Tribunal Criminal Tribunal for the Former Yugoslavia

Page 56

1 Monday, 18 July 2005

2 [Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE MUMBA: Good afternoon. May the Registrar please call the

7 case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-03-72-A, the Prosecutor versus Milan Babic. Thank you.

10 JUDGE MUMBA: Thank you. May I have the appearances. The

11 Appellant first. Who is appearing for the Appellant?

12 MR. MUELLER: Good afternoon, Your Honours. Peter Michael Mueller

13 as counsel.

14 MR. FOGELNEST: Robert Fogelnest as co-counsel, Your Honour.

15 JUDGE MUMBA: Thank you. And for the Prosecution, please.

16 MR. McKEON: Good afternoon, Your Honours. For the Prosecution,

17 Mark McKeon, together with Xavier Tracol and Kristina Carey, and to my far

18 right our case manager, Susan Grogan.

19 JUDGE MUMBA: Thank you.

20 Before I begin, I will give an oral order authorising the taking

21 of photographs and the audiovisual record of all proceedings in this

22 matter. The Appeals Chamber, having considered the request of the

23 Registry pursuant to Rule 81(D), as read with Rule 107 of the Rules of

24 Procedure and Evidence hereby orders that the taking of photographs by the

25 designated press photographers and the taking of the audiovisual record

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1 during this hearing is authorised as directed by the chief of security of

2 the Tribunal's Security Service.

3 The Appeals Chamber now moves to the judgement. In accordance

4 with the Scheduling Order issued on the 30th of June, 2005, today the

5 Appeals Chamber will deliver its judgement on the sentencing appeal in

6 this case.

7 Milan Babic has appealed against Sentencing Judgement issued by

8 the Trial Chamber of this Tribunal on 29th June 2004. This case concerns

9 events which took place in Croatia where the Appellant participated in a

10 joint criminal enterprise whose purpose was the permanent forcible removal

11 of the majority of the Croats and other non-Serb population from

12 approximately one-third of the territory of Croatia in order to make it

13 part of a new Serb-dominated state through the commission of crimes

14 against humanity and violations of the laws or customs of war. The joint

15 criminal enterprise came into existence from 1st August 1991 and continued

16 until at least June 1992. The Appellant participated in it until 15th

17 February 1992.

18 On 12th January 2004, the Appellant and the Prosecution filed a

19 plea agreement and a statement of facts in which the Appellant agreed to

20 plead guilty to count 1 of the Indictment, that is, persecutions on

21 political, racial and religious grounds as a crime against humanity

22 pursuant to Article 5(H) of the statute as an aider and abettor of a joint

23 criminal enterprise.

24 Having examined the plea agreement and the statement of facts, the

25 Trial Chamber expressed doubts regarding the characterisation of the

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1 Appellant's participation in the crimes charged as an aider and abettor.

2 The parties subsequently met and agreed to file a new plea agreement in

3 which the Appellant's participation in the crimes charged in the

4 Indictment was qualified as co-perpetratorship. The Prosecution

5 recommended a sentence of no more than 11 years' of imprisonment.

6 On 27th January 2004, the Appellant pled guilty to count 1 of the

7 Indictment for his participation in the joint criminal enterprise as a

8 co-perpetrator. The following day, the Trial Chamber accepted his plea

9 and found the Appellant guilty on count 1 of the Indictment.

10 On 29th June 2004, the Trial Chamber sentenced the Appellant to 13

11 years' imprisonment. The Appellant appealed his sentence on 3rd September

12 2004, and the appeal hearing took place on the 25th of April 2005.

13 Following the practice of the Tribunal, I will not read out the

14 text of the judgement except for the disposition. Instead, I will

15 summarise the issues of this appeal and the findings of the Appeals

16 Chamber.

17 I emphasise that this summary is not part of the written

18 judgement, which is the only authoritative account of the Appeals

19 Chamber's ruling and reasons. Copies of the written judgement will be

20 made available to the parties and to the public at the conclusion of this

21 hearing.

