Page 313

1 Tuesday, 26 April 2005

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.30 a.m.

6 JUDGE WEINBERG DE ROCA: Good morning. Good morning to the

7 Prosecution, Defence counsel, the appellant, Mr. Jokic, and all the staff

8 from the Court management support section.

9 First of all, I would like Ms. Krystal Thompson to call the case

10 we are hearing this morning.

11 THE REGISTRAR: Good morning, Your Honours. This is case number

12 IT-01-42/1-A, the Prosecutor versus Miodrag Jokic, appeals hearing.

13 JUDGE WEINBERG DE ROCA: Thank you. Thank you, Ms. Thompson. I

14 would now ask core the appearances for the parties. First for the

15 Defence.

16 MR. NIKOLIC: [Interpretation] Good morning, Your Honours. Good

17 morning, my learned friends. My name is Zarko Nikolic. To my right is

18 Ms. Jelena Nikolic and Mr. Eugene O'Sullivan. Today we appear for the

19 appellant, Miodrag Jokic.

20 JUDGE WEINBERG DE ROCA: Thank you. Now the appearances for the

21 Prosecution.

22 JUDGE GUNEY: Technical problem. It doesn't work.

23 JUDGE WEINBERG DE ROCA: Judge Guney, does it work now?

24 JUDGE GUNEY: No, not yet.

25 JUDGE WEINBERG DE ROCA: Could you share with us the information,

Page 314

1 Ms. Thompson.

2 THE REGISTRAR: Yes, the technician is coming right away.

3 Actually, he's coming into the courtroom right now.



6 JUDGE WEINBERG DE ROCA: Appearances for the Prosecution.

7 MR. FARRELL: Thank you, Your Honour. Good morning, Your

8 Honours. Good morning to my learned friends. Norman Farrell, Ms.

9 Marie-Ursula Kind and Ms. Susan Grogan appearing for the Prosecution.

10 JUDGE WEINBERG DE ROCA: Thank you. Mr. Jokic, can you

11 understand the proceedings?

12 THE APPELLANT: [Interpretation] Your Honours, yes, I can.

13 JUDGE WEINBERG DE ROCA: Thank you. The case on our agenda is

14 Prosecutor versus Miodrag Jokic. This is an appeal from the sentencing

15 judgement rendered by the Trial Chamber on March 18, 2004. At the plea

16 hearing held on August 27, 2003, Mr. Jokic pleaded guilty to counts

17 arising out of events that took place in Croatia where forces of the

18 Yugoslav People's Army under the command of, among others, Miodrag Jokic,

19 shelled the Old Town of Dubrovnik on the 6th of December 1991. This

20 attack was not ordered by Mr. Jokic but he had knowledge of the unlawful

21 shelling and failed to take the necessary steps to prevent, mitigate or

22 stop the attack and to punish the directly responsible or take any

23 disciplinary measures.

24 As a result of the shelling, two civilians were killed and three

25 civilians were wounded. Numerous buildings were destroyed, including

Page 315

1 institutions dedicated to religion, charity, education, the arts and

2 sciences, and historic monuments.

3 Based on a confidential plea agreement, the Trial Chamber entered

4 a conviction under Article 7(1) and 7(3) against Mr. Jokic for six counts

5 of violations of the laws or customs of war pursuant to Article 3 of the

6 Statute, including Count 1, murder; Count 2, cruel treatment; Count 3,

7 the unlawful attack on civilians; Count 4, devastation not justified by

8 military necessity; Count 5, the unlawful attack on civilian objects; and

9 Count 6, the destruction or wilful damage done to institutions dedicated

10 to religion, charity and education, the arts and sciences, historic

11 monuments and works of art and science.

12 The Trial Chamber sentenced Mr. Jokic to seven years of

13 imprisonment on March 18, 2004. Mr. Jokic has appealed his sentence.

14 This morning, we will hear arguments from both parties, but before giving

15 the floor to counsel, I will summarise briefly the grounds of the Defence

16 appeal as stated in the written submissions.

17 When filing his notice of appeal on April 16, 2004, Mr. Jokic

18 initially raised seven grounds of appeal. On June 30, he withdrew ground

19 of appeal number 4. The first ground of appeal is that the Trial Chamber

20 referred to matters outside the scope of the indictment or the agreed

21 facts.

22 The second ground of appeal is that the Trial Chamber erred by

23 having recourse to the provisions of the Criminal Code of the former

24 Socialist Federal Republic of Yugoslavia which would not have been

25 applicable to the range of penalties that courts in the former Yugoslavia

Page 316

1 could have passed for crimes comparable to those for which Mr. Jokic was

2 convicted.

