Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11

1 Monday, 29 November 2004

2 [Sentencing Proceedings on Appeal]

3 [Open session]

4 --- Upon commencing at 9.02 a.m.

5 JUDGE MERON: Please be seated.

6 [The Appellant entered court]

7 JUDGE MERON: The court will come to order. I'd like to say good

8 morning to the interpreters, to make sure they are in place.

9 THE INTERPRETER: Yes, Your Honour, good morning.

10 JUDGE MERON: And to the Defence counsel. Good morning to the

11 accused.

12 First, may I ask you, Mr. Registrar, to call the case, please.

13 THE REGISTRAR: Good morning, Your Honours. Case number

14 IT-94-2-A, the Prosecutor versus Dragan Nikolic.

15 JUDGE MERON: Thank you, Mr. Registrar.

16 Sorry?

17 JUDGE WEINBERG DE ROCA: I don't have ...

18 JUDGE MERON: You don't have sound?

19 JUDGE WEINBERG DE ROCA: Nor translation.

20 JUDGE MERON: Of course.

21 Judge Weinberg de Roca, are you okay?

22 We will proceed. I would now ask for the appearances of the

23 parties.

24 For the Defence?

25 MR. MORRISON: Good morning, Your Honours. Howard Morrison and

Page 12

1 Tanja Radosavljevic for the Appellant, Dragan Nikolic.

2 JUDGE MERON: Thank you, Mr. Morrison.

3 For the Prosecution?

4 MR. McKEON: Yes, good morning, Your Honours. Senior appeals

5 counsel Mark McKeon for the Prosecution. I am joined and will be joined

6 on the argument by Appeals counsel Susan Lamb and Steffen Wirth, and we're

7 also joined at our counsel table by our case manager, Lourdes Galicia.

8 Thank you.

9 JUDGE MERON: Thank you, Mr. McKeon.

10 I would now like to explain how we're going to proceed during this

11 hearing. As the registrar announced, the case on our agenda is Prosecutor

12 versus Dragan Nikolic. This is an appeal from the sentencing judgement

13 rendered by the Trial Chamber on 18 December 2003.

14 At the plea hearing held on 4 September 2003, Mr. Nikolic pleaded

15 guilty to counts arising out of events that took place in the Susica camp

16 near Vlasenica, in eastern Bosnia-Herzegovina. Based on the confidential

17 joint plea agreement submission filed by the parties, the Trial Chamber

18 entered a single conviction against Mr. Nikolic for count 1 of the

19 indictment, persecution as a crime against humanity. That conviction

20 incorporated count 2, murder as a crime against humanity; count 3, rape as

21 a crime against humanity; and count 4, torture as a crime against

22 humanity.

23 The Chamber sentenced Mr. Nikolic to 23 years' imprisonment.

24 Are you all right, Judge Pocar?

25 JUDGE POCAR: I'm all right.

Page 13

1 JUDGE MERON: Mr. Nikolic has appealed. This morning we will hear

2 arguments from both parties, but before giving the floor to counsel, I

3 will summarise briefly the grounds of the Defence appeal stated in their

4 written submissions.

5 Mr. Nikolic states seven grounds of appeal.

6 The first is that the Trial Chamber set an excessively high

7 starting point for imprisonment, and that his sentence was not

8 commensurate with sentences rendered by the International Tribunal in

9 similar cases.

10 The second ground of appeal is that the Trial Chamber erred in its

11 assessment of the aggravating factors. He specifically challenges three

12 of the Trial Chamber's aggravated facts or findings.

13 In his third ground of appeal, Mr. Nikolic argues that the Trial

14 Chamber gave insufficient weight to certain mitigating factors, including

15 his guilty plea, remorse, and cooperation with the Prosecution. He also

16 contends that the Trial Chamber erred in stating that individual

17 deterrence has no relevance in this case.

18 The fourth ground of appeal is that the Trial Chamber failed to

19 take into account, or gave insufficient consideration to, the general

20 practice regarding prison sentences in the courts of the former

21 Yugoslavia.

22 Fifth, Mr. Nikolic argues that the Trial Chamber erred in

23 declining to apply the principle of lex mitior, which holds that in the

24 event of change in the law applicable to a given case prior to a final

25 judgement, the law more favourable to the person being investigated,

Page 14

1 prosecuted or convicted shall be applied.

2 In the sixth ground of appeal, the Defence asserts that the Trial

3 Chamber did not afford sufficient regard to the parties' mutual

4 recommendation as to the sentence, and that it erroneously took into

5 account the time he would actually serve in prison.

6 Finally, the seventh ground of appeal is that the Trial Chamber

7 referred to matters outside the scope of the indictment and the parties'

8 stipulations.

9 I would now like to remind the parties about the standard of

10 review applicable to sentencing appeals.

11 The relevant provisions on sentencings are Articles 23 and 24 of

12 the Statute, and the Rules 100 to 106 of the Rules of Procedure and

13 Evidence. Under Article 25 of the Statute, an appeal is not a trial de

14 novo. The role of the Appeals Chamber is limited to correcting errors of

15 law invalidating a decision and errors of fact that have occasioned a

16 miscarriage of justice. Trial Chambers are vested with broad discretion

17 to tailor the penalties to fit the individual circumstances of the accused

18 and the gravity of the crime. In general, the Appeals Chamber will not

19 revise the sentence unless the Trial Chamber has committed a discernible

20 error in exercising its discretion. A Trial Chamber's decision may only

21 be disturbed on appeal if the Appellant shows that the Trial Chamber erred

22 in the weighing process, either by taking into account what it ought not

23 to have considered or by failing to take into account what it ought to

24 have considered.

25 Before we proceed, I would also ask the parties to be precise and

Page 15

1 clear in their presentation of the grounds of appeal and their responses

2 and replies.

3 Consistent with our Scheduling Order, the Appellant shall have up

4 to 30 minutes to make his oral submission, the Prosecution shall have up

5 to 30 minutes in response to the Appellant's submission, and the Appellant

6 shall have up to 10 minutes to reply to the Prosecution's response.

7 We will now proceed by hearing first from counsel for Mr. Nikolic.

8 Mr. Morrison.

9 MR. MORRISON: I'm much obliged. Your Honours, I'm well aware of

10 the stipulations upon not referring in extenso to the matters that are

11 already before you on paper, and I have no intention of doing so. But I

12 must deviate very slightly from that, to begin with, by adding to the list

13 of authorities one case for Your Honours' consideration concerning

14 commensurateness of sentence. And that's the case of Banovic, which has

15 the reference number IT-02-65/1-S, which was determined before Their

16 Honours, Their Excellencies Judges May and Robinson and Kwan in October of

17 1993. And I deal with it very shortly because of the time available to

18 me.

19 Mr. Banovic pleaded guilty to, in effect, five murders and 27

20 counts of grievous bodily harm occasioned during his duties at the

21 Keraterm camp, a camp described in the sentencing judge as brutal,

22 inhumane, and degrading, and of the offences committed by Mr. Banovic

23 being of the utmost gravity. They also mentioned in the sentencing

24 judgement that the relevant significance of the role of the accused was

25 not ultimately decisive the determination of sentence, and at

Page 16

1 paragraph 49, said that: "The status of the victims of civilians did not

2 necessarily aggravate the offence since the crime of persecution, under

3 Article 5 of the Statute, included the civilian character of the victims

4 as an indispensable legal ingredient."

5 They found as mitigating features substantial cooperation, a

6 guilty plea, genuine remorse, and the fact that the indictee in that case

7 had no previous criminal comment. I pause to make the observation that

8 those fall squarely with the findings and observations in respect of this

9 Appellant.

10 There was a plea recommendation of eight years; there was a

11 sentence of eight years passed in that case. And I note as a matter of

12 perhaps mathematical irony rather than anything else, that the difference

13 between the plea agreement in the current appeal of 15 years and the

14 sentence passed of 23 is eight years, exactly the same sentence that

15 Mr. Banovic got for five murders and 27 counts of grievous bodily harm,

16 one of which was occasioned by shooting somebody in an unfatal way.

17 And I respectfully ask that consideration of that case go into the

18 point of excessively high starting point and the commensurate nature of

19 other sentences.

