3 the parole.

4 JUDGE STEPHEN: It is impossible, is it not?

5 MR. NIEMANN: It is not impossible.

6 JUDGE STEPHEN: Why not?

7 MR. NIEMANN: If the person stays in the country. That's

8 unlikely.

9 JUDGE STEPHEN: How is he going to stay? He is going to be

10 admitted as a new settler? That doesn't seem very

11 likely, does it?

12 MR. NIEMANN: No.

13 JUDGE STEPHEN: Therefore can't we disregard this whole

14 question of parole? Remission may be a different

15 question altogether but it is not a question of parole

16 surely.

17 MR. NIEMANN: Well, it may end up being that, but because it

18 is discretionary in the hands of the President, it would

19 be possible for the President to say: "The person has

20 served this period of time and been of good behaviour

21 during this period of imprisonment. Ordinarily the

22 person will be under parole in the State and under

23 supervision in parole" but that aspect of it could be

24 waived. The President could say he could be released

25 without supervision. It is entirely possible.

1 JUDGE STEPHEN: So all this is relevant only to the

2 guidance in years to come of the President for the time

3 being of this Tribunal?

4 MR. NIEMANN: Yes.

5 JUDGE McDONALD: Let me ask a question regarding the

6 citation to the Finland law that provides that after

7 two-thirds of the sentence an inmate may seek release,

8 and if you can help me with Italy's law, if you can

9 refer to a citation, if you know, as to when there would

10 be an eligibility for release for fixed sentence --

11 fixed term of years. Actually, you know, Mr. Niemann,

12 these are obviously problems, and counsel, that we are

13 struggling with ourselves, trying to review the

14 applicable legislation and then look at the Statute and

15 then consider what type of control a Tribunal would have

16 over a sentenced person, when perhaps the Tribunal will

17 not be around in four years. So we would appreciate any

18 assistance that either counsel can give to us, but

19 I would also like you to give me some assistance on a

20 citation to Italy or I can perhaps ask one of the legal

21 assistants to find it.

22 MR. NIEMANN: No, your Honour. If I can assist you, I would

23 like to. The citation in Italy is -- the Italian Penal

24 Code, title 2, Article 17, deals with the question of

25 the life sentence and Article 176 deals with the

1 question of the reduction of the sentence and

2 conditional freedom after having executed at least 26

3 years of the sentence.

4 JUDGE McDONALD: That's for life. I am really enquiring

5 about fixed term, but if you cannot quickly locate it --

6 MR. NIEMANN: I do not have anything for fixed term. That's

7 all I had for life. My previous searches are only in

8 relation to life, your Honour.

9 JUDGE McDONALD: Fine.

10 MR. NIEMANN: Excuse me, your Honour, for a minute. Your

11 Honour, we have the actual copy of the Italian code.

12 It's in Italian and we will have to have it translated,

13 but if we may, we could have it translated and provided

14 to you, which I think might be easier. I am

15 uncomfortable being so unfamiliar with Italian law to be

16 making the submission on that say-so. I think I would

17 feel better if I was to supply you with a copy of the

18 Italian provision.

19 JUDGE McDONALD: The same with Finland. We have several

20 legal assistants who speak Italian, so they will help.

21 MR. NIEMANN: We have the same in relation to Finland. If

22 I may give an undertaking in relation to that. We will

23 endeavour to do it as quickly as possible, but it will

24 depend on the resources of the interpreters in terms of

25 Finnish and Italian interpreters.

1 JUDGE McDONALD: We will resolve it. Thank you.

2 MR. NIEMANN: We will certainly provide that to your

3 Honours.

4 Just to go back for a moment to what your Honour

5 Judge Stephen was saying in relation to supervision,

6 which is obviously going to be a very serious problem,

7 I think, it was part of the reasons why, in my

8 submission, I was saying that a sentence dealing with

9 rehabilitation was -- that was primarily concerning

10 itself with that issue was problematic, because there is

11 a whole number of issues dealing with rehabilitation

12 that couldn't be facilitated by this Tribunal, because

13 neither is it, in my submission, reasonable for us to

14 devise our own rehabilitative plan and programme for

15 prisoners and then say to a State: "Follow this".

16 I think that may present its problems.

17 Secondly, and of course primarily, we don't have

18 such a provision in place in any event, so there is

19 nothing there for that to happen.