3 In his third ground of appeal, Mr. Jokic argues that the Trial

4 Chamber erred by relying primarily on mitigating factors agreed to by the

5 parties instead of establishing mitigating factors on a balance of

6 probabilities.

7 In his fifth ground of appeal, Mr. Jokic argues that the Trial

8 Chamber erred in its assessment of mitigating circumstances by not

9 considering extraordinary health and family considerations that amount to

10 exceptional circumstances.

11 In his sixth ground of appeal, Mr. Jokic asserts that the Trial

12 Chamber erred by not taking into account the totality of the evidence in

13 relation to his good character and professionalism.

14 Finally, as the seventh ground of appeal, the appellant requests

15 that the Appeals Chamber considers as a mitigating factor his substantial

16 cooperation with the Prosecution after the sentencing judgement was

17 rendered.

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

19 review applicable to sentencing appeals. The relevant provisions on

20 sentencing are Articles 23 and 24 of the Statute and Rules, 100 to 106 of

21 the Rules of Procedure and Evidence. Under Article 25 of the Statute, an

22 appeal is not a trial de novo. The role of the Appeals Chamber is

23 limited to correcting errors of law invalidating a decision and errors of

24 fact that have occasioned a miscarriage of justice.

25 Trial Chambers are vested with broad discretion to tailor the

Page 317

1 penalties to fit individual circumstances of the accused and the gravity

2 of the crime. In general, the Appeals Chamber will not revise a sentence

3 unless the Trial Chamber has committed a discernible error in exercising

4 its discretion. A Trial Chamber's decision may, for example, be

5 disturbed on appeal if the appellant shows that the Trial Chamber erred

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

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

8 have considered.

9 Before we proceed, I will ask the parties to be precise and clear

10 in their presentation of the grounds of appeal and their responses and

11 replies. Consistent with the last scheduling order issued on March 14,

12 counsel for the Defence shall have up to 30 minutes to make its oral

13 submission. The Prosecution shall have up to 30 minutes in response to

14 the appellant's submissions. Counsel for the Defence shall have up to

15 ten minutes to reply to the Prosecution's response, and the appellant

16 will have ten minutes for a personal intervention if he so wishes.

17 If there are no questions at the outset we will proceed by

18 hearing first from counsel for Mr. Jokic.

19 MR. O'SULLIVAN: Good morning, Madam President, good morning

20 honourable members of the Appeals Chamber and good morning to my learned

21 friends from the Prosecution. As you've indicate, Madam President, there

22 are six grounds of appeal that we raise. I will deal with the first,

23 third, fifth, sixth and seventh grounds of appeal. Mr. Nikolic will make

24 submissions on the second ground of appeal. And, Your Honour, with your

25 leave before we adjourn today, Mr. Jokic would like to make a brief

Page 318

1 statement to the Appeals Chamber.

2 I turn to the first ground of appeal. The appellant's first

3 ground of appeal is that the Trial Chamber erred in law in ruling that

4 the appellant is liable for events prior to the 6th of December 1991. We

5 say the Trial Chamber erred in going beyond what is specifically

6 contained in the second amended indictment and the plea agreement between

7 the Prosecution and Mr. Jokic. Those pleadings expressly and

8 unequivocally limit the liability of the appellant for his conduct in

9 relation to the 6th of December 1991.

10 The errors committed by the Trial Chamber in the sentencing

11 judgement consisted in failing to follow applicable law and committed a

12 discernible error, namely: A Trial Chamber cannot go beyond what is

13 contained in a plea agreement with regards to the facts of the case and

14 the legal assessment of those facts. The Trial Chamber misdirected

15 itself as a matter of law in considering alleged events and conduct in

16 October and November 1991 when making its determination in relation to

17 the liability of the appellant. We say this error strongly influenced

18 the analysis and the reasoning of the Trial Chamber in imposing a

19 seven-year sentence on the appellant.

20 It is submitted that a Chamber properly directed would have

21 imposed a less harsh sentence on the appellant. This Chamber is in a

22 position to correct the error committed by the Trial Chamber and to

23 reduce the sentence of the appellant accordingly. Your Honour, there is

24 agreement between the parties that the error committed by the Trial

25 Chamber goes to the heart of the degree of personal guilt possessed by

Page 319

1 the appellant. It is agreed that it must have had an impact upon

2 sentence and that the Appeals Chamber should exercise its discretion and

3 to the extent that the error resulted in an excessive sentence, the

4 sentence should be adjusted accordingly.