20 There are several points which may have not been adequately dealt

21 with. One I want to deal with straight away, and that's this: And that's

22 the question of the timing of the plea in this case. There were legal

23 issues in this matter that had to be dealt with. There was a question of

24 law raised as to male captus. Mr. Nikolic was effectively kidnapped from

25 Serbia and brought into Bosnia, where he was handed over to SFOR.

Page 17

1 It has been determined that there was nothing unlawful in that by

2 both the Trial Chamber and subsequently the Appeals Chamber. But all that

3 took 18 months to do. The initial finding by the Appeals Chamber took

4 from October of 2001 to October of 2002, the initial determination of the

5 motion by the Defence. It wasn't until June of 2003 that all of the legal

6 issues that, in our respectful submission, were necessary to be determined

7 and aired in this case had, in fact, gone through both the first instance

8 and Appellant procedures.

9 So by June 2003, the legal issues had been dealt with. There has,

10 as Your Honours know, also been considerable variation and negotiations as

11 to the nature and scope of the indictment. This is an indictment which

12 started with 80 counts and ended up with eight as a result of a

13 considerable degree of cooperation between the parties.

14 In June of 2003, the negotiations between the Appellant and the

15 Office of the Prosecutor began. It was not until September of 2003 that

16 those negotiations, which were closely -- not contested but closely

17 negotiated, came to fruition, and that there was an agreement between the

18 parties for the 15 years. That was a position that was taken, and I can

19 say and it's apparent from -- and it must be apparent from the notes of

20 any minutes held by the OTP, that was the position taken by the Appellant

21 from June of 2003. But it took four months before eventually the Office

22 of the Prosecutor determined, through their own observations and analysis

23 of the case, that that was an appropriate recommendation.

24 As soon as that had been done, the then Trial Chamber was

25 appraised of the situation and a guilty plea was entered at the first

Page 18

1 available opportunity afterwards. So although there was a delay in the

2 plea from the arrest of this Appellant until the date the plea was

3 entered, none of it, with great respect, falls upon his shoulders as

4 culpability. Matters of law had to be aired; he had to be advised as to

5 the matters of law. If there is any fault, then it falls squarely upon my

6 shoulders, as his legal advisor, in telling him that before there was any

7 question of plea, there were areas of law which simply had to be explored

8 which might otherwise have vitiated his guilt in any event.

9 But there we have it. That was a position aired before the Office

10 of the Prosecutor. And at a meeting on the 2nd of September of 2003,

11 Michael Johnson, the then head of prosecutions, said in my presence and in

12 front of His Excellency Judge Schomburg the Prosecution accepted that any

13 delay was either occasioned by the question of the necessity of

14 determining legal matters, or the delay inherent in accepting the plea

15 agreement. And we are grateful for that.

16 The position is this, as far as the Appellant is concerned: We,

17 of course, rely upon and adopt all of the matters contained in the appeal

18 brief, and indeed the response to the respondent's appeal brief. And I

19 don't seek to deal with those as a matter of law or fact, because I've

20 been directed not to do so effectively by the Scheduling Order, and it

21 would be repetitious to do so.

22 I'm going to use the remainder of the time that I have in the

23 first half hour really asking a number of rhetorical questions, which I

24 hope will find favour with the Appeal Chamber when considering the issues

25 that overlie every case in this Tribunal, and they are issues of fairness

Page 19

1 and natural justice. Because whatever else happens in a court of law, if

2 at the end of the day everybody leaves the court or the room or the

3 Tribunal thinking to themselves, That was fair, that complied with natural

4 justice, that's what law and courts are all about, then all well and good.

5 But if any reasonable person, including the Prosecution, the Defence, or

6 the Appellant, leaves a courtroom saying to themselves, I am uneasy, I

7 don't think the proceedings were fair, I don't think the rules of natural

8 justice were followed, I don't think in all terms that there has been, as

9 far as I am concerned, the sort of good faith I was expecting. If anybody

10 leaves a courtroom feeling like that, then it is a matter that should, of

11 course, be of concern to all of us. And those are the nature of the

12 rhetorical questions that I ask.

13 When it comes to the response to whatever my learned friend for

14 the Prosecution raises --

15 JUDGE MERON: Could I ask you just kindly to stop for a second.

16 Can you hear me, Judge Shahabuddeen?

17 JUDGE SHAHABUDDEEN: I can hear you, but not through this.

18 JUDGE MERON: Not through that. I see. I am terribly sorry,

19 Mr. Morrison. We will take the lapse of time into account.

20 MR. MORRISON: I'm very grateful.

21 JUDGE SHAHABUDDEEN: May I explain to Mr. Morrison that I have not

22 missed anything you have said because I have been able to read on the

23 monitor what you have been saying.

24 MR. MORRISON: I'm much obliged.

25 JUDGE MERON: Are you okay now, Judge Shahabuddeen?

Page 20

1 Mr. Morrison, you may proceed, and I'm sorry for the interruption.

2 MR. MORRISON: The first rhetorical question that I -- I go back.

3 Once my learned friend has finished and, indeed, his companions, then it

4 may be necessary for me to actually respond, but the Appellant himself, as

5 part of the response, has asked that he be heard. I make it perfectly

6 plain that what he says is not something that's been scripted. I do not

7 know what he is going to say. It's going to come from him. He has not

8 asked me to script it; I have not scripted it. And for the last five

9 minutes or so of the time, I anticipate that that will happen.

10 The rhetorical question that I ask is this: What was this

11 Tribunal set up to do. And if we look at the founding documents and the

12 long title, we see it is a Tribunal, and I quote, "to prosecute persons

13 responsible for serious violations of international humanitarian law." We

14 go back to the original Security Council documentation. It may be that my

15 individual submission would be that the ethos would be better described,

16 rather than to prosecute persons responsible but to try persons accused,

17 because that is, in effect, what is happening.

18 And then we turned -- if that's correct, that the object of the

19 exercise is not simply to prosecute persons but to try persons, what's the

20 most satisfactory way that any court or tribunal can achieve its

21 objective. We submit that it is self-evident that the very best that any

22 system of justice can hope for is that persons who've committed crimes and

23 are culpable admit their guilt. If every person who had been indicted

24 before this tribunal, or the sister tribunal in Arusha, where I have also

25 practiced, were to stand up and say, as this Appellant stood up and said,

Page 21

1 having had the indictment read out in extenso, said, Yes, it's true. I am

2 guilty of those matters. I am sorry for what I did. I can give no

3 explanation for what I did other than badness and madness at that time.

4 But I have come to see that I should plead guilty, I should cooperate with

5 the Tribunal in the future in its work, and I should do my best to

6 reconcile what I have done and indeed the people who've been the victims

7 of what I've done.

8 Now, if every appellant or indictee did that, what a blessing.

9 What a difference it would have made to this Tribunal from the very

10 beginning. What a difference it would have made to the international

11 community, to peace and reconciliation in the former Yugoslavia, and

12 indeed in Rwanda, and how much better we would have advanced the cause of

13 international and natural justice. But not every indictee has done that.

14 They haven't had the moral or physical courage to do it, in some

15 instances; in some instances, no doubt, they are doing it because they are

16 not, in fact, guilty of perhaps any or all of the things for which they

17 are indicted. That may be the case.

18 But look at what this Appellant has done. In the first place, if

19 everyone had done it, the business of this Tribunal, in terms of those

20 arrested, would have long since passed. We wouldn't be looking or

21 worrying about a completion strategy; we'd simply be worrying about

22 arresting some people yet indicted and hopefully getting pleas of guilty

23 from them.

24 In addition to that, many of the victims of crime, especially the

25 relatives of those killed, would be infinitely more at ease with

Page 22

1 themselves both physically and psychologically, and those damaged lives

2 would perhaps see more hope for the future. That would have the knock-on

3 effect of promoting one of the founding principles of this Tribunal, and

4 indeed of the ICTR, which is that of peace and reconciliation; and if that

5 isn't a worthy objective, then what are we all doing here.

6 But this Appellant could only do what was in his power to do, that

7 is, to enter those pleas and enter them in the somber way in which he did.

8 But what effect can that have? What effect might that have, not simply

9 upon his individual offending but upon other people?

10 If other people look and see that someone has entered into a plea

11 recommendation with the Office of the Prosecutor, has then done all they

12 could by entering guilty pleas, by giving substantial cooperation and by

13 having genuine remorse, and that is reflected in a sentence which is

14 commensurate not only with that recommendation but, of course, with other

15 sentences that have been passed, then that, in my respectful submission,

16 is a very powerful tool and incentive for other people to examine their

17 own position, look inward at their own souls and say, Well, he's had the

18 strength to do it and we've seen the result of doing it; shouldn't we do

19 that ourselves? If only one other person did that, it would be a great

20 achievement. If it fell that that became a habit or a consequence in more

21 than one case, then what a blessing that would be for all of us.