22 I will not elaborate on the standard of review on appeal and the

23 relevant provision on sentencing since I have already addressed that

24 during my opening statement at the appeal hearing.

25 In his notice of appeal, the Appellant initially raised 12 grounds

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1 of appeal. He subsequently withdrew his 12th ground of appeal. I will

2 briefly address the remaining 11 grounds in turn in accordance with the

3 subject matter and not necessarily in sequence.

4 Under his first ground of appeal, the Appellant argues that he was

5 coerced by the Trial Chamber to enter a plea of guilty as co-perpetrator

6 in the crimes charged in the Indictment. He contends that the Trial

7 Chamber erred in law and in fact and abused its discretion, first in

8 declining to accept the first plea agreement to which he wanted to plead

9 guilty as an aider and abettor, and second, in refusing to allow him in

10 the alternative to enter what he calls an open plea to the crime of

11 persecution so that the Trial Chamber would reserve its decision as to his

12 state of mind until after receiving the submissions of the parties at the

13 sentencing hearing.

14 Concerning the Appellant's first claim, it is clear from the

15 record of the proceedings that he was fully aware that he had a choice to

16 submit the original plea agreement for the consideration of the Trial

17 Chamber and that the Trial Chamber did not force the parties to enter a

18 new plea agreement.

19 The parties themselves decided to file another plea agreement to

20 which the Appellant pled guilty. When expressing doubts as to the legal

21 qualification of the Appellant's responsibility, the Trial Chamber acted

22 within the confines of Rule 62 bis of the Rules to assess the factual

23 basis of the guilty plea. It entered its finding of guilt on 28th January

24 2004 because it was satisfied that the plea was voluntary, informed,

25 unequivocal and supported by a factual basis.

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1 Regarding the Appellant's second claim, the Appeals Chamber notes

2 that as correctly pointed out by the Prosecution, there is no precedent

3 for such an open plea before this Tribunal. And it is difficult to see

4 how the Trial Chamber could have accepted an open plea in light of

5 Rule 62 bis of the rules.

6 The Appellant has not shown that because of his -- because his

7 request to file an open plea was denied the plea he entered was not

8 voluntary or was invalid. He specifically agreed in the plea agreement to

9 plead guilty to count 1, and the Trial Chamber fulfilled its duty of

10 ensuring that the plea agreement was entered into freely and voluntarily.

11 Accordingly, the Appellant's first ground of appeal is dismissed.

12 Under the second ground of appeal, the Appellant contends that the

13 Trial Chamber erred in law and in fact by failing to issue a reasoned

14 opinion and points out two alleged errors. First, the Appellant argues

15 that throughout the Sentencing Judgement, reference is made to claims,

16 statements, assertions and matters maintained by both the Appellant and

17 the Prosecution and that the Trial Chamber failed to make any finding as

18 to whether it accepted those facts as true. The Appeals Chamber finds

19 that the Trial Chamber need not make explicit findings on facts agreed

20 upon by the parties or on undisputed facts. The reference to such facts

21 is by itself indicative that it accepts those facts as true. In the

22 present case, these undisputed facts were referred to in the Sentencing

23 Judgement and there is no indication therein that the Trial Chamber

24 disputed their veracity. Second, the Appellant argues that the Sentencing

25 Judgement contains no reasoned explanation as to why a sentence of 13

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1 years would do justice while one consistent with the recommendation of the

2 Prosecution of less than 11 years would not.

3 He then compares his case with the case of Biljana Plavsic. As to

4 whether the Trial Chamber erred by failing to explain why the sentence

5 recommended by the parties was not appropriate, the Appeals Chamber

6 recalls that Trial Chambers shall not be bound by any agreement by the

7 parties but that nevertheless, in the specific context of a Sentencing

8 Judgement, following a plea agreement, Trial Chambers shall give due

9 consideration to the recommendation of the parties and should the sentence

10 diverge substantially from that recommendation, give reasons for the

11 departure.