20 It is perhaps in a confused sort of way my

21 submission was to say in the absence of that aspect of

22 rehabilitation and sentencing on the base of

23 rehabilitation that is may be if remissions are earned

24 for good behaviour and parole is granted for good

25 behaviour, that may be in a sense a compromise to

1 facilitate the element of rehabilitation which your

2 Honours may be concerned about.

3 It is possible, of course, not to deal with it at

4 all; simply dismiss it as an issue and just deal with

5 the question of punishment, but if your Honours were

6 concerned about it, this seemed to me to be a sort of

7 compromise position, but it doesn't go all the way in

8 the sense that there's no supervision, and once the

9 person is released on parole or after earning

10 remissions, that's the end of the matter. That's about

11 as far as I can take that, I think.

12 Your Honours, dealing now with the question of

13 nullem crimen and nulla poena sine lege, in our

14 submission this has been incorporated in the

15 international covenant for civil and political rights

16 and in particular Article 15, and I hand up a copy of

17 Article 15 and there is a copy for the Defence.

18 JUDGE McDONALD: Mr. Vujin, with respect to Prosecution

19 Exhibit 375, is that, subject to your verifying this

20 chart for accuracy, do you have any objection to it?

21 MR. VUJIN (in interpretation): If the court is able to

22 check the accuracy of this document we would have no

23 objection to the document itself. We might have some

24 other objections, but I would explain those later.

25 JUDGE McDONALD: It will be -- well, do you have objection

1 to its admissibility at this time, or just the weight to

2 be accorded it?

3 MR. VUJIN (in interpretation): No. I don't understand

4 really the effort of the Prosecutor to talk about

5 remissions of penalty, and I have something to say

6 regarding pardon or mitigation of sentence. We are now

7 talking about the punishment and this is something quite

8 different, if I understand it well. If this is related

9 to the punishment, then would I be please allowed to

10 express my opinion about it, because the Defence has not

11 spoken about it?

12 JUDGE McDONALD: The Prosecution Exhibit 375 will be

13 admitted. I imagine what you are saying is that

14 punishment should be determined and the appropriate

15 punishment. Now how much time, in fact, will be served,

16 etc., is another concern that may not be relevant to the

17 first issue, but subject to this being confirmed, it

18 will be admitted, 375. Now 376 is a portion of

19 Brownlie’s' basic documents. Any objection to this,

20 Mr. Vujin? Page 282 and 283.

21 MR. VUJIN (in interpretation): No, your Honour.

22 JUDGE McDONALD: That will be admitted. You wanted to

23 respond to 375.

24 MR. NIEMANN: I'm sorry, your Honour, yes. I am not seeking

25 to tender any of these into evidence. It is really part

1 of my submission to assist the court, but I really don't

2 -- I am not seriously trying to admit them as evidence

3 in the proceedings.

4 JUDGE McDONALD: I don't care how we proceeded. They have

5 been given a number. They have been given a number. If

6 you don't wish to admit them, Mr. Vujin would say don't

7 give them to us. Attach them to your submission. What

8 he wouldn't do is supplement them. I really don't

9 care. Mr. Vujin, how would you like us to handle this?

10 MR. VUJIN (in interpretation): In my view Exhibit 375

11 should not be admitted as evidence, considering also the

12 position of the Prosecution.

13 JUDGE McDONALD: 375 is not admitted. It will be accepted

14 as part of the written submissions of the Prosecution.

15 376.

16 MR. NIEMANN: Same position on that, your Honour.

17 JUDGE McDONALD: It will be accepted as part of the written

18 submissions of the Prosecution. Okay. So neither of

19 them are admitted into evidence. Mr. Niemann?

20 MR. NIEMANN: Thank you, your Honours. As I said, your

21 Honours, Article 15 of the International Covenant deals

22 with the principle of nullem crimen sine lege and nulla

23 poena sine lege. It provides that no person shall be

24 held guilty of a criminal offence. I am not going to

25 read it all to you. The second sentence is the

1 significant part with respect to penalty:

2 " ... nor shall a heavier penalty be imposed than

3 the one which was applicable at the time when the

4 criminal offence was committed. If subsequent to the

5 commission of the offence provision is made by law for

6 the imposition of a lighter penalty, the offender shall

7 benefit thereby".