22 It's easy, perhaps, for those of us who are not indicted, not

23 standing in the dock, not going to suffer extensive terms of imprisonment

24 to say, Well, if you're guilty, plead guilty. But it actually takes

25 motivation, as we all know, and as Your Honours' know, not only from your

Page 23

1 sitting here, but from your sitting as Judges in other jurisdictions, it

2 takes a lot. It takes courage, it takes backbone, it takes an

3 appreciation of natural justice from the appellant's or the indictee's own

4 perspective.

5 Dragan Nikolic, it is said in the documentation that was before

6 the Trial Chamber from one of the experts, Nancy Grosselfinger, and I

7 paraphrase it as this, is more now as he was before these offences than

8 the man he was during those few mad, evil months that he now regrets.

9 There was, and it's been found, genuine remorse, genuine horror - that is

10 my word - but genuine disbelief in what he did and a genuine desire to put

11 things right. He was lost, as he says to me, but now he was found.

12 He has approached this matter since the determination of all the

13 legal matters with what I submit is uberrima fides, utmost good faith. He

14 has put himself effectively in the hands of the Prosecution and thereafter

15 in the hands of the Court. All he asked for and hopes for is the natural

16 justice and fairness with which I started my observations.

17 I have to say, and I'm sorry in a way that I have to say it, but

18 after we reached the accommodation with the Office of the Prosecutor for

19 15 years and we put in our sentencing brief, we were in receipt of the

20 sentencing brief from the Office of the Prosecutor. That was not a

21 sentencing brief, in my observation and experience, that actually matched

22 the nature of the spirit and agreement which I thought we had gone into

23 the matter, and I was left with a sense of unease and profound

24 disappointment. I do not make those comments with relation to any of the

25 parties who sit across from me now. But I was struck with a sense of

Page 24

1 unfairness.

2 I do not know exactly what effect that sentencing brief had upon

3 the Trial Chamber, because I'm not privy, of course, to their

4 deliberations. But I was left with this sense that somehow we had taken

5 the hand of justice and shaken it and come away slightly cheated, not by

6 the Trial Chamber but by the system. I make no observations in respect to

7 the learned Judges. It would be wrong; it to be impertinent to do so. I

8 don't. But I can't resist that feeling, because it was a genuine feeling

9 that permeated through me and, I know, permeated through the accused.

10 That's one of the reasons, of course, why anybody appeals. They

11 appeal because of a sense of injustice, and they look for a renewal of the

12 hope of justice. And that's what he's done. That's why we're here today.

13 I urge the sentence of 15 years upon the Appeal Chamber, for all

14 the reasons set out in the Appellant brief, and for this analogy: That

15 the parable of the prodigal son is a powerful parable. A man who returns

16 to the moral fold having departed from it is a man who has to be nurtured,

17 because others look and others follow. And in the business of this

18 Tribunal, that cannot, in my respectful submission, be overestimated.

19 I, on behalf of this Appellant, ask for nothing else than a

20 certainty that, at the end of the day, he has been dealt natural justice.

21 Thank you very much.

22 JUDGE MERON: Thank you, Mr. Morrison, for your argument. I'd

23 like to, if I may, ask you a question. In your written submissions, you

24 asserted that the Trial Chamber failed to set a sentence within a clear

25 and unambiguous pattern of sentencing, and I'm wondering whether, apart

Page 25

1 from your mention today of the Banovic case, you could point to any

2 particular case or cases with similar circumstances to which your case,

3 the case of Mr. Nikolic, is comparable.

4 MR. MORRISON: Well, Your Honour, they are set out in the

5 original -- the Appellant's original brief in support of appeal against

6 sentence. A number of cases are set out. Forgive me, I was -- I hadn't

7 dealt with them because I thought I had been enjoined not to.

8 JUDGE MERON: What would be the case that you would recommend that

9 we particularly focus on?

10 MR. MORRISON: Well, this is a document so well-known to me that

11 I've lost my way around it. Let me just -- if I can refer Your Honours to

12 the original Appellant's brief in support of sentence, the cases that we

13 start to refer to are contained at page 15, really starting at

14 paragraph 32. And we go through a number of cases dealing with the issue,

15 first of all, that life imprisonment was an excessive starting point, and

16 the cases which are dealt with there are principally the cases that have

17 been tried or determined before the Rwanda Tribunal, but not exclusively.

18 And at paragraph 63, for instance, we refer to the case of Stakic; at

19 paragraph 66, Krstic. And then we turn to what is perhaps the question

20 that Your Honour asked more specifically, the sentences after pleas of

21 guilty. They begin at paragraph 4 in the case of the Prosecutor against

22 Momir Nikolic; at paragraph 77, the Prosecutor against Ranko Cesic. That

23 was, in particular, a sentence which we say gives a commensurate sentence.

24 We then go on to the Prosecutor against Deronjic, at paragraph 85, and the

25 Prosecutor against - and forgive my pronunciation - Mrdja, at

Page 26

1 paragraph 94. And that latter case - and I spell it M-r-d-j-a - is one

2 where we say the sentence was particularly commensurate with the sort of

3 offences -- you're never going to find, we submit, any exact parallels.

4 But when considering what is commensurate, it is a question of getting as

5 near as you can. And if you add that to the case of Banovic, we say that

6 those cases which are contained in the Appellant brief supports the

7 Appellant's contention that the sentence that he got went outside and

8 beyond those sentences that are commensurate with what might be called a

9 mean average of the sort of sentences passed for these sort of offences.

10 I can't say that they are exactly the same number of offences, the same

11 number of murders, the same number of detainees. That's a counsel of

12 perfection; it's never going to happen. But there are plainly

13 commensurate sentences, and we all know that in our domestic -- we all

14 know the importance of that from simply the point of view of fairness in

15 our own domestic jurisdictions.

16 JUDGE MERON: Thank you. Just One more question of clarification.

17 When in your brief you speak of the principle of proportionality. What do

18 you exactly mean? Proportionality between sentences of different accused

19 persons or between proportionality between circumstances of the crime and

20 the sentence of a particular accused?

21 MR. MORRISON: Your Honour, I have to say I mean it all.

22 Proportionality is a broadly based concept. Again, I don't pretend it is

23 an exact science. That is, with respect, why we have judges and not

24 computers.

25 JUDGE MERON: Thank you, Mr. Morrison.

Page 27

1 I would like to know whether my distinguished colleagues would

2 like to ask any questions.

3 Judge Shahabuddeen, please?


5 THE INTERPRETER: Microphone, please, Your Honour.

6 JUDGE SHAHABUDDEEN: Mr. Morrison, I have benefited greatly from

7 your discussion this morning. One possible area of clarification might be

8 this: You speak of the principles of natural justice not having been

9 attended to as correctly as they might have been in this case. Now, I

10 know that you have expounded this area in your written submissions, but it

11 would help me, possibly also my colleagues on the Bench, if you would be

12 good enough to summarise as briefly as you can the respects in which this

13 principle was violated by the decision of the Trial Chamber in this case.

14 MR. MORRISON: In short, Your Honour, and I hope this isn't

15 impertinent, I hope I'm not providing ammunition for a dissenting

16 judgement here, because I know that Your Honour has a very particular

17 intellect, and I mean that as a compliment, without being, in any way,

18 sicut ante. And I'm always worried when you ask me a question in a way

19 that I think that my intellect is being dissected under a microscope in a

20 way which perhaps I wouldn't have felt comfortable with had I not been

21 asked questions by you before.

22 What I mean is simply this: If you look at the totality of the

23 case, here is a man who has committed heinous offences. He's admitted to

24 committing heinous offences. He has come before the Tribunal to do what

25 he can to put matters right. He's done all that he can. He can't do more

Page 28

1 than to plead guilty, to cooperate, and to have genuine remorse. Anything

2 else is beyond him.

3 What's the other side of the coin? The other side of the coin is

4 this: That having held out the hand of uberrima fides, of utmost good

5 faith, that the Prosecution respond in like terms. If they say 15 years,

6 they should mean 15 years, not, okay, well, it may go beyond that. That's

7 intellectually suspect and dishonest.

8 The Trial Chamber should look at the picture and say, in effect,

9 Here was a man who was represented throughout by counsel, and whose

10 counsel has duties to perform and, I hope, performed them in a way which

11 is commensurate with utmost good faith. The Prosecution have looked at

12 the whole picture, they have come up with a figure, they have looked into

13 it with utmost good faith. This is not a figure of 15 years which has

14 simply be plucked out of the ether. This is a considered figure on all

15 the jurisprudence of this Tribunal which took three or four months to

16 arrive at, in close negotiation.