12 In the present case, the Trial Chamber found that, I quote: "The

13 recommendation made by the Prosecution of a sentence of imprisonment of no

14 more than 11 years would not do justice in view of the applicable

15 sentencing principles and the gravity of Babic's crime taking account of

16 the aggravating and mitigating circumstances."

17 This shows that the Trial Chamber gave due consideration to the

18 recommendation made by the Prosecution and did explain why it could not

19 follow it.

20 With regard to whether the Trial Chamber erred in not imposing a

21 sentence similar to that of Biljana Plavsic, the Appeals Chamber recalls

22 that the precedential affect of previous sentences rendered before the

23 International Criminal Tribunal for the former Yugoslavia and the

24 International Criminal Tribunal for Rwanda is not only very limited and

25 also not necessarily a proper avenue to challenge a Trial Chamber's

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1 finding in exercising its discretion to impose a sentence. Comparisons

2 with other cases as an attempt to persuade the Appeals Chamber to either

3 increase or reduce the sentence are of limited assistance because the

4 differences are often more significant than the similarities and the

5 mitigating and aggravating factors dictate different results.

6 In this case, even assuming that the two cases were so similar as

7 to be meaningfully comparable, the Appellant's sentence is not so out of

8 reasonable proportion with Plavsic's sentence so as to suggest

9 capriciousness or excessiveness. The Appeals Chamber will therefore not

10 engage in a comparison between these two cases.

11 The Appellant's second ground of appeal is dismissed.

12 Under the third ground of appeal the Appellant contends that the

13 Trial Chamber erred in law and in fact and abused its discretion in

14 failing to properly consider and give appropriate weight to the evidence

15 with respect to his alleged limited participation in the crime of

16 persecution to which he pled guilty and that his sentence should be

17 accordingly reduced.

18 The Appeals Chamber finds that the Trial Chamber was entitled to

19 consider that the Appellant's role in providing support to the joint

20 criminal enterprise was not as limited as the parties suggested, and

21 therefore the Appellant's third ground of appeal is dismissed.

22 The Appeals Chamber now turns to the Appellant's fourth, fifth,

23 sixth and tenth grounds of appeal concerned with the Trial Chamber's

24 assessment of the mitigating circumstances.

25 Under the fourth ground of appeal the Appellant argues that while

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1 the Trial Chamber acknowledged but by agreeing to substantially cooperate

2 with the Prosecution, he incurred substantial security risks for himself

3 and his loved ones, it erred in law and in fact and abused its discretion

4 by considering this only as a mitigating circumstance instead of as a

5 substantial mitigating circumstance.

6 The Appeals Chamber finds that this argument is without merit as

7 the Trial Chamber in fact expressly stated that it gave substantial

8 mitigating weight to this factor. As a result, the Appellant's fourth

9 ground of appeal is dismissed.

10 Under the fifth ground of appeal, the Appellant contends that the

11 Trial Chamber erred in law and in fact and abused its discretion in

12 finding that in the absence of exceptional circumstances, the prior good

13 character of a person does not as such count in mitigation. The Appeals

14 Chamber notes that while it is correct to say that good character has been

15 recognised as a mitigating circumstance in most cases, this is not

16 constant practice but, instead, varies with the circumstances of each

17 case. Even when personal factors or circumstances, including prior good

18 character have been considered as mitigating circumstances, they have been

19 given little weight in mitigation. The Appellant in the present case has

20 not demonstrated an abuse of discretion, and the Appeals Chamber finds

21 that the Trial Chamber was perfectly entitled not to attach any weight to

22 the Appellant's prior good character as a factor in mitigation.