5 Furthermore, the appellant respectfully agrees with the analysis

6 and conclusions of the Prosecutor in respect of the effect of the recent

7 judgement of this Chamber in Blaskic, concerning Article 7(1) and Article

8 7(3) of the Statute. I refer specifically to paragraphs 91 and 92 of the

9 Blaskic appeal decision.

10 Your Honours, in our submission, the appellant should be

11 sentenced on the basis of the events that occurred on the 6th of December

12 1991 only. His guilty plea to both Article 7(3) and 7(1), aiding and

13 abetting, was made in relation to identical conduct. Under Blaskic it is

14 open to this Chamber to recharacterise the appellant's conduct and

15 convict him on the most appropriate basis of liability. From the

16 appellant's perspective, he has always considered his failure as a

17 commander under Article 7(3) to properly reflect his liability on the 6th

18 of December 1991.

19 I turn to the third ground of appeal.

20 The appellant's third ground of appeal is that the Trial Chamber

21 erred in law in deciding that in the case of a plea agreement, the Trial

22 Chamber will primarily rely on mitigating factors agreed to by the

23 parties, whether in the plea agreement or at the sentencing hearing. It

24 is submitted that the Trial Chamber erred in that factors in mitigation

25 of sentence must be established on -- by a balance of probabilities by

Page 320

1 the defendant and not by agreement between the parties. According to the

2 plea agreement, the parties had not agreed on an appropriate sentence to

3 impose on the appellant. Mitigating factors go directly to the issue of

4 the determination of sentence. There was no agreement between the

5 parties on mitigating factors, nor did they submit all the same

6 mitigating factors. I wish to highlight the factors that only the

7 appellant presented.

8 Age: Mr. Jokic today is 70 years old. We submitted in addition

9 elements of his conduct prior to, during and after the commission of the

10 offence. We highlighted that on the 5th of December, the day before his

11 criminal act, he had entered into a verbal agreement on a cease-fire with

12 the Croatian foreign minister. On December 6th, the day of the event,

13 Admiral Jokic had sent a radiogram to that minister apologising for the

14 shelling of the Old Town; and the day after on the 7th of December, 1991,

15 the appellant and the Croatian minister finalised a comprehensive

16 cease-fire agreement, resulting in acts that had the effect of changing

17 events and improving the course of events.

18 In addition, at the hearing, we presented to the Trial Chamber

19 evidence of the appellant's activities after his criminal conduct. In

20 1993, he was politically active in Serbia in the opposition, in the new

21 Democracy Party of Serbia. His primary tasks that political party were

22 reform of the Yugoslav armed forces and movement towards implementation

23 into the partnership for peace. We say that the appellant established

24 all these factors in mitigation by a balance of probabilities.

25 If the Chamber had directed itself correctly as a matter of law

Page 321

1 and examined the totality of the mitigating factors advanced by the

2 appellant by a balance of probabilities, then a Chamber properly directed

3 would have evaluated and assessed the mitigating factors pleaded by the

4 appellant in a different light. We say that this error consisted in

5 failing to attach sufficient weight to the totality of the mitigating

6 factors advanced and established by the appellant. He's demonstrated his

7 personal circumstances, his professional resolve, his integrity, and his

8 character. This Chamber is in a position to correct the error committed

9 by the Trial Chamber. You may assess the totality of this mitigating

10 evidence and reduce his sentence accordingly.

11 The fifth ground of appeal.

12 We say that the fifth ground of appeal is that the Trial Chamber

13 erred in law and in fact and abused its discretion in not considering the

14 extraordinary health and family circumstances of the appellant which we

15 say amounts to exceptional circumstances. The evidence is that the

16 family circumstances of the appellant was properly before the Trial

17 Chamber as confidential Annex E of the sentencing brief. This evidence

18 was uncontested by the Prosecution. This evidence had been previously

19 pleaded and accepted by the Trial Chamber in relation to the appellant's

20 request for provisional release following his guilty plea and his

21 continued provisional release following his sentencing hearing.

22 This evidence was described by the Trial Chamber, and I quote,

23 "as constituting extraordinary health and family circumstances amounting

24 to exceptional circumstances."