8 Your Honours, dealing firstly with this particular

9 covenant, it, of course, is a covenant between States

10 and doesn't purport to bind international organisations

11 such as this, but I am not going to argue, your Honours,

12 that your Honours shouldn't be at least -- comply with

13 the provisions of it as such because it is an

14 international instrument, and it's really more of a

15 technicality that it doesn't apply to international

16 organisations.

17 The issue, though, your Honour, with respect to

18 paragraph 1 of Article 15 is that it deals in a sense

19 with the question of the application of a higher penalty

20 than that provided for. In our submission, and

21 Mr. Keegan will deal with this in greater depth, but in

22 our submission if the penalty applicable at the time is

23 the death penalty, then your Honours then don't have to

24 concern yourself with this question of 20 years, 15

25 years, five years at all. What your Honours must be

1 concerned not to do is to impose a penalty greater than

2 the death penalty, which, of course, you can't do,

3 I would submit, in any event.

4 So assuming, for example, that the law provided

5 that the maximum penalty was life imprisonment, and then

6 assuming also that your Honours were not -- that the

7 death penalty was available to your Honours, you

8 couldn't then impose the death penalty above the

9 sentence of life imprisonment. The life imprisonment

10 would be the maximum penalty that you could impose.

11 Then if there was sort of unusual provisions that

12 operated below the life sentence and varied from State

13 to State, in our submission your Honours do not need to

14 be concerned about that in terms of the application of

15 this principle. All your Honours need to be concerned

16 about is not going greater than that which is provided

17 for, but, as I say, Mr. Keegan will deal with that

18 question.

19 More significantly, in my submission, paragraph 2

20 of Article 15 is the important and operative provision.

21 It says:

22 "Nothing in this Article shall prejudice the trial

23 and punishment of any persons for any act or omission

24 which at the time when it was committed was criminal

25 according to the general principles of law recognised by

1 community of nations".

2 In my submission this provision clearly on its

3 face excludes the criminal provisions with which your

4 Honours are dealing. Now there is some argument,

5 I should say, to suggest that there is some doubt about

6 how this operates in a national environment, because it

7 deals with international laws in a national environment

8 in Article 1, but at international law, in my

9 submission, there is little or no doubt about the

10 matter, that with respect to the question of penalties

11 there seems -- it would seem that even as far back as

12 the draft code in 1954 of the international law

13 commission provided that the penalty for any offence

14 defined in the code shall be determined by the Tribunal

15 exercising jurisdiction over the individual accused,

16 taking into account the gravity of the offence.

17 The Article provides for the punishment of the

18 offences defined in the code. Such provision is

19 considered desirable in view of the generally accepted

20 principle of nullem crimen nulla poena sine lege.

21 However, it is not deemed practical to prescribe a

22 different penalty for such offence. I will make --

23 MR. VUJIN (in interpretation): Sorry. We have some problem

24 with the translation. It's too fast.

25 MR. NIEMANN: I am sorry. I will slow down.

1 JUDGE McDONALD: You didn't appear to be speaking too

2 quickly, though.

3 THE INTERPRETER: It was read out too quickly, your Honour.

4 MR. NIEMANN: I will endeavour to slow down.

5 JUDGE McDONALD: Thank you.

6 MR. NIEMANN: Rather than repeat the whole submission,

7 I just emphasise, your Honours, at international law, as

8 is reflected in the draft code of 1954 of the

9 International Law Commission, in Article 5 -- it's now

10 Article 3, I believe in the 1991 -- 1996 version of that

11 draft the same provision is now provided which is the

12 penalty for any offence defined in the code shall be

13 defined by The Tribunal. Mr. Keegan will pick up on this

14 point in terms of the Tribunal itself defining the

15 penalty.

16 Perhaps I might leave my submission at that point

17 and I will make available to your Honours a copy of

18 Article 3, which was previously Article 5. Unless there

19 is any matters that help your Honours.

20 JUDGE McDONALD: No.

21 JUDGE STEPHEN: This copy or these pages from Brownlie’s

22 work set out the International Covenant that we were

23 told and, in fact, saw has been adopted in the new

24 constitution of Bosnia-Herzegovina.