23 The Appellant's fifth ground of appeal is therefore dismissed.

24 Under the sixth ground of appeal, the Appellant argues that the

25 Trial Chamber erred in law and fact and abused its discretion when it

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1 failed to accept his conduct subsequent to the crime as a mitigating

2 circumstance. He submits that the Sentencing Judgement as discussion of

3 his conduct subsequent to the commission of the crime for which he was

4 convicted fails to mention that he tried to facilitate an attempt to bring

5 an end to hostilities in conjunction with Peter Galbraith, United States

6 ambassador to Croatia, along the lines of the Z-4 peace plan and that he

7 tried to alleviate problems in the prisons by employing professional

8 staff.

9 The Appeals Chamber considers that the Trial Chamber incorrectly

10 interpreted the Plavsic Trial Chamber's assessment of Biljana Plavsic's

11 post-conflict conduct in that it erred in finding that the Appellant's

12 conduct subsequent to the crime of persecution could not be considered in

13 mitigation solely because it did not include the alleviation of the

14 suffering of victims. Further, evidence of the Appellant's conduct

15 subsequent to the commission of the crime relevant to his contribution to

16 the advancement of peace was available to the Trial Chamber. The Appeals

17 Chamber is satisfied that the Appellant attempted to further peace after

18 the commission of the crime of persecution and finds that the Trial

19 Chamber erred in law in categorically refusing to take these attempts to

20 further peace into account as a mitigating factor on the basis that they

21 did not directly alleviate the suffering of victims. Nevertheless, in the

22 opinion of the Appeals Chamber such an error does not automatically lead

23 to a reduction of sentence. And in light of the gravity of the crime for

24 which the Appellant was convicted and the circumstances of the case, the

25 Appeals Chamber finds by majority that significant weight did not be given

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1 to the Appellant's attempts to further peace.

2 With regard to the Appellant's argument that the Trial Chamber

3 should have taken into account that during the period covered by the

4 Indictment, he attempted to alleviate problems within the prisons by

5 appointing professional prison staff the Appeals Chamber notes that, as

6 acknowledged by the Appellant at the appeal hearing, this argument was

7 raised for the first time on appeal. The Trial Chamber did not therefore

8 commit an error in not considering this factor in its assessment of the

9 mitigating factors. There is no evidence on the basis for which the

10 Appeals Chamber can consider this submission. In addition, the Appeals

11 Chamber recalls that an Appellant cannot expect the Appeals Chamber to

12 consider on appeal evidence of mitigating circumstances which was

13 available but not introduced in the first instance.

14 Under the tenth ground of appeal, the Appellant alleges that the

15 Trial Chamber erred in law and in fact and abused its discretion by

16 failing to afford the appropriate weight to the totality of those

17 mitigating circumstances which it found did exist, namely his admission of

18 guilt, his substantial cooperation, his expression of remorse, his

19 voluntary surrender and his personal and family circumstances. The

20 Appeals Chamber did not address the issue raised by the Appellant as to

21 whether taken in amalgamation, the mitigating factors referred to by the

22 Appellant were properly weighed by the Trial Chamber as an Appellant can

23 only succeed in challenging a Trial Chamber's decision regarding the

24 weight afforded to a mitigating circumstance by demonstrating that the

25 Trial Chamber committed a discernible error concerning a specific factor.

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1 Rather, the Appeals Chamber addressed the alleged errors with

2 regard to each of these mitigating circumstances in turn and found that

3 the Appellant did not show that the Trial Chamber committed a discernible

4 error in the exercise of its discretion in considering the mitigating

5 circumstances in question.

6 Under the seventh ground of appeal, the Appellant submits that the

7 Trial Chamber erred in law and in fact and abused its discretion in

8 finding that he held a leadership position in the joint criminal

9 enterprise and in considering that as an aggravating factor thereby

10 imposing a more severe sentence. The Appeals Chamber considers that

11 contrary to what the Appellant argues, the Trial Chamber did not hold that

12 his position of leadership in the joint criminal enterprise was an

13 aggravating factor as such, but, rather, found that, and I quote: "The

14 fact that Babic held and remained in high political positions counts as an

15 aggravating circumstance."