25 In assessing factors in mitigation, it was erroneous and

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Page 323

1 unreasonable for the Trial Chamber to disregard this evidence or to find

2 that the family circumstances of the appellant were anything other than

3 exceptional. We submit that based on the reasonable-nature criterion, no

4 reasonable person would have accepted the assessment of the Trial Chamber

5 in relation to the evidence concerning the family's circumstances of the

6 appellant. The fact that the Trial Chamber did not properly assess and

7 consider this evidence resulted in a miscarriage of justice. This error

8 strongly influenced the Trial Chamber's assessment of mitigating factors

9 and resulted in an unduly harsh sentence. We ask you to correct this

10 error by reducing the appellant's sentence.

11 The sixth ground of appeal.

12 We say the Trial Chamber erred in law and in fact and abused its

13 discretion in failing to consider the totality of the evidence presented

14 by both the Prosecution and the Defence in relation to the good character

15 and professionalism of the appellant. This evidence was uncontested.

16 Before the Chamber were the following factors: That the appellant in

17 1990 had favoured a peaceful solution to the break-up of the former

18 Yugoslavia. Rear Admiral Pogacnik testified before the Trial Chamber

19 that he and the appellant had voted as the only two members of the JNA at

20 that 14th Congress of the League of Communists, the final congress of the

21 League of Communists had voted for the peaceful resolution of the

22 break-up or the ultimate break-up of Yugoslavia.

23 Other witnesses testified before the Chamber that the appellant

24 had accepted his responsibility as an officer. He did not defend himself

25 or his fellow officers. The evidence is that he is the first former JNA

Page 324

1 officer from Serbia to voluntarily surrender to this Court. This was

2 done prior to the law on cooperation with the Court. He complied fully

3 with his terms of provisional release and all other orders by the Trial

4 Chamber. We say that the Chamber did not give sufficient weight to these

5 factors. His good character and professionalism are mitigating factors

6 which if given the proper weight would have resulted in a lower sentence.

7 This Chamber is in a position to correct that error.

8 The seventh ground of appeal.

9 We request the Trial Chamber to consider the substantial

10 cooperation of the appellant with the Prosecutor, provided after the date

11 of the sentencing judgement. Namely, the appellant testified as a

12 Prosecution witness in the case of the Prosecution versus Strugar, case

13 IT-01-42-T. Under Rule 101, that rule states that mitigating

14 circumstances include substantial cooperation with the Prosecutor by the

15 convicted person before or after conviction. In the Kupreskic case, the

16 Appeals Chamber held that in an appropriate case, the Appeals Chamber may

17 consider post-conviction substantial cooperation with the Prosecutor as a

18 mitigating factor. The Prosecution has acknowledged that the testimony

19 of the appellant in the Strugar trial was far-reaching and truthful. We

20 say that the issue of cooperation is determined by evaluating both

21 quantity and quality of the information provided by the appellant to the

22 Prosecution in the Strugar proceedings.

23 We say that his testimony, as outlined in our written

24 submissions, amounts to the substantial cooperation for which this

25 Chamber may consider reducing his sentence on that basis.

Page 325

1 Your Honours, in line with the holding in Kupreskic it is not

2 alleged that the Trial Chamber erred in any way. However, in the

3 circumstances of this case, it is submitted that in the interests of

4 justice, this is an appropriate case for the Appeals Chamber to intervene

5 and reduce the sentence of the appellant on the basis of his testimony in

6 the Strugar trial.

7 Those are my submissions. And my colleague, Mr. Nikolic, will

8 now address you on the second ground of appeal.

9 MR. NIKOLIC: [Interpretation] Your Honours, the appellant's

10 arguments for the second grounds of appeal are as follows: The Trial

11 Chamber in its judgement states, I quote: "Trial Chambers may resort to

12 the range of penalties that courts in the former Yugoslavia could have

13 passed for crimes comparable to those for which the appellant was

14 convicted." This is from paragraph 104 of the judgement. The Trial

15 Chamber in this case considered Chapter XVI of the SFRY Criminal Code, as

16 mentioned in paragraph 111 of the judgement. The crimes from Chapter XVI

17 of the SFRY Criminal Conduct [as interpreted] can be imposed in two ways:

18 by ordering the acts to be committed, and by direct personal commission

19 of the acts. These crimes, quite justifiably, prescribe quite severe

20 sentences up to 15 years imprisonment. There is also the possibility of

21 imposing a sentence of 20 years instead of imposing the death sentence.

22 We believe that the Trial Chamber erred in the application of law when it

23 consulted Chapter XVI of the SFRY Criminal Code with references in the

24 sentencing judgement to Articles 142, 148, and 151 of the said Criminal

25 Code. The appellant was not charged for any of these two forms of

Page 326

1 commission. He did not order the commission and did not personally take

2 part in the criminal acts.