25 MR. NIEMANN: Yes, your Honour.

1 JUDGE STEPHEN: Is that right?

2 MR. NIEMANN: That is the same covenant, your Honour.

3 JUDGE STEPHEN: Thank you.

4 MR. KEEGAN: Thank you, your Honours. On this issue of the

5 principle of legality in the situation we are discussing

6 I think we can summarise the principle of legality that

7 is nullem crimen sine lege and nulla poena sine lege as

8 the doctrine as providing protection that the crimes and

9 more specifically for our issue the punishments which

10 are applicable will not be created or imposed by this

11 Tribunal to apply retroactively to an accused or punish

12 a convicted person more severely than that person could

13 have been punished at the time they committed their

14 acts. They serve, if you will, to provide a protection

15 against the abuse of power.

16 Some of the argument we have heard flows from what

17 could be called the strict positivist interpretation of

18 those doctrines and they might argue that the Statute of

19 the Tribunal is deficient in that it does not set out

20 specifically the penalty for each of the crimes that

21 fall under Articles 2 through 5. We believe when one

22 looks at the application of the doctrine of legality in

23 International Law and by States, particularly in the

24 last half century, this strict interpretation is not

25 borne out. Again we will cite to the ILC Draft Code.

1 I think, to keep this presentation very direct,

2 Article 24 provides a general framework for the

3 penalties which are applicable in this Tribunal.

4 Rule 101 then specifies the limit of the penalties and

5 the circumstances that the Trial Chamber shall consider

6 in arriving at a sentence. The authority of the judges

7 to fashion Rule 101, of course, flows from Article 15.

8 Thus, the Statute and the Rules meet the requirements of

9 the principle of legality.

10 Article 24 and Rule 101 are in consonance with the

11 principles of legality because their terms are firmly

12 rooted in terms of International Law and National Law

13 which was in force in 1992 and they do not apply a

14 sentence that is more severe than that which was

15 applicable at the time that Dusko Tadic committed his

16 crimes.

17 The precedents found in both customary

18 International Law and National Law which apply to such

19 violations, that's violations of International

20 Humanitarian Law support the imposition of a life

21 sentence. In International Law we can look to such

22 precedents as Nuremberg and Tokyo. In national law we

23 believe you can look beyond the laws which applied in

24 the territory of the Former Yugoslavia and can look to

25 other nations which have tried similar matters, and that

1 is these kinds of violations of international

2 humanitarian law. So one could look to France,

3 Australia, Canada, Israel, Germany, the other countries

4 which have had war crimes trials, if you will.

5 With regard to sentencing practice in the former

6 Yugoslavia, I do not wish to repeat our submissions

7 regarding the decision in the Erdemovic case, except to

8 say that is correct of course, the Trial Chamber is not

9 bound by that or any other particular penal system.

10 We can look to the fact that in 1992 such

11 violations carried the death penalty. That would

12 indicate that in the territory of the Republic of

13 Bosnia-Herzegovina the law provided, as it did in most

14 states at that time, for these kinds of violations the

15 most serious punishment or penalty available under the

16 law and we believe that is the relevant consideration

17 here.

18 Using that analogy then this Trial Chamber may say

19 that the sentencing practice or Penal Code in effect in

20 Bosnia-Herzegovina at that time supports the imposition

21 of the most severe punishment available to this

22 Tribunal, and that is, of course, the life sentence.

23 Now, with respect to Judge Stephen's question

24 earlier about whether we are limited to the Federal code

25 in the former Yugoslavia, we would submit that the court

1 is not. We would submit that the language in Article 24

2 referring to courts of the former Yugoslavia envisaged a

3 reference to both the republics as well as the Federal

4 level in the former Yugoslavia, because, of course, at

5 the time the crimes were committed by Dusko Tadic The

6 Republic of Bosnia-Herzegovina was an independent state

7 with its own Penal Code. The crimes were committed in

8 the territory of that state and it would appear to us

9 that it is the Penal Code of that state which would be

10 the one you would look to.

11 JUDGE STEPHEN: But it was the same as the Federal Code,

12 was it not?

13 MR. KEEGAN: In this particular case it was.

14 JUDGE STEPHEN: So what does it matter?

15 MR. KEEGAN: Except if in 1992 there was a question about

16 the application of the death penalty, for example, in

17 what was then the Federal Republic of Yugoslavia, that

18 would not be the issue. It would be the question of was

19 the death penalty applicable in Bosnia-Herzegovina. We

20 believe that interpretation is valid when one considers

21 the jurisdiction of this Tribunal. In other cases you

22 will be having to look at the laws of Croatia which was

23 an independent state at a certain period of time,

24 perhaps even Slovenia should a case arise from there.