17 If one looks at it like that and applies that reasoning as a

18 foundation and starting point, then one is well on the way to natural

19 justice. If one departs, either because one is misled or because one

20 takes into account extraneous factors, and I'm not alleging or suggesting

21 malice, far from it, then the principles of natural justice start get

22 circumvented. And once you go downhill from that level playing field,

23 it's very easy for a form of momentum to develop, and arguments to be

24 adopted that in fact support the contention that one ought to depart from

25 the rules of natural justice.

Page 29

1 I can't put it any higher than that. In a sense, it's an

2 understanding and a feeling that one has when one sees all the facts of

3 the case. You can't necessarily turn to jurisprudence to give you the

4 complete answer; you can't necessarily turn to the facts of the case to

5 give you a complete answer. What one has to do, as I said to the learned

6 president, in the question of proportionality, is to put it all together

7 and see whether at the end of the day there is abiding of unease. If there

8 is an abiding sense of unease, then my submission is that there hasn't

9 been natural justice. If one walks away from the case thinking, Yes, I'm

10 happy with what's happened in this case, and so should everybody else be,

11 even if they're not, then there is a sense of natural justice.

12 It is as much, and I hesitate to use the word, a question of moral

13 philosophy as it is of jurisprudence. I'm sure Your Honour knows what I

14 mean, even if my ability to articulate it is not as it should be.

15 JUDGE SHAHABUDDEEN: You have articulated your position nicely,

16 Mr. Morrison. But am I accurate, giving to you my impression of what you

17 have said, that you are pleading natural justice in a general sense, not

18 referring to the violation of any specific rule of natural justice?

19 What I mean is this: You're not contending, are you, that the

20 Prosecution, in fact, violated its undertaking to recommend 15 years. I

21 say that because of something you said to the effect that the Prosecution

22 could not go beyond the 15 years. Did it, in fact, go beyond the 15

23 years?

24 MR. MORRISON: If one sits quietly and reads the Prosecution's

25 sentencing brief, then my submission is that any lawyer of any experience

Page 30

1 is left with a very distinct impression that the 15 years was mentioned,

2 and then the grounds for going beyond that were set out. I don't put it

3 any higher than that.

4 There is a -- I come from a jurisdiction where there is almost no

5 polarity between the Defence and the Prosecutor. On one day I may be

6 prosecuting a murder; on the next day, I may be defending one. And that's

7 the way it works in my jurisdiction. In the robing room before a case,

8 there is a great deal of cooperation; there is very little animosity,

9 either professional or personal. And so perhaps I am unduly sensitive. I

10 know not.

11 But all I can say is this: It's a bit like the man who's asked to

12 describe an elephant. It's very difficult, but he knows one what he sees

13 one. That's natural justice, as far as I'm concerned. It may be very

14 difficult to describe or to articulate or enumerate what is a breach of

15 natural justice, but you know it when you see it.

16 JUDGE SHAHABUDDEEN: Did Judge Schomburg elicit from the accused,

17 the Appellant in this case, that he appreciated that the plea agreement

18 did not bind the Trial Chamber to impose any sentence of 15 years, but

19 that the Trial Chamber could effectively vary from that recommendation?

20 And did your client say that he understood this?

21 MR. MORRISON: Yes. And there is no doubt about that. And had

22 the learned trial judge not said that, of course there would have been

23 something -- that would have been a flaw in the proceedings, had he not

24 done that. The learned Trial Chamber was meticulous in making that

25 observation, and we all understood it. The fact that the Trial Chamber

Page 31

1 has a discretionary power, however, and articulates the fact that they

2 have that discretionary power is not, of course, a license in itself.

3 JUDGE SHAHABUDDEEN: Mr. Morrison, last question: Should I take

4 it that your references to restoration of, what is it, peace and

5 cooperation -- reconciliation takes into account the observations of the

6 Appeals Chamber in the Erdemovic case; that yes, it is true that this

7 sensible entering into a plea agreement would have the effect of

8 encouraging others to come forward with similar pleas and to shorten the

9 work of the Appeals Chamber.

10 MR. MORRISON: Your Honour, I think that's an inevitable

11 consequence.


13 JUDGE MERON: Thank you, Mr. Morrison. Your arguments this

14 morning really helped us reflect on certain issues, and I'm grateful to

15 you.

16 We will now turn to the Prosecution. After that, you,

17 Mr. Morrison, will have ten minutes, and as you have suggested, and as

18 indeed is our practice, we'll give a few minutes to Mr. Nikolic to make a

19 statement.

20 MR. MORRISON: Much obliged.

21 MR. McKEON: Thank you, Your Honour. We are going to perhaps --

22 JUDGE MERON: 30 minutes.

23 MR. McKEON: 30 minutes. Thank you.

24 The Prosecution is going to approach its argument a bit

25 differently than the Appellant has. We, as the Court reminded us at the

Page 32

1 beginning, this is not a sentencing de novo, but the question is whether

2 there was a discernible error by the trial court in reaching this

3 sentence.

4 I'll pause for a moment, Your Honour.

5 And the question is not whether -- what sentence this Appeal

6 Chamber would have given the Appellant, but whether the Trial Chamber

7 erred in the sentence that it gave. So I won't respond to most of what

8 Mr. Morrison said this morning in some fashion, because, for example, his

9 observations about guilty pleas we largely agree with, and the value of

10 guilty pleas. I would, however, like to respond briefly to two points

11 that he made before we get into the substance of our argument.

12 First of all, Mr. Morrison referred to the timing of the plea, and

13 I would point out to the Appeals Chamber that there was no penalty given

14 to the Appellant because of the so-called lateness of his guilty plea. In

15 fact, in the judgement, in paragraph 234, they specifically recognised

16 that the lateness, and they put that in quotations, of Dragan Nikolic's

17 guilty plea cannot be considered to his detriment. So although the

18 description of the circumstances on how he pled were not challenging, we

19 do challenge that this had any effect whatsoever on the sentence that he

20 was given. The Trial Chamber, in fact, reflected that it did not.

21 Secondly, Your Honour, I would like to just briefly respond to

22 what I see as an unprecedented attack on the Prosecution and our

23 recommendation at trial for sentencing. Our recommendation before the

24 Trial Chamber was quite clear, that we recommended a sentence of 15 years.

25 We repeated that at the end of the hearing. I think a fair reading of the

Page 33

1 Prosecution's sentencing brief is that we were not trying to hide the

2 facts from the Trial Chamber of what Mr. Nikolic did. The Trial Chamber

3 ultimately had to impose sentence, and it needed to be informed of both

4 the good and the bad about Mr. Nikolic. And I think the sentencing brief

5 fairly presents the balance that had to be made between the aggravating

6 factors and the mitigating factors of his cooperation.

7 At the end of the day, we supported the sentence of 15 years, and

8 indeed, as you see from our brief on appeal, we have not backed away from

9 that on appeal, and have asserted that we still believe that a sentence of

10 15 years would have been the most appropriate.

11 The question, however, before the Appeals Chamber now is whether

12 there was an abuse of discretion in reaching a sentence other than 15

13 years. On those points, I will be assisted in the argument by my

14 colleagues. I will turn the microphone over first to Ms. Lamb, who will

15 address the first three grounds of appeal dealing with aggravating and

16 mitigating factors and the allegedly high starting point in sentencing.

17 She will also address the arguments that counsel made on proportionality

18 and the other cases at the Tribunal.

19 Mr. Steffen Wirth will then address the fourth and fifth grounds

20 of appeals dealing with the alleged error in having insufficient regard to

21 the sentencing practices in the former Yugoslavia and lex mitior. If the

22 Court has any questions about those, although those weren't addressed by

23 my colleague, the Court may indeed have questions.

24 And then I will conclude in addressing the last two grounds of

25 appeal dealing with the Trial Chamber's dealing with the sentencing

Page 34

1 recommendation of the parties and what they did with that, and the alleged

2 consideration by the Trial Chamber of factual matters outside the scope of

3 the indictment and the agreed facts.

4 With that, Your Honour, and with the Court's pleasure, I will turn

5 the microphone over to my colleague, Ms. Lamb.

6 JUDGE MERON: Ms. Lamb, please.

7 MS. LAMB: Thank you, Your Honours.

8 As Mr. McKeon has indicated, I will be responding to the

9 Appellant's first, second, and third grounds of appeal. Indeed, as

10 mentioned, the fundamental issue in this appeal is whether in sentencing

11 Dragan Nikolic to a 23-year term of imprisonment to which the crimes he

12 pled guilty, did the Trial Chamber abuse its sentencing discretion or

13 otherwise fall into error.