16 The Trial Chamber thoroughly considered the Appellant's behaviour

17 as a regional political leader and stressed that it considered his

18 leadership position as an aggravating circumstance because he used his

19 authority to enlist the resources of the Serbian Autonomous District

20 Krajina to further the joint criminal enterprise, made inflammatory

21 speeches during public events and in the media which prepared the ground

22 for the Serb population to accept that their goals could be achieved

23 through acts of persecution and amplified the consequences of the campaign

24 of persecutions by allowing it to continue.

25 The Trial Chamber did not consider the Appellant's position of

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1 authority alone. It considered that position coupled with the manner in

2 which his authority was exercised.

3 The Appellant's seventh ground of appeal is dismissed.

4 Under the eighth ground of appeal, the Appellant claimed in his

5 Notice of Appeal that the Trial Chamber erred in law and in fact and

6 abused its discretion in that it grossly misconstrued the scope of his

7 role and the participation in the joint criminal enterprise.

8 Nevertheless, in his Appellant's brief he merely reiterated the arguments

9 he presented under his third and seventh grounds of appeal. The only

10 distinct argument which the Appeals Chamber addresses for purposes of

11 clarification is the existence of a purported "policy" in this

12 International Tribunal which would render a plea agreement meaningless in

13 that it would enable Trial Chambers, amongst other things, to disregard

14 the sentencing recommendation made by the Prosecution without giving any

15 reason for departure from it and to disregard the facts as presented in a

16 factual statement without providing any reasoning as to why such facts are

17 rejected.

18 The notion that such an alleged policy exists in this

19 International Tribunal is unfounded and the Appellant does not

20 substantiate any of its alleged elements. In cases of guilty pleas, Trial

21 Chambers must, pursuant to Rule 62 bis (iv) determine whether "there is a

22 sufficient factual basis for the crime and the accused's participation in

23 it, either on the basis of independent indicia or on lack of any material

24 disagreement between the parties about the facts of the case."

25 In the case of a plea agreement, a Trial Chamber enters its

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1 finding of guilt on the basis of the facts agreed by the parties, as set

2 out in the Indictment and in the statement of facts. It cannot therefore

3 be said that the Trial Chamber can at the sentencing stage simply

4 disregard those facts which are the basis of the finding of guilt it

5 enters. Furthermore, although it Trial Chamber does not have the

6 discretionary power to impose a sentence higher than the sentence

7 recommended by the parties pursuant to Rule 62 ter (B) of the Rules which

8 expressly states that Trial Chambers shall not be bound by any agreement

9 between the parties, it also has a duty to take into account the specific

10 context of a plea agreement in which the accused admits his guilt and to

11 give due consideration to the recommendation of the parties.

12 A Trial Chamber cannot simply, as alleged by the Appellant, ignore

13 such recommendation and depart from it without providing reasons for such

14 departure. In the present case, however, due consideration was given to

15 the Appellant's admission of guilt and as the Appeals Chamber has already

16 found, when assessing the second ground of appeal, the Trial Chamber did

17 not ignore the facts contained in the factual statement and did not fail

18 to give a reasoned opinion for its departure from the recommendation of

19 the parties as to sentence. Therefore, the Appellant's arguments

20 pertaining to this alleged policy issue are unfounded, and the Appellant's

21 eighth ground of appeal is dismissed.