25 It is not envisaged that you are limited to the old

1 Federal law of the former Yugoslavia.

2 With respect to Judge McDonald's question about

3 the relevancy of the Nuremberg principles, we submit it

4 would indeed be an odd interpretation of the principle

5 of legality if it was well recognised, which we believe

6 it is, that this Tribunal looks to the Nuremberg Charter

7 and trials as well as to Tokyo trials for precedents and

8 interpretation with regard to nullem crimen sine lege,

9 half of the principle of legality, but then would not be

10 able to look to those precedents for nulla poena sine

11 lege, that's the penalty phase. In fact, we believe

12 that this is borne out by the ILC in reference to the

13 comments made by my colleague and I am citing now from

14 UN document A/51/10, which is the report of the

15 International Law Commission on the work of its 48th

16 session, 6th May-26th July 1996. It is on page 29,

17 which is commentary to Article 3, referred to by

18 Mr. Niemann. Sub-paragraph 7. It is speaking about the

19 application of the penalties. Article 3 does not itself

20 describe the penalties. There was a debate between, in

21 fact, if you will, 1954 and the present time about

22 whether specific penalties should be addressed for each

23 of the crimes. That debate has been resolved

24 essentially back to the original language -- close to

25 the language of the 1954 code and the Statute itself as

1 it currently stands does not specifically set out a

2 penalty. It references that an individual who is

3 responsible for a crime against the peace and security

4 of mankind shall be liable to punishment. The

5 punishment shall be commensurate with the character and

6 gravity of the crime.

7 In the commentary, there, too, it says:

8 If, on the other hand", referring to the penalty

9 to be ascribed, "the jurisdiction lies with an

10 international court, the applicable penalty shall be

11 determined by an international convention, either in the

12 Statute of the International Court, or in another

13 instrument", presumably perhaps the Rules of Procedure

14 and Evidence, "if the Statute of the International Court

15 does not so provide".

16 It is, in any event not necessary for an

17 individual to know in advance the precise punishment, so

18 long as the actions constitute a crime of extreme

19 gravity for which there will be severe punishment. This

20 is in accord with the precedent of punishment for a

21 crime under customary International Law or general

22 principles of law as recognised in the Nuremberg

23 judgement and in Article 15 of the International Covenant

24 on Civil and Political Rights.

25 So again, your Honours, we would submit that the

1 Statute and the Rules of this Tribunal are fully in

2 accord with the principles of legality, and that the

3 plain language meaning of Article 24, when it talks in

4 terms of having recourse to this sentencing practice in

5 the courts of the former Yugoslavia does not limit this

6 court to those practices, or those punishments, and that

7 this court can draw from that, as stated in the

8 Erdemovic case, that in keeping with International Law

9 these crimes, both in the former Yugoslavia and

10 elsewhere, are those that merit the most severe

11 punishment available to the jurisdiction.

12 I have some information available on the

13 constitution of Bosnia-Herzegovina and the applicability

14 of the International Covenant, but more particularly the

15 European Covenant, which is the covenant that is

16 specifically referred to in Article 2 of that

17 constitution as being applicable, and having priority

18 over all other law in the territory of

19 Bosnia-Herzegovina.

20 So as to the question of the death penalty, I can

21 only say that's on page 26.

22 JUDGE McDONALD: I see.

23 MR. KEEGAN: Of that index we have gave you, your Honour.

24 JUDGE McDONALD: Article 2?

25 MR. KEEGAN: Article 2, sub-paragraph 2.

1 JUDGE McDONALD: Okay.

2 MR. KEEGAN: You will see there it says:

3 "The rights and freedoms set forth in the European

4 Convention shall apply directly in Bosnia-Herzegovina

5 and we shall have priority overall other law".

6 Protocol 6 to the European Convention as a general

7 matter abolishes the death penalty. However, in

8 Article 2 it says that a State may make provision in its

9 law for the death penalty in respect of acts committed

10 in time of war or in imminent threat of war. So it in

11 and of itself also allows for the death penalty for, if

12 you will, war crimes, and presumably that would carry on

13 for crimes against humanity and genocide committed

14 during a time of armed conflict, which would mean for us

15 Article 5 of our Statute.

16 JUDGE McDONALD: What is the -- the suggestion is that the

17 constitution, and I have them together -- constitution

18 speaks of aspiring to certain rights, and I guess in the

19 preamble -- then Article 2 incorporates certain rights

20 and freedoms.