14 As Mr. McKeon has just outlined, both parties at trial sought a

15 sentence of 15 years. However, the Prosecution acknowledges that the

16 issue on appeal is whether, in deciding instead to sentence the Appellant

17 to 23 years' imprisonment, the Trial Chamber committed a discernible error

18 or failed to follow applicable law. Thus the issue is not one of

19 agreement or not with the sentence, however, and while recognising that

20 the Chamber was not bound by the joint submission of the parties, the

21 Prosecution does submit that the Trial Chamber did not sufficiently

22 elaborate the basis for its departure from this joint recommendation.

23 This failure to give reasons, in the Prosecution's submission, makes it

24 difficult to evaluate whether or not appropriate weight was given by the

25 Trial Chamber to the various factors it considered in mitigation.

Page 35

1 Moreover, the sentence conferred was significantly in excess of

2 that thought to have been warranted by both parties, and it is submitted

3 that the Trial Chamber was in error at least in failing to make the basis

4 for its departure from this joint recommendation more apparent. I

5 reiterate, Your Honour, however, that the Prosecution recognises that the

6 issue on appeal is not one of agreement with the sentence conferred but

7 whether or not the Trial Chamber exceeded its discretionary framework in

8 arriving at that sentence.

9 I will thus turn Your Honours now to address grounds 1 to 3 of

10 this appeal in more detail.

11 Turning to the first ground of appeal, the Prosecution's position

12 is that the Trial Chamber, when alluding to a life sentence in

13 paragraph 214 of the judgement, did not set an excessively high starting

14 point in sentencing. The essence of the Appellant's argument is that a

15 starting point of life imprisonment would somehow have placed the Trial

16 Chamber outside the range of sentences that would have been properly

17 available to a trier of fact confronted with crimes of this magnitude. He

18 further contends that a comparison of the numerical values of sentences

19 received by other accused before this Tribunal is a violation -- reveals a

20 violation of the principle of proportionality.

21 Your Honours, it is the Prosecution's position that the crimes for

22 which the Appellant was sentenced are self-evidently those which a life

23 sentence would have been appropriate. There is nothing in the Statute,

24 the Rules, or the jurisprudence of this Tribunal that expressly lay down a

25 range or scale of sentences applicable to the crimes falling under its

Page 36

1 jurisdiction. While in practice the weightiest sentences meted out by

2 this Tribunal have generally entailed convictions for genocide, there is

3 nothing to suggest that a life sentence would be inappropriate, at least

4 as a starting point for analysis, where serious violations of

5 international humanitarian law, other than genocide, were entailed.

6 The Prosecution submits to the contrary, that a life sentence is

7 appropriate whenever a certain threshold of gravity of the crime is

8 surpassed. Certainly, this threshold is amply reached in the present

9 case, in which the Appellant has admitted responsibility for nine murders

10 and countless other serious violations of international humanitarian law.

11 The Appellant's crimes, despite their magnitude, may well not be the most

12 serious ever heard before this Tribunal, but this, in our submission, does

13 not render a life sentence inappropriate. Indeed, I would submit that the

14 dilemma for this Tribunal is that once a certain threshold of gravity is

15 surpassed, there is arguably no sentence that is capable of adequately

16 encompassing the enormity of the crimes with which we deal.

17 By way of example, a life sentence would self-evidently be

18 demanded where, in perpetrating genocide, an accused liquidated 900

19 persons. But the converse would not follow, and hence the killing of nine

20 victims by way of persecution would not compel a reasonable trier of fact

21 to reject a life sentence as an appropriate starting point when

22 calibrating sentence.

23 Further, the imposition of the maximum sanction within the

24 jurisprudence of this Tribunal is not restricted only to the most serious

25 imaginable conduct. This is given succinct legal expression in

Page 37

1 paragraph 932 of the Stakic Trial Chamber judgement, and it is submitted

2 that there is no compelling reasons for this Chamber to depart from the

3 standard today.

4 I will now turn Your Honours to the issue of the parity principle

5 in sentencing.

6 Although this principle has been recognised in the jurisprudence

7 of this Tribunal, it is submitted, Your Honours, that the issue in this

8 appeal is instead how the principle of parity ought to apply in the

9 instant case. The Appeals Chamber has cautioned that the sentencing

10 practice of the Tribunal with regard to cases involving similar

11 circumstances is merely one factor which a Chamber must consider when

12 exercising discretion in imposing a sentence.

13 Moreover, direct comparison of sentences is frequently unhelpful,

14 as ultimately the particular circumstances of each case are unique, and

15 every sentence rendered by this Tribunal is calibrated with the particular

16 case in mind. This, in my submission, is borne out by the example cited

17 by the Appellant which, even if containing similarities to the case of the

18 Appellant, are nevertheless not identical.

19 For example, he has cited the case of Momir Nikolic. In that

20 case, however, the Prosecution requested a sentencing range of 15 to 20

21 years of imprisonment, which was then ignored by the Trial Chamber which,

22 instead, imposed a sentence of 27 years. He further cites the case of

23 Banovic, who received a sentence of eight years' imprisonment upon a

24 recommendation of the same by the Trial Chamber. Undoubtedly, the facts

25 of the Banovic case and the instant ones bear a superficial similarity,

Page 38

1 save, perhaps, for some of the obvious features and aggravation with

2 regard to the sadism and gratuitousness of the Appellant's conduct in this

3 case.

4 However, even in this case, Your Honours, one is immediately

5 struck by the Trial Chamber's findings as to the extremely low rank within

6 the hierarchial structure of the camp in question, and the utter lack of

7 influence possessed by Mr. Banovic over detainees. By comparison --

8 THE INTERPRETER: Kindly slow down for the interpreters. Thank

9 you.

10 MS. LAMB: -- the Appellant in this case is a camp commander whose

11 influence was all-encompassing within his particular sphere.

12 Furthermore, the Appellant has not referenced other somewhat

13 similar cases where the accused received sentences of far greater severity

14 than 23 years. In this regard, I would mention merely the case of Goran

15 Jelisic, a further case which bears superficial similarity to the instant

16 case, but where the accused was given instead a sentence of 40 years of

17 imprisonment.

18 So in consequence, therefore, Your Honours, the only conclusion

19 that is perhaps warranted is that the scale of sentences before this

20 Tribunal is broad. This is precisely because each case is considered on

21 its merits and deserves to be considered individually.

22 Further, the Trial Chamber correctly noted that the linchpin in

23 sentencing is, and must always remain, the individual culpability of the

24 accused, and the crimes to which the Appellant plead were extremely

25 serious, for which the only acceptable response was serious censure.

Page 39

1 In summary, therefore, the Prosecution submits that a life

2 sentence is not a manifestly excessive starting point in sentencing where

3 the direct commission of persecution, including multiple murder, is

4 entailed. And further, that when considered against the backdrop of the

5 crimes committed, their context, their circumstances, and their

6 consequence, the Prosecution submits that a 23-year sentence, considered

7 in isolation, is not in and of itself manifestly disproportionate when

8 measured against comparable cases before this Tribunal.

9 THE INTERPRETER: Could counsel please pause.

10 JUDGE MERON: Ms. Lamb, the interpreters would appreciate it if

11 you would go a bit slower.

12 MS. LAMB: Thank you, Your Honours. I will do so, with my

13 apologies to the interpreters.

14 I'll turn now to the second ground of appeal, Your Honours, which

15 concerns alleged errors with regard to treatment given to aggravating

16 factors in this appeal.

17 Your Honours, the Prosecution response is amply set forward in its

18 respondent brief, and I do not wish to add significantly to this response.

19 I wish merely to note that, in finding the Appellant to have enjoyed his

20 offending, the Trial Chamber made factual findings on the basis of the

21 evidence before it. The Trial Chamber correctly acknowledged in

22 paragraph 145 of the judgement that aggravating circumstances must be

23 proved beyond a reasonable doubt. The Trial Chamber had no doubt as to

24 the veracity of the testimony upon which its conclusions which principally

25 based. Your Honours, allegations of error of fact on appeal will not

Page 40

1 result in an independent assessment of evidence or a de novo review of the

2 same, unless that evidence relied upon by the Chamber could not reasonably

3 have been accepted by any rational Tribunal, or where the evaluation of

4 evidence was wholly erroneous.

5 It is submitted that the record in this case demonstrates that the

6 findings made by the Trial Chamber were amply supported by that report.

7 This clearly demonstrates a gratuitous and sadistic quality to the

8 Appellant's acts, and unless the Chamber has any further questions on this

9 issue, I would propose to move on to my next ground of appeal.

