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
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.
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
24 For the Defence?
25 MR. MORRISON: Good morning, Your Honours. Howard Morrison and
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
23 The Chamber sentenced Mr. Nikolic to 23 years' imprisonment.
24 Are you all right, Judge Pocar?
25 JUDGE POCAR: I'm all right.
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
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,
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'
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
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
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
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
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.
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
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
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?
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,
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
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
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
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
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
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
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
25 JUDGE MERON: Thank you, Mr. Morrison.
1 I would like to know whether my distinguished colleagues would
2 like to ask any questions.
3 Judge Shahabuddeen, please?
4 JUDGE SHAHABUDDEEN: Mr. Morrison --
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
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.
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
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
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
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
12 JUDGE SHAHABUDDEEN: Thank you.
13 JUDGE MERON: Thank you, Mr. Morrison. Your arguments this
14 morning really helped us reflect on certain issues, and I'm grateful to
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
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
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
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
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
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.
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
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
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,
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
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
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
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.
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
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
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.
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
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
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
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.
22 JUDGE SHAHABUDDEEN: Thank you.
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
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
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.
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
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
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
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
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.
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
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,
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
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
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
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
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
13 MR. McKEON: I agree with Your Honour, yes.
14 JUDGE SHAHABUDDEEN: Thank you.
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
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
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
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
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
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
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
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.