21 MR. KEEGAN: Yes, your Honour.

22 JUDGE McDONALD: You are saying that notwithstanding the

23 abolition of the death penalty as provided there in that

24 convention, there is still left open to States who

25 ratify or whatever is the procedure they use, to provide

1 for the death penalty in war crimes?

2 MR. KEEGAN: Yes, your Honour.

3 JUDGE McDONALD: For war crimes cases?

4 MR. KEEGAN: Protocol 6 to the convention, Article 2.

5 JUDGE McDONALD: That's what I'm saying. What is the

6 status of the Penal Code in Bosnia-Herzegovina and what

7 are the provisions for ratification, or at least

8 acceptance of the rights guaranteed by these

9 conventions?

10 MR. KEEGAN: Yes, your Honour. At the current time the

11 Penal Code in The Republic of Bosnia-Herzegovina still

12 provides for the death penalty for a number of crimes,

13 including Articles 142 -- 141 and 142, the sections

14 which you have, which are war crimes, if you will.

15 JUDGE McDONALD: Right.

16 MR. KEEGAN: The question that arises is two things. One,

17 you have Article 2, sub-paragraph 2, which would seem to

18 indicate that the death penalty will have to be

19 abolished for everything but war crimes, but in addition

20 to that, you then have this preamble language, which

21 talks about the International Covenant and the universal

22 declaration as well as others, and provides for later in

23 the constitution a Human Rights Commission in Annex 6

24 and it talks about respect for the highest standards of

25 human rights. Some would argue that would call for an

1 abolition of the death penalty outright. My point the

2 other day was there is certainly some ambiguity now as

3 to what courts in the territory of Bosnia-Herzegovina

4 could do at this time but as a matter of law the death

5 penalty is still part of the Republic's law, and at

6 least on its face would certainly apply for war crimes

7 or the crimes which are subject in this matter.

8 JUDGE McDONALD: As well as the 20 year option.

9 MR. KEEGAN: Yes, your Honour.

10 JUDGE STEPHEN: And this -- the constitution came into

11 force in 199 ...

12 MR. KEEGAN: ... 5. After the Dayton agreements. This was,

13 as you see, an annex to the Dayton accords.

14 JUDGE STEPHEN: What is the relevant law? At what date do

15 we look at the law?

16 MR. KEEGAN: We would submit, of course, that in terms of

17 the question of the relevant law you would look to the

18 law at the time the offences were committed. Certainly

19 I think that with respect to a penalty one would have to

20 say that under that sort of third aspect of nulla poena,

21 if the death penalty has now been abolished, you could

22 not now in turn impose it because it was in existence

23 then. The question becomes: are you then also, if you

24 will, left with only a 15 year maximum because you are

25 stuck with, if you will, applying the laws that applied

1 in the former Yugoslavia? That's when we say no, you're

2 not. You have recourse to consider those but you are

3 more specifically authorised as well to consider the

4 precedents of International Law as recognised by the ILC

5 and others and the Trial Chamber in the Erdemovic case,

6 that the principle of legality is more than respected by

7 the existing precedents available to you in

8 International Law in terms of the rights of this

9 accused.

10 JUDGE McDONALD: Okay.

11 JUDGE McDONALD: Thank you. Mr. Vujin, do you have anything

12 to add to all of this?

13 MR. VUJIN: To avoid repeating what I have already said,

14 your Honour, I shall briefly comment on the position of

15 the Prosecution that it is possible to apply the death

16 penalty in Bosnia-Herzegovina. In our submission that

17 is impossible for the reasons which we have given in our

18 oral presentation. Also we still believe that there are

19 contradictions between the provisions of Article 101 and

20 Article 24 of the Statute of the Tribunal, because we

21 feel the Rules have gone much further than envisaged by

22 Article 24 of the Statute. We also still believe that

23 you, as a Tribunal, in accordance with the provisions of

24 the Statute are bound to take into consideration only

25 the practice in the former Yugoslavia, because that is

1 how that rule should be understood, otherwise the

2 Statute would have said "the practice in other countries

3 or in similar such cases".

4 What I would like to say in answer to the comment

5 by my learned friend the Prosecutor, they are

6 subscribing to the application of the heaviest penalty

7 for such cases without trying to individualise the

8 penalty, to establish the circumstances under which this

9 concrete accused committed an offence, and to take into

10 account the circumstances of his personality, which I'm

11 sure you will take into consideration.