10 JUDGE MERON: Judge Weinberg de Roca?

11 JUDGE WEINBERG DE ROCA: Thank you. What I would like to know is

12 how the Prosecution came to the magic figure of 15 if life imprisonment

13 was considered an adequate starting point?

14 MS. LAMB: Your Honour, this is the perfect juncture, perhaps, to

15 move into my final ground of appeal which addresses directly the

16 Prosecution's agreement with the Appellant that the Trial Chamber

17 committed an error in its calculus of the ultimate sentence, given the

18 presence of significant mitigating factors.

19 Essentially, Your Honours, what appears to have occurred is that,

20 from the starting point of life imprisonment, and despite an

21 acknowledgement that significant factors in mitigation would exist in

22 the -- did exist in the instant case, that there is no clear tabulation of

23 the process by which the ultimate sentence was arrived at.

24 Your Honours, in our submission, we contend that the Trial Chamber

25 did correctly identify relevant issues in mitigation. In particular, the

Page 41

1 Trial Chamber gave full regard to the guilty plea, which, for the reasons

2 Mr. McKeon noted, is fully adumbrated in the Trial Chamber judgement.

3 Further, it recognised remorse and the other considerations extensively

4 listed therein.

5 In the Prosecution's submission, where the error was occasioned,

6 Your Honours, was in the issue of the weighing of these factors. The

7 Prosecution, in particular, has acknowledged in paragraph 67 to 68 of

8 the -- of our respondent brief that the Chamber failed to provide an

9 adequately reasoned decision as to why a sentence of 23 years was

10 warranted, despite, in particular, the Appellant's substantial cooperation

11 with the Prosecution.

12 The Prosecution's arriving at the figure of 15 years was expressly

13 predicated upon the substantial cooperation of the Appellant. The dilemma

14 both for the Prosecution now and, I submit, for this Chamber also is that,

15 despite its finding that the cooperation of the Appellant was substantial,

16 the Trial Chamber nevertheless failed to adumbrate why the 15-year

17 sentence would, in spite of the existence of significant mitigating

18 factors, have been inappropriate.

19 Your Honour, the impact of the Trial Chamber's failure to fully

20 consider the parties' joint sentencing submission and to give reasons for

21 its departure from it will be addressed more fully by my colleague

22 Mr. McKeon in response to appeal ground 6.

23 Your Honour, should you have no further questions, this concludes

24 my response to the Appellant's first three grounds of appeal.

25 JUDGE MERON: Thank you.

Page 42

1 Judge Shahabuddeen, you would like a question now, or at the end

2 of the argument?

3 JUDGE SHAHABUDDEEN: At the end of the argument.

4 JUDGE MERON: Because maybe Mr. Wirth will throw some additional

5 light on this.

6 Mr. Wirth?

7 MS. LAMB: Your Honour, if you have no further questions, I will

8 turn the podium over to Mr. Wirth, who will be addressing grounds 4 and 5.

9 If you have no further questions, perhaps I would grant Mr. Wirth

10 the podium and --

11 JUDGE MERON: Since the question of Judge Shahabuddeen would be

12 addressed to you, I would suggest that he ask you now.

13 JUDGE SHAHABUDDEEN: All right. I'm in the hands of Judge Meron.

14 Ms. Lamb, we are all familiar with the principle that reasons have

15 to be given for a judgement. But I also seem to recall something in the

16 jurisprudence which says that an appeal is really from the judgement and

17 not from the reasons given for the judgement. How do you reconcile these

18 two principles? I am really searching for some learning from you.

19 MS. LAMB: Your Honour, indeed. I would submit that the very

20 tension that the Appellant has pointed out, in the Prosecution's

21 submission, perhaps emanates from this very point.

22 On the one hand, the Prosecution fully admits that, upon

23 sentencing, a 15-year sentence was recommended, and that that represented

24 our assessment of the sentence that would have been warranted should

25 substantial cooperation be forthcoming. However, we fully acknowledge

Page 43

1 that, on appeal, the issue is instead whether, in handing down the

2 sentence it did, that constituted a form of manifest error.

3 The difficulty the Prosecution now has is that we find it

4 difficult to point to an express error on the face of the judgement that

5 would suggest a 23-year sentence was, as such, wholly inappropriate. The

6 difficulty, I would submit, that both this Chamber and we are in is in our

7 failure to understand the reasons that the Trial Chamber employed in

8 departing from that sentence. It may well be that those reasons are

9 proper, and that no error is occasioned. We, however, feel very -- have a

10 degree of difficulty in isolating exactly why a 15-year sentence would

11 have been inappropriate, given the facts in this case.

12 JUDGE SHAHABUDDEEN: Should I understand you to mean this: That

13 in the absence of a statement by the Trial Chamber explaining the grounds

14 on which it imposed a 23-year imprisonment sentence, you are submitting to

15 the Appeals Chamber that the only apparent grounds are those which were

16 laid out in entering into the plea agreement?

17 MS. LAMB: Your Honour, I fear that in answering -- this, indeed,

18 is a very live question in this appeal. I do fear, however, that in

19 answering it, I would be eclipsing, to a very large extent, the argument

20 of my colleague which is yet to come.

21 JUDGE SHAHABUDDEEN: I don't wish you to do that.

22 May I ask another question: Mr. Morrison can speak for himself

23 when his turn comes, but what is your understanding of his position on the

24 question of the competence of the Appeals Chamber, or the competence of

25 the Tribunal, to impose a life sentence? Did you understand him to be

Page 44

1 saying that the Tribunal lacks the competence to impose a life sentence,

2 or was it your understanding that he was saying, All right, the Tribunal

3 has that competence but it could not be appropriately exercised in this

4 case?

5 MS. LAMB: Your Honour, to be frank, I am not entirely sure of

6 which -- what basis the Appellant's argument rests. The opening

7 preambular portion of the first ground of appeal does suggest that a

8 starting point of a life sentence would have been per se inappropriate,

9 and our response to, as indicated, that as a matter of law, that

10 submission must surely fail.

11 However, in developing his argument, the argument tends to

12 gravitate more towards the latter of the propositions you have pointed

13 out. And our response would be that as set forth in our brief, firstly;

14 that from that admittedly starting point of sentence, the Trial Chamber

15 fully acknowledged that there were significant factors in mitigation which

16 would warrant a substantial reduction.

17 It is, therefore, in my view, somewhat academic as to whether any

18 form of life sentence was, in fact, every seriously contemplated or

19 imposed, because no such numerical figure was put on such a sentence.

20 Rather, the Trial Chamber proceeded immediately to identifying the

21 sentence of 23 years.


23 JUDGE MERON: Thank you, Ms. Lamb, for your response to Judge

24 Shahabuddeen. We will now proceed to Mr. Wirth.

25 MS. LAMB: Thank you, Your Honour. I will now hand over the

Page 45

1 podium to my colleague, Mr. Wirth, who will address grounds 4 and 5 of the

2 present appeal.

3 JUDGE MERON: And may I draw your attention to the time

4 constraints.

5 MR. WIRTH: Thank you, Your Honour, for that reminder, indeed. I

6 had prepared more fully submissions, but I will limit myself to two

7 points, in view of the time constraints.

8 Both points concern ground D, or ground 4, as it is numbered in

9 our response. The first observation regards to the Appellant's argument

10 that the Trial Chamber was overly influenced by the sentencing law of

11 other states.

12 As you know, Your Honour, the Trial Chamber gained its information

13 about the sentencing practice of other states from the report of the Max

14 Planck Institute in Freiburg, and in that regard, we would like to point

15 out that, despite the fact that the Trial Chamber clearly intended to

16 refer to the sentencing practice of other states, as it was clear from its

17 request for the sentencing report from the Max Planck Institute, the

18 Appellant never objected to that clear intention of the Trial Chamber.

19 Rather, when Professor Sieber presented the Max Planck report in the

20 trial, the Appellant complimented Professor Sieber for such a powerful

21 piece of research. And it is therefore our submission that any argument

22 that the Trial Chamber should not have considered the sentencing practice

23 of other states has been waived by the Appellant during trial.

24 The second issue with regard to ground D that we would like to

25 point out shortly concerns the starting point of the Appellant's argument.

Page 46

1 The Appellant's argument that the Trial Chamber erred in not sufficiently

2 considering the sentencing law of the former Yugoslavia, and his starting

3 point upon which his argument rests, is that in the former Yugoslavia, a

4 maximum sentence of 20 years applies for conduct like his conduct. And it

5 is our submission that this starting point is not appropriate.