3 The appellant, according to the Statute of the International

4 Tribunal for the Former Yugoslavia is responsible as an aider, based on

5 the second amended indictment, because he failed to carry out sufficient

6 and adequate measures to prevent, reduce and stop the shelling of the

7 Dubrovnik Old Town on the 6th of December 1991, which went on until quite

8 late in the day. The SFRY Criminal Code recognises aiding as a form of

9 commission, and it is prescribed or sanctioned under Article 24 of the

10 said code. I will briefly quote that article. It states, "The person

11 that with intent assists in the commission of a criminal act will be

12 punished as if they had committed it themselves even though there is a

13 possibility of imposing a lighter sentence."

14 In paragraph 2 of this Article, the forms of commission -- of

15 aiding and abetting are described which consist of active acts. The

16 responsible -- the appellant is responsible, according to Article 7(1) of

17 the Statute of the Tribunal as an aider and abettor and the form of

18 commission of the criminal act consisted in the omission or failure to

19 act.

20 Article 24, which refers to aiding and abetting of the Yugoslav

21 Criminal Code does not provide for aiding in the commission of a crime

22 can be committed by a failure to act or by non-commission. Therefore,

23 it's not possible to be an aider and abettor according to Articles 142,

24 148 and 151 if this aiding takes the form of non-commission or omission

25 or failure to act.

Page 327

1 A person, according to the standard of the Tribunal, can be held

2 responsible under Article 7(1) of the Statute as an aider and abettor not

3 only for commission as a form of commission but also for non-commission

4 of the act. The error of law resulted in the Trial Chamber's consulting

5 the norms of the Yugoslav Criminal Code, which are not comparable and

6 applicable to the factual basis and form of commission of the criminal

7 acts before the Trial Chamber that the appellant was charged with, and

8 which was established in keeping with the standards of this Tribunal.

9 Another effect of the error of law is that the Trial Chamber in

10 applying Article 24 of the Statute of the Tribunal, misdirected itself to

11 Articles 142, 148 and 151 of the SFRY Criminal Code as the general

12 sentencing practice in the courts of the former Yugoslavia, which, as a

13 consequence, had the imposition of quite a severe sentence for the

14 appellant.

15 Had the Trial Chamber correctly consulted the Yugoslav law with

16 reference to forms of commission, the appellant, who, according to the

17 indictment and the Tribunal standards, was -- his acts were qualified

18 under 7(1) as non-commission, should not have resorted to, as comparable

19 Chapter XVI of the Yugoslav Criminal Code in relation to the sentencing

20 practices. So this error of law had, as a consequence, the imposition of

21 quite a severe punishment.

22 Your Honours, I will stop here as far as my oral arguments are --

23 for the second ground of appeal. But I'm not changing my position and

24 hypothetically, even had the Trial Chamber correctly consulted the

25 Yugoslav laws, Articles 142, 148 and 151, it made a different error

Page 328

1 because it should have consulted also the cited Article 24 of the

2 Yugoslav Criminal Code, which provides for aiding as a form of

3 commission, because the appellant is responsible for aiding and not for

4 the direct commission of the acts. According to Yugoslav laws, a person

5 aiding in the commission of an act can be more leniently -- can be

6 imposed a more lenient sentence and this is in the practice of the

7 Yugoslav courts. This -- these misapplied provisions of Chapter XVI of

8 the Criminal Code in paragraph 111 of the judgement, without the

9 application of Article 24 which would make possible a lenient, more

10 lenient sentence, again led to the imposition of quite a severe sentence

11 for the appellant.

12 Your Honours, the Defence in this way has stated its arguments on

13 the -- this ground of appeal and I would like to conclude as follows.

14 Based on the arguments stated, I respectfully ask the Appeals Chamber to

15 reduce the appellant's sentence of seven years imprisonment imposed by

16 the Trial Chamber, in accordance -- and do so in accordance with the

17 suggestion of the appellant, stated in his appellant brief, which was

18 presented before the Trial Chamber and this proposal states that the

19 sentence imposed on him should not be higher than two years. And I would

20 also like the appeals Chamber to intervene and correct the errors in law

21 and factual errors committed by the Trial Chamber cited in the first,

22 second, third, fifth and sixth grounds of appeal and to intervene in

23 order to accept the testimony of the appellant in the Strugar case as a

24 mitigating circumstance as stated in the seventh ground of appeal. Thank

25 you.