12 JUDGE McDONALD: I think, Mr. Vujin --

13 MR. VUJIN (in interpretation): In my view, you can use the

14 maximum penalty only as the starting point.

15 JUDGE McDONALD: I don't think that we need to re-hear

16 everything that Mr. Livingston said about individual

17 circumstances, Mr. Kostic and you yesterday also. I wish

18 you just to respond to this question of law. Otherwise

19 we will go back and forth forever. I understand

20 individual circumstances. Just as to the law, if we

21 can.

22 MR. VUJIN (in interpretation): Will you please then address

23 the question to me? I do not understand what I'm being

24 asked. I have answered all questions so far.

25 JUDGE McDONALD: I am asking you whether you have any

1 comment. I don't think you have. I think we have gone

2 back and forth enough on it. You have told us what the

3 law is in the Federal --

4 MR. VUJIN: I just said that I abide by all that I have said

5 and I just repeated that the positions of the

6 Prosecution were unacceptable.

7 JUDGE McDONALD: You have told us the law in the former --

8 the Federal Republic of Yugoslavia. The Professor told

9 us the incidents occurred in Bosnia-Herzegovina. You

10 have talked about recourse to the laws of the former

11 Yugoslavia. I gather it's your position that we

12 shouldn't even look to Bosnia-Herzegovina, because it's

13 just the Federal Republic of Yugoslavia that we should

14 look to? Is that your position as to the law?

15 MR. VUJIN (in interpretation): No, I never said that is

16 correct your Honour.

17 JUDGE McDONALD: Okay.

18 MR. VUJIN (in interpretation): I always use the term "the

19 former Yugoslavia" and Bosnia-Herzegovina, Slovenia and

20 Croatia have the same law as the one that was effective

21 in the former Yugoslavia. That is the point. Their

22 laws contain a provision that is contained in Article 4

23 of the Federal law. I do not have their laws at this

24 moment, but we will submit them in writing. This

25 provision from Article 4 from the Federal Republic of

1 Yugoslavia is that necessarily the lighter penalty has

2 to be applied.

3 JUDGE McDONALD: That's what the international --

4 MR. VUJIN (in interpretation): Yes.

5 JUDGE McDONALD: That has been drummed into us. We

6 understand that. Bosnia-Herzegovina has not abolished

7 the death penalty by code. The Federal Republic of

8 Yugoslavia has. Slovenia has, Croatia has. So there

9 are different implications for that and we understand

10 all of that. I just want you to make sure you are aware

11 that we are looking at all of the republics of what were

12 the former -- what was the former Yugoslavia.

13 MR. VUJIN (in interpretation): That is our position, too,

14 because only in that way will you be able to apply the

15 law properly, but I just wish to comment on what the

16 Prosecution has said referring to a draft of the

17 International Law Commission. I think that was the

18 draft of the Statute of a permanent criminal tribunal.

19 I would like to say that you are not bound by

20 those positions, because if that Law Commission could

21 have resolved all the problems, we would have had a

22 permanent international tribunal rather than the

23 international community forming this Tribunal to try

24 crimes committed in only one part of the planet. That

25 is one point.

1 Second, the Erdemovic case also cannot be taken as

2 being material for your decision-making. It can serve

3 as a basis for authority in view of the consequences

4 that Erdemovic produced as opposed to the consequences

5 of the acts that you found Dusko Tadic guilty of, but

6 that is not binding for anyone in this Tribunal.

7 JUDGE McDONALD: Mr. Vujin, do you have anything else to

8 offer on behalf of the defence?

9 MR. VUJIN (in interpretation): Yes. We have our concluding

10 position, that with respect to the penalty that you have

11 to pronounce our position is, as Dr. Kostic said

12 yesterday, that the time spent in detention so far is an

13 adequate punishment for the offences you have found him

14 guilty of, and that that should be your sentence and he

15 should be immediately released.

16 JUDGE McDONALD: Is there anything else, Mr. Niemann, or

17 Mr. Vujin, that you wish to offer?

18 MR. VUJIN (in interpretation): Mr. Tadic would like to make

19 a statement at the end, if possible.

20 JUDGE McDONALD: Very good. Mr. Tadic -- I think the

21 lawyers are conferring. Mr. Tadic, if you wish to say

22 anything at this time, you may be afforded the right

23 to. You are not required to, of course, but if you wish

24 to say anything on your behalf, you are free to do so.