6 Your Honours, in paragraph 158 of the trial judgement, the Trial

7 Chamber refers to the current Criminal Code of the Republika Srpska, and

8 under this Code, a single aggravated murder is punished not with a minimum

9 sentence of 20 years but with a minimum sentence of 45 years. And as you

10 know, Your Honours, the Appellant is not only responsible for one

11 aggravated murder but for nine cruel killings, and for acts of torture and

12 rape. We therefore submit that the sentencing range of up to 45 years

13 provided for in the current Republika Srpska Code would certainly apply to

14 conduct like his.

15 However, the Prosecution need not only rely on the current law of

16 Republika Srpska. Also, in the previous codes that were in force on the

17 territory, a -- there was never a maximum sentence of 20 years for

18 aggravated murder. Rather, as we know from the Max Planck Institute

19 report, the Criminal Code in force in Republika Srpska between 2000 and

20 2003 provided for a life sentence, and the old 1997 Code for the Republic

21 of Bosnia-Herzegovina provided for the death penalty. And it is therefore

22 our submission that the competent legislator for the territory of the

23 Republika Srpksa at no time intended that the maximum sentence for

24 aggravated murder should be limited to 20 years.

25 We therefore conclude that the Appellant's argument about the

Page 47

1 Trial Chamber's consideration of Yugoslav sentencing law should not only

2 fail for the reasons that we set out in our response brief but also

3 because its starting point is manifestly inadequate.

4 Your Honours, I will finish my submissions here with a view to the

5 time constraints, and would be happy to take any questions that you may

6 have.

7 JUDGE MERON: I think we'll move on to Mr. McKeon.

8 MR. WIRTH: Thank you. Then I'll sit down.

9 JUDGE MERON: Thank you, Mr. Wirth.

10 MR. WIRTH: Thank you.

11 MR. McKEON: Thank you, Your Honour. I'm conscious of the time,

12 and I'll try to be very brief. But I would like to respond on ground 6 to

13 Judge Shahabuddeen's question.

14 I think the answer, Your Honour, is that the appeal is from the

15 judgement, but the judgement must tell us whether the Trial Chamber

16 properly exercised its discretion. The Trial Chamber, in reaching a

17 number for a sentence, has to weigh mitigating factors and aggravating

18 factors, and the reason for a reasoned opinion is so that this Chamber

19 knows, in reviewing the judgement, whether that was done properly or not.

20 We do not -- the one point that we agree with counsel for the

21 Defence on and for the Appellant is that in the case, the very limited

22 case we have here, where there has been a guilty plea, where, as part of

23 that agreement for the guilty plea, the Prosecution agreed to recommend a

24 sentence, and the Trial Chamber departs significantly from that

25 recommendation, which in this case is by more than 50 per cent, that in

Page 48

1 those cases, it's incumbent upon the Trial Chamber to indicate what it did

2 with that recommendation and why it rejected it. This is based on our

3 submission that, in the case of a guilty plea, it is necessary for the

4 Trial Chamber, although it can reject the recommendation of the parties,

5 it must consider it; that it's an important right that an accused gets, to

6 have the Prosecution make a recommendation, and so that it must also be

7 considered; and that the only way the Appeals Chamber can tell whether or

8 not it has been properly considered is by looking at the judgement, and if

9 adequate reasons are not given, then it cannot determine that.

10 And we agree with the Defence that in this case, this particular

11 case, the judgement doesn't do that. In paragraph 281, where the Trial

12 Chamber gave its reasons for the sentence, it essentially said it must

13 weigh the aggravating factors against the mitigating factors. It then

14 discussed in great detail -- well, in two or three sentences, why the

15 aggravating factors were, in its view, made a sentence of 15 years unjust,

16 but it did not address at all why the mitigating factors didn't outweigh

17 that. And that failure is especially noted by us, because our

18 recommendation was primarily, and the most important factor was the

19 cooperation of the Defendant. In fact, our recommendation was conditioned

20 upon his cooperation. And the Trial Chamber earlier in the opinion said

21 that it could not make an independent determination itself of the extent

22 or value of the cooperation, it was relying on the Prosecution for that in

23 finding that it was substantial. So it relied on the Prosecution to find

24 that it was substantial, but then essentially rejected the Prosecution's

25 evaluation of what that meant in terms of it outweighing the gravity of

Page 49

1 the offence to get to a sentence of 15 years, and didn't give reasons why

2 it did that.

3 Your Honour, briefly, although this reasoned opinion requirement

4 that we urged the Court to have in this area is not found in the Rules, I

5 can't cite to you a Rule that says that this must be the case. I think

6 it's found on the principles that the Rules are based on.

7 First of all, Rule 62 ter gives the Prosecution the right to make

8 a recommendation in sentencing in a guilty plea. Although we make

9 recommendations in other cases, this is the only place where it's

10 specifically stated that the Prosecution can make a recommendation. And I

11 submit that the reason for that is because of the -- of the unique role

12 that our recommendations play in guilty plea cases, where the Defence --

13 the accused is giving up his right to trial, where there is no trier --

14 you have not tried the fact. The Trial Chamber has not tried the facts

15 and learned all the facts. The only people that know the facts completely

16 in a guilty plea situation are the two parties. You don't have a trial to

17 learn that.

18 And third, when there are significant mitigating factors, that the

19 Trial Chamber must essentially rely on the Prosecution for.

20 So in order to protect that right of the accused, the Trial

21 Chamber, we submit, must consider that recommendation, and that the only

22 way to know whether or not they have done that properly is to see what is

23 in the judgement, and they must give the reasons, if they reject it, in

24 order -- so this Court can view whether they've abused their discretion,

25 in hearing that recommendation or in rejecting it.

Page 50

1 I'd also briefly like to address the last grounds of appeal, and

2 again I'm conscious of the time and I'll keep my remarks brief. This was

3 the claimed failure of the Trial Chamber to adequately -- to -- the error

4 in considering factual matters outside the indictment and outside the

5 factual basis, the alleged error.

6 I think this can be considered to be two arguments, and I'm not

7 sure which counsel is making. The first argument is that perhaps the

8 accused or the Appellant was convicted of acts that weren't within the

9 indictment, crimes that he didn't plead guilty to, and therefore they

10 shouldn't have considered evidence of crimes that he didn't plead guilty

11 to.

12 I think the short answer to that is taken by looking at count 1,

13 paragraph 6 of the indictment, which is the persecution count. It

14 describes in great detail that Dragan Nikolic pled guilty to persecution

15 at the Susica camp from early June 1992 until September 1992, and as part

16 of that he participated in creating and maintaining an atmosphere of

17 terror and inhumane conditions. So all of this evidence went to

18 explaining to the Trial Chamber in more detail what it was he had pled

19 guilty to, and those allegations are squarely within the indictment.

20 The second argument he might be making, because in this case the

21 factual basis is the indictment, there was no separate factual basis, is

22 that the Prosecution should not have been putting on evidence before the

23 Trial Chamber that went beyond the factual basis in explaining the acts

24 that he did that he was guilty of. I don't know if this is the argument,

25 but if it is, I think the answer to that is found in Rules 100 and 101,

Page 51

1 which specifically permit the Prosecution to put on evidence in the case

2 of a guilty plea to explain the sentencing factors, to explain the factors

3 that the Court must consider in exercise its discretion.

4 And I would also note that it did not -- it should not have come

5 to a surprise to the Appellant that we did this, because paragraph V(ii)

6 of the plea agreement specifically permits both parties to submit relevant

7 evidence that will help the Trial Chamber determine an appropriate

8 sentence pursuant to Rule 100. So it's specifically spelled out in the

9 plea agreement that we were going to put on this evidence. It was not

10 improper for the Trial Chamber to consider it. Indeed, it was incumbent

11 upon the Trial Chamber to consider this evidence so that it had a full

12 view of the nature of the Appellant's crimes and what he did, which is

13 the -- one of the key factors that it must consider in sentencing.

14 With that, Your Honour, I would like to open myself to any

15 questions that you may have.

16 JUDGE MERON: Could you please come back to the question of the

17 guilty pleas more particularly. What do you believe should be the impact

18 of a guilty plea on setting the appropriate sentence? We heard arguments

19 of Mr. Morrison on that, pointing out, inter alia, that it's an advantage

20 in avoiding long trials and so on, speeding up the day in court, the

21 arrival of the day in court of the next person, and so on. But more

22 specifically on setting the sentence.

23 MR. McKEON: Yes, Your Honour. I don't think there's any

24 disagreement by the parties that the Trial Chamber has the discretion to

25 go beyond the plea agreement. That is -- that was, in fact, put into the

Page 52

1 plea agreement itself, that statement. The Rules of Procedure say this,

2 and as we heard, the Appellant was reminded of the fact that he entered

3 his sentence. However, a Trial Chamber does not have a full view of the

4 facts as it would after a trial, and the parties are in a unique position

5 to evaluate those facts because they know more about the case, in the case

6 of a guilty plea, than does the Trial Chamber.