Page 329

1 JUDGE WEINBERG DE ROCA: Thank you very much, Mr. Nikolic. Are

2 there any questions? Judge Shahabuddeen?

3 JUDGE SHAHABUDDEEN: Mr. O'Sullivan, you referred to a double

4 conviction under paragraphs 1 and 3 of Article 7, and you referred to the

5 Blaskic case. As I understand it, your submission is that a double

6 conviction is impossible. So I've been looking at your notice of appeal.

7 Was -- could you kindly direct me to the part of the notice of appeal

8 which is dealing with this issue?

9 MR. O'SULLIVAN: Yes, Your Honour. That does not appear in our

10 notice of appeal because the Blaskic appeal decision was rendered

11 subsequent to our notice of appeal. The Blaskic appeal decision was July

12 29th, 2004, and our original notice or notice and our brief was prior to

13 that.

14 JUDGE SHAHABUDDEEN: I take it, then, that you're applying to

15 amend your notice of appeal so as to add this as a further ground?

16 MR. O'SULLIVAN: Well, we are in agreement with the response by

17 the Prosecution to our brief, where the Prosecution has raised this

18 matter and we -- in our reply to the Prosecution's response, we -- we

19 wish to integrate.

20 JUDGE SHAHABUDDEEN: Do you recognise that as a procedural

21 difficulty that you're arguing a point which does not appear in your

22 notice of appeal?

23 MR. O'SULLIVAN: No, I do not, and for this reason, Your Honour.

24 The law changed on July 29th, 2004, by the ruling of this Chamber in

25 Blaskic and we are asking you to exercise your discretion and to

Page 330

1 harmonise the law of the Tribunal in this particular instance, where, as

2 in Blaskic, identical conduct can give rise to either liability under

3 7(1) or 7(3) but not both.

4 JUDGE SHAHABUDDEEN: I appreciate that, Mr. O'Sullivan. All I'm

5 asking was from the point of view of tidiness of procedure and the

6 elegance of the papers before the Court, whether you were proposing to

7 amend your notice of appeal so as to add this as a ground.

8 MR. O'SULLIVAN: I understand -- your point is well taken, Your

9 Honour. I understand it. We took the view that in the response by the

10 Prosecution and our reply, we had effectively done that but your point is

11 well taken that we did not formally amend the notice.

12 JUDGE SHAHABUDDEEN: Now I turn to your interesting submissions

13 on the question of previous acts which occurred in October, I think. And

14 your submission is that the Trial Chamber was really taking that into

15 account in sentencing this gentleman as it did.

16 Now, I see that the plea agreement says that the appellant will

17 be pleading guilty to the second amended indictment. Now, does this

18 second indictment include a reference to these previous acts? Paragraph

19 8 of the second amended indictment refers to that. It says, "From 23,

20 paragraph 8, it says, "From 23 October 1991, through 6 December 1991,

21 hundreds of shells fired by the JNA forces impacted on the Old Town area

22 of the city." And then there is your plea agreement. I'm a little

23 unclear as to why paragraph 11 and 12 of the plea agreement specifically

24 refer to these prior acts. Shall I read paragraphs 11 and 12 of the plea

25 agreement for you? Yes. You're acquainted with those paragraphs.

Page 331

1 MR. O'SULLIVAN: Yes, I am.

2 JUDGE SHAHABUDDEEN: Well, they referred to those prior acts. So

3 could I ask you: What was the intention of the appellant in including

4 paragraphs 11 and 12 in his plea agreement, if no notice was to be taken

5 of those prior events?

6 MR. O'SULLIVAN: Thank you, Your Honour. We make a distinction

7 between taking notice of those prior events and the operative paragraphs

8 of the indictment, which -- to which he pleaded guilty and the operative

9 paragraphs of the indictment for aiding and abetting were paragraphs 13

10 and 21, which limit his criminal conduct to the events of the 6th of

11 December 1991 only. He also pleaded guilty on the basis of paragraph 16

12 and paragraph 23 of the indictment in relation to Article 7(3) for that

13 same events and same conduct.

14 JUDGE SHAHABUDDEEN: But what I'm asking you is what notice was

15 the Trial Chamber supposed to take of those two paragraphs of the plea

16 agreement which refer to those prior acts? What effect, if any, was the

17 Trial Chamber to give to those paragraphs?

18 MR. O'SULLIVAN: We say that those paragraphs have no effect in

19 relation --


21 MR. O'SULLIVAN: No effect to his criminal responsibility.

22 JUDGE SHAHABUDDEEN: So they might have been excluded from the

23 plea agreement.