25 MR. TADIC: I thank you for this opportunity to say

1 something, and if I may be allowed by the Trial Chamber,

2 I should like to read a note that I took down in the

3 break. I do not feel capable of speaking by heart.

4 Honourable court, I sincerely regret that the war

5 broke out in Bosnia-Herzegovina. I am sorry for the

6 suffering of the civilian population in the Municipality

7 of Prijedor and especially in Kozarac. As a citizen of

8 the Republika Srpska and a resident of the Municipality

9 of Prijedor I had to behave in accord with the civilian

10 and military laws on mobilisation which were in effect

11 in the territory of the Republika Srpska in 1992. By

12 decision of the Crisis Staff -- the decisions of the

13 Crisis Staff were law, and any refusal was treated as

14 desertion.

15 I never attended any military exercises. I did

16 everything to avoid being mobilised into the army of

17 Republika Srpska in 1992/1993. Members of traffic

18 policemen were never wartime units before, during nor

19 after the war operations in the Municipality of Prijedor

20 in 1992. I was not a soldier from 1991, like Goran

21 Borovnica. I was not the Prime Minister of Kozarac, as

22 Branko. I was not President of the local community like

23 Bosko Dragicevic. There never was a local board of the

24 Serbian Democratic Party. I was not President of the

25 Serbian Democratic Party, like Simo Miskovic. I was not

1 a military officer, like Major Zoran Karlica.

2 JUDGE McDONALD: Slow down just a little bit, because the

3 interpreters are trying to translate, and you have

4 probably seen, Mr. Tadic, we have had that problem

5 throughout the trial. Slow down just a little bit.

6 MR. TADIC: I was not Commander of the Serbian Army of the

7 Municipality of Prijedor, like Colonel Radmilo Zeljaja,

8 on the basis of whose name in 1992 after the war

9 operations in Kozarac my native town was called after

10 him Radmilovo. I was not a Commander of the Municipal

11 Crisis Staff of the Prijedor Municipality, like

12 Dr. Milomir Stakic, who is today President of the

13 Municipality of Prijedor. I was not a guard in any camp

14 in the Municipality of Prijedor, like Mladen Radic and

15 others. I was not a commander of a single camp, like

16 active policeman Zjelko Meakic and Professor Slobodan

17 Kuruzovic.

18 From June 16th, 1992, I was a reserve traffic

19 policeman on duty checking the security of passenger and

20 freight traffic -- civilian traffic. I was not the Head

21 of the patrol of traffic policemen, like Miroslav

22 Brdar. I was not commander of the traffic police of the

23 Municipality of Prijedor, like Dure Prpos. I was not

24 Commander of the General Police, like Dule Jankovic. I

25 was not Chief of Police of the Municipality of Prijedor,

1 like the lawyer Simo Drljaca. I never had any military

2 rank, nor was I ever decorated or praised by the

3 Military Police or civilian authorities of the

4 Municipality of Prijedor. I was not a soldier like Dule

5 Knezevic, with special merits. I was never praised by

6 the Commander of the Army, by Colonel Radmilo Zeljaja.

7 Those who were praised were members of the Military

8 Police, including military policemen Vijic, Milo

9 Dragovic, who arrested people and mobilised them into

10 Republika Srpska. I am not Mico Danicic, because he was

11 rewarded for the acts of which I have been found

12 guilty. I was never a councillor of the President of

13 the Crisis Staff, Dr. Milomir Stakic, who, as a reward

14 for the acts of which I have been found guilty, has his

15 own councillor, Mico Danicic.

16 I co-operated with this court from the day of my

17 arrest in February 1994 in Germany to the present.

18 I made statements over 50 hours to investigating

19 bodies. I asked to be tried by this International

20 Tribunal in The Hague, believing in its fairness and

21 justice. I thank you.

22 JUDGE McDONALD: Thank you, Mr. Tadic. You may be seated.

23 Is there anything else, Mr. Vujin?

24 MR. VUJIN (in interpretation): No.

25 JUDGE McDONALD: Mr. Niemann? The sentencing is scheduled

1 for July 14th at 10.00 am. We will stand adjourned.

2 (3.30 pm)

3 (Hearing adjourned until 14th July 1997 at 10.00 am)

4 --ooOoo--

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