7 So I think the recommendation of the parties, although it does not

8 bind the Trial Chamber, should be given strong consideration.

9 In this case, I think, Your Honours, this principle is even more

10 apparent because it was a joint recommendation of the parties. So what

11 you have is, not only did the Appellant give up his right to a trial, he

12 also gave up his right to ask for a sentence of less than 15 years. And

13 what you had is you have parties looking at the evidence from both sides

14 and independently coming to the determination, from diametrically opposed

15 viewpoints, that a 15-year sentence was the appropriate one in that case.

16 That is why we submit that it is important for the Trial Chamber to give

17 that recommendation strong consideration, although it's clear in the

18 Rules, and I don't think the parties disagree that the Trial Chamber is,

19 at the end of the day, not bound to follow that recommendation.

20 JUDGE MERON: And would you suggest that the Trial Chamber did not

21 give this recommendation all the consideration that it was due?

22 MR. McKEON: Your Honour, our submission is that we cannot tell

23 from the judgement whether it did that. We're not prepared to say that

24 the sentence of 23 years given in this case was ultimately an abuse of

25 discretion. Our argument, however, is that based on a description that

Page 53

1 was given of how that decision was reached, it's unclear in the judgement

2 what exactly the Trial Chamber did with the recommendation of 15 years,

3 and whether it gave it adequate weight.

4 So our submission is that the error in the trial judgement is

5 really -- I suppose it's in the nature of a failure to give a reasoned

6 opinion, that the Trial Chamber did not adequately explain the exercise of

7 its discretion. But we're not prepared to say, because we don't have

8 that, that in fact the sentence was an abuse of discretion.

9 JUDGE MERON: You're not prepared to say that this was an abuse of

10 discretion?

11 MR. McKEON: Yes, Your Honour, that the sentence of 23 years was

12 an abuse of discretion. The error that we do not disagree with counsel on

13 is that there should have been a more full discussion in the judgement on

14 how it reached that sentence. It may well have been an abuse of

15 discretion, but we can't tell from the judgement.

16 JUDGE MERON: Thank you.

17 Would any of my distinguished colleagues -- Judge Shahabuddeen?

18 JUDGE SHAHABUDDEEN: Mr. McKeon, I caution that no interpretation

19 should be made of any interventions by any member of the Bench. I think

20 we will all accept that.

21 Are you supporting the general thrust of the case put forward by

22 the Appellant that the sentence in this case should be 15 years and

23 not 23?

24 MR. McKEON: Your Honour, when the Prosecution weighed the

25 evidence ourselves and looked at the aggravating factors weighed against

Page 54

1 the mitigating factors, our conclusion was, and still is, that a sentence

2 of 15 years is the most appropriate sentence. However, and I hate to add

3 a "however," the judge -- as this Court has pointed out, your role is not

4 to determine de novo what the appropriate sentence is but whether there

5 was an error in the Trial Chamber. And that's also the difficulty we're

6 in here.

7 JUDGE SHAHABUDDEEN: Last question: Am I then right in

8 understanding you to mean that Mr. Morrison was not quite correct in

9 asserting, if I may use the word, that the Prosecution effectively or

10 practically backtracked or resiled in the remainder of its written

11 submissions from its initial recommendation that the sentence should be 15

12 years?

13 MR. McKEON: I agree with Your Honour, yes.


15 JUDGE MERON: I see no questions, so I will turn -- thank you very

16 much, Mr. McKeon.

17 I will turn to Mr. Morrison for a 10-minute response.

18 MR. MORRISON: Your Honour, dealing with just a few matters raised

19 by my -- first of all, my learned colleague, Ms. Lamb.

20 She mentioned the case of Jelisic. Apart from the guilty plea in

21 that case, there were no mitigating features. In particular, there was no

22 cooperation, not indeed a hint of it.

23 The second matter is this: That although the Appellant in this

24 case has been referred to as a camp commander, that is, in fact, an

25 accurate description in one sense, it must be remembered that he was not a

Page 55

1 camp commander in the sense that he held superior rank over any other

2 guard in the camp. He didn't. No one has ever suggested that he did. He

3 was, in fact, a guard shift commander, so that on the occasions when he

4 was on duty, he was de facto in command of the camp because he was in

5 command of the guards. And on that basis, the description of a camp

6 commander was accepted. But he didn't hold superior rank to anybody else

7 guarding the camp.

8 The third matter that I raise seems to me to be a rather novel

9 proposition of law, that a compliment passed to a professor in court as to

10 the quality of his research waives the right to make any objection to how

11 that research is used, or indeed the overall effect of that. I shall be

12 very careful the next time I make a compliment, particularly if it's too a

13 young lady, because I won't be quite sure what I have waived and why, and

14 nor shall she.

15 I now would ask that the Court give indulgence to the Appellant in

16 this case to address the Court in the manner which he thinks fit and, I

17 hasten to add, not a manner which has, in any sense, been adumbrated by

18 his counsel.

19 JUDGE MERON: Mr. Nikolic, I will now let you address the Court

20 for five minutes or so. If you need a more than five minutes, I will give

21 you a few minutes more. So you may proceed.

22 THE APPELLANT: [Interpretation] Your Honour, thank you.

23 I wish to take this opportunity to express once again my sincere

24 remorse and regret for everything I have done. I wish to point out that I

25 sincerely have sympathy for the victims, and I wish to apologise once

Page 56

1 again to all those I have hurt directly or indirectly. I wish the truth

2 to be known, regardless of what I have done, and I would plead guilty

3 again because not for a single moment have I doubted the correctness of my

4 decision to do so.

5 Therefore, I wish to call upon others who are responsible for

6 everything that has happened in the terrible war that I witnessed to do

7 the same, because I believe that the only road to the truth and to true

8 reconciliation is for everyone to face the truth. I truly wish there to

9 be a process of real reconciliation, because this is the only way forward,

10 the only way into the future.

11 I wish to remind you that it has been more than 10 years since I

12 was indicted. I wandered here and there on my life's road, but no where

13 did I see any future, except on the road that took me out of this

14 labyrinth, and that was facing the truth, however bitter, however painful.

15 I did this, and I believe that I have found the exit from that terrible

16 maze, and that I have thus made a small contribution to the general

17 reconciliation.

18 I hope that my cooperation with the Tribunal will help the victims

19 and their families. I also hope, as I said before, that one day I will be

20 able to meet these people in person, and I will do everything in my power,

21 however small it may be, to help them re-establish a normal life.

22 In my conversation with a lady whose name I don't recall now, a

23 Ms. Grosselfinger, I expressed my wish to contact those people who are

24 potential witnesses in my case, or to write to them. And therefore I wish

25 to call upon all of those who are still looking for their nearest and

Page 57

1 dearest to contact me through the Tribunal if they fill that I can assist

2 them in this. Let them do so without any fear. I am not asking or

3 expecting that they will love me, but I hope they will contact me. This

4 refers especially to those people whose statements I have had the

5 opportunity to read, and they are quite a number of these, because reading

6 their statements, I realised that many of them do not have real

7 information about their family members who are still missing. I will do

8 everything I can to assist them in finding them, to the best of my ability

9 and as far as I am able to. I would like them not to doubt my sincere

10 intentions.

11 Thank you, Your Honours. That's all I wish to say.

12 JUDGE MERON: Thank you, Mr. Nikolic. You may sit down. Thank

13 you for your statement.

14 And I would like to express my appreciation to the counsel for the

15 Defence, to counsel for the Prosecution, to the interpreters, for their

16 help to the Court in their arguments and statements today. We will now

17 rise.

18 The hearing stands adjourned.

19 MR. MORRISON: Your Honours, just a brief moment.

20 JUDGE MERON: Excuse me. The hearing is not adjourned yet.

21 Mr. Morrison?

22 MR. MORRISON: This is just a personal matter. These last few

23 words are the last words I shall say as an advocate in any court, after 28

24 years of practice, and I just wish to thank this Tribunal, particularly

25 this Appeals Chamber, for their courtesy and erudition in making my last

Page 58

1 appearance professionally a very happy one. I'm extremely grateful.

2 Thank you very much.

3 JUDGE MERON: Thank you very much, Mr. Morrison. I appreciate

4 your comments.

5 The hearing stands adjourned.

6 --- Whereupon the Sentencing Proceedings on Appeal

7 concluded at 10.45 a.m.