24 MR. O'SULLIVAN: They are there as a general context but not as a

25 basis for any criminal liability.

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Page 333

1 JUDGE SHAHABUDDEEN: Let me take you to the transcript of the 4th

2 of December 2003 before the Trial Chamber, in which reference was made to

3 this matter. Now, counsel for the crown, counsel for the Prosecution,

4 was on his legs and he was arguing this way at page 200. He said, "The

5 failure of command was such that it aided and abetted what happened on

6 the 6th," that is the 6th of December. He was referring to these prior

7 acts. And he said they aided and abetted the events on the 6th.

8 Now, then, you came along at page 206, and you said -- counsel

9 for the Prosecution had spoken, and then you came along and you said, "My

10 learned friend from the Prosecution has set out for us the context which

11 brings us here today." Did you object in any way to counsel for the

12 Prosecution saying what he said, namely that these prior acts aided and

13 abetted what happened on the 6th?

14 MR. O'SULLIVAN: My understanding of the submissions by the

15 Prosecution that day were completely consistent with the express language

16 of both the indictment and the plea agreement and that there was no

17 dispute between the parties to the acts to which Admiral Jokic had

18 pleaded guilty, namely the 6th of December 1991 only. That is both in

19 the indictment and that language from the indictment is mirrored word for

20 word in the plea agreement. The understanding between the parties was

21 clearly that only the 6th of December and the conduct and events of that

22 day resulted in criminal liability to Admiral Jokic and his understanding

23 was he was pleading guilty to that. So there what was no dispute between

24 the parties, and in my submission, there was no reason to create

25 something that wasn't there.

Page 334

1 JUDGE SHAHABUDDEEN: I understand your position, Mr. O'Sullivan.

2 Thank you very much.


4 JUDGE MUMBA: Thank you. My question actually follows on what

5 Judge Shahabuddeen has been referring to and I'm grateful to him for

6 giving the details. I just want to ask one general question as a matter

7 of law really on guilty pleas.

8 As has been the experience of the Tribunal in the various cases,

9 is it your position that in a guilty plea agreement, Trial Chambers

10 should specifically be clear as to the facts agreed to by an accused

11 person in his plea agreement, so as to avoid convicting an accused person

12 beyond that which he has agreed to as having been either done by him or

13 omitted to be done by him during the -- at the material time during the

14 events for which he is being indicted?

15 MR. O'SULLIVAN: My short --

16 JUDGE MUMBA: Would you agree it to that?

17 MR. O'SULLIVAN: My short answer to your question is yes.

18 JUDGE MUMBA: If you agree to that, then it becomes very

19 important for counsel in guilty pleas to be specific when drawing these

20 plea agreements, and also to be specific when getting instructions from

21 their clients as to what their clients are actually pleading guilty to.

22 It would be much better, it would help the Trial Chambers a lot. Thank

23 you.

24 JUDGE WEINBERG DE ROCA: Thank you, Judge Mumba. Judge

25 Schomburg?

Page 335

1 JUDGE SCHOMBURG: One more or less procedural question. You ask

2 the Appeals Chamber to take into account the testimony your client has

3 given in the Strugar case. Of course, you admitted that it was not

4 possible for the Trial Chamber to take into account this testimony, which

5 was later than the decision of the Trial Chamber and the sentencing

6 judgement in this case.

7 If I'm correct, please correct me if I'm wrong, there was no

8 request for additional evidence under Rule 115 in order to go into

9 details of the scope of this additional evidence. However, isn't it

10 correct that, based on the plea agreement, it was well taken into account

11 that your client will also in future and in particular in the Strugar

12 case, testify? And this was already taken into account by the Trial

13 Chamber as a mitigating factor, the future cooperation with the Tribunal.

14 Thank you.

15 MR. O'SULLIVAN: Two points, Your Honour. First, we did file a

16 Rule 115 submission on the 21st of June 2004, in relation to the

17 testimony of Admiral Jokic in the Strugar case. That motion was denied.