22 Under the ninth ground of appeal, the Appellant argues that the

23 Trial Chamber erred in law and in fact and abused its discretion by basing

24 its decision upon events and facts which occurred and arose outside of the

25 temporal scope covered by count 1 of the Indictment. He contends that the

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1 Trial Chamber misconstrued his role as being responsible for persecutions

2 on one-third of Croatia's territory. The Appeals Chamber finds that the

3 temporal scope of the crime and the objective of the joint criminal

4 enterprise were properly referred to by the Trial Chamber and that the

5 Appellant's arguments are based on a misunderstanding of the Trial

6 Chamber's findings. The Trial Chamber never implied as the Appellant

7 submits that the territory of the Serbian Autonomous District Krajina

8 covered one-third of the Republic of Croatia. The Appeals Chamber

9 therefore finds that the Appellant's arguments in this respect are without

10 merit, and the Appellant's ninth ground of appeal is dismissed.

11 Under the eleventh ground of appeal, the Appellant mainly contends

12 that the Trial Chamber improperly based his sentence in part on the

13 conclusion that he did not recognise at all times the significance of his

14 role with respect to the armed conflict in Krajina in 1991 and 1992. He

15 argues that the Trial Chamber erred in law and in fact and abused its

16 discretion in imposing an impermissible and undefined burden of proof upon

17 him to, "Convince it that he had at all times recognised the full

18 significance of the role he played in Croatia in that period."

19 The Appeals Chamber does not find that the Trial Chamber imposed

20 an impermissible and undefined burden of proof upon the Appellant, nor

21 that it erred in considering a failure to convince the Trial Chamber as a

22 reason in imposing sentence. Had the Trial Chamber intended to make a

23 finding to the effect that the Appellant did not fully recognise that he

24 was indeed a co-perpetrator in the joint criminal enterprise charged, it

25 would not have been able to accept the guilty plea pursuant to Rule 62 bis

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1 of the Rules. In the Appeals Chamber's view, the statement in question is

2 related to the parties' submissions concerning the fact that due to the

3 secondary nature of the Appellant's role in the joint criminal enterprise,

4 his participation in the crime was limited. Under the present ground of

5 appeal, the Appellant in fact incorporates by reference the arguments he

6 already put forward concerning the proposition that his role was more

7 limited than the Trial Chamber found it to be. As the Appeals Chamber

8 already found that the Appellant did not demonstrate a discernible error

9 by the Trial Chamber in its assessment of his limited participation in the

10 crime to which he pled guilty, there is no need to expound further on this

11 aspect of the present ground of appeal. The Appellant does not put

12 forward any new argument for the consideration of the Appeals Chamber.

13 The Appellant's eleventh ground of appeal is dismissed.

14 I shall now read the operative part of the Appeals Chamber's

15 judgement. And I ask, Mr. Babic, will you please stand.

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

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

18 respective written submissions of the parties and the oral arguments they

19 presented at the hearing on 25th April 2005, sitting in open session:

20 Allows unanimously, in part, the Appellant's sixth ground of

21 appeal in that it finds that: (1), the Trial Chamber erred in finding

22 that the Appellant's conduct subsequent to the crime of persecution could

23 not be considered in mitigation solely because it did not include the

24 alleviation of the suffering of victims; and, (2), the Trial Chamber

25 committed an error of law in not taking into account the Appellant's

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1 attempts to further peace as a mitigating circumstance. Nevertheless, the

2 Appeals Chamber finds by majority, Judge Mumba dissenting, that on balance

3 this error does not have an impact upon the sentence.

4 Dismisses unanimously each of the remaining grounds of appeal

5 filed by the Appellant:

6 Affirms by majority, Judge Mumba dissenting, the sentence of 13

7 years' imprisonment as imposed by the Trial Chamber.

8 Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,

9 that the Appellant is to remain in the custody of the International

10 Tribunal pending the finalisation of arrangements for his transfer to the

11 state where his sentence will be served.

12 Mr. Registrar, would you please deliver copies of the judgement to

13 the parties.

14 Mr. Babic, will you please sit.

15 I'm sure there will be extra copies once the printing is over.

16 Having concluded the issuing of the Judgement, the Appeals Chamber

17 will stand adjourned.

18 --- Whereupon the hearing adjourned at 2.49 p.m.