18 The seventh ground of appeal in our submission boils down to a legal

19 issue. The jurisprudence of the Tribunal, and we refer to the Blaskic

20 trial judgement, defines substantial cooperation as an examination by the

21 trier of fact, the Chamber, to examine both the quantity and quality of

22 that cooperation with the Prosecution. We say that because the testimony

23 became [sic] later, after the judgement, it lasted 15 days in the Strugar

24 trial, we say that if you look at what actually happened, Admiral Jokic

25 did live up to his obligation, which he did have, Your Honour, we don't

Page 336

1 shy away from that. We say, however, that the quality and quantity of

2 that substantial cooperation is overwhelmingly persuasive or ought to be

3 and ought to be considered by this Chamber based on Rule 101 and the

4 Kupreskic ruling. Of course he did have an obligation to cooperate but

5 we say if you look specifically at what happened in this instance and how

6 -- what Admiral Jokic did in the Strugar trial he should be given credit

7 for it.


9 JUDGE MUMBA: Thank you again, Madam President. I just wanted to

10 ask another question regarding procedure to counsel. These events are

11 happening in the Tribunal, that those who plead guilty either give

12 evidence in another trial before the conviction or after the conviction,

13 there is -- they give evidence in another trial as a form of cooperation

14 with the Prosecutor.

15 Now, I just want to find out from counsel: In such a situation

16 where at the time of the appeal hearing there is a record in the Tribunal

17 that the appellant actually did give further evidence or has been a

18 witness in more cases assisting the Prosecutor, that is after conviction,

19 what should be the legal procedure? Should counsel apply under Rule 115

20 or should counsel plead that that is a record of the Tribunal and that

21 the Appeals Chamber should take judicial notice?

22 MR. O'SULLIVAN: Well, I think the -- it depends when the

23 testimony occurred. In this particular case, --

24 JUDGE MUMBA: I'm talking about after conviction, because really

25 what happens after conviction would be subject to some procedure like

Page 337

1 applying for that to be -- taken note of by the Appeals Chamber.

2 MR. O'SULLIVAN: My general answer would be that post-conviction

3 cooperation could fall into two categories. One category could be our

4 situation where the post-conviction cooperation is prior to the appeals

5 judgement, if there is an appeals judgement. And in that case, we relied

6 on the Kupreskic approach. But of course a person could cooperate even

7 further down the road, in which case, I think the avenue -- the only

8 avenue then would be the review provision in our Rules.

9 JUDGE MUMBA: No. I just wanted to restrict you to a situation

10 where it's post conviction before the appeal hearing, that period only.

11 MR. O'SULLIVAN: Which is exactly where we are, I think. And our

12 submission that had the Appeals Chamber -- had the Trial Chamber had the

13 benefit of what the Appeals Chamber has now, we say that's why it should

14 be considered in mitigation. It's the only way that -- it was abstract

15 before. The obligation on the part of the appellant was there to

16 cooperate and was considered in the trial judgement; however, we say that

17 in fact now we know the extent of his cooperation. It was complete and

18 full and far-reaching and truthful and we say the quantity and quality of

19 that should be considered, just as it would have been considered by the

20 Trial Chamber if in time he had testified in a subsequent case before his

21 sentencing judgement. So that's why we are saying you have the ability

22 in this Chamber to exercise that discretion at this time.

23 JUDGE WEINBERG DE ROCA: Thank you, Mr. O'Sullivan. Mr. Farrell?

24 MR. FARRELL: Thank you. With the Court's leave, I'd like to ask

25 my colleague, Ms. Kind, to go first. She will deal with grounds -- the

Page 338

1 third ground of appeal, related to the mitigating factors; the fifth

2 ground of appeal relating to health and family circumstances; and the

3 sixth ground of appeal relating to the good character and

4 professionalism. And then, with Your Honours' agreement, I will proceed

5 to deal with the first ground of appeal, the second ground of appeal and

6 the seventh ground of appeal to finish the Prosecution's submissions, if

7 I may. Thank you.

8 JUDGE WEINBERG DE ROCA: Please go ahead.

9 MS. KIND: Thank you, Your Honours. With your permission, I will

10 try and be brief to leave enough time for my colleague, Mr. Farrell, to

11 deal with the other grounds of appeal.

12 First, with regard to the appellant's third ground of appealing,

13 the Prosecution submits that the Trial Chamber did not err in law and did

14 not apply a wrong standard for the establishment of factors in mitigation

15 of the sentence. The judgement reveals that the Trial Chamber considered

16 as established all the mitigating factors pled by the appellant

17 regardless of whether the Prosecution took a position with regard to a

18 particular factor or not.

19 Paragraph 69 of the judgement is a reference by the Trial Chamber

20 to all the factors presented by each of the parties, and the reference in

21 our submission in footnote 100, there is no basis in the judgement that

22 the Trial Chamber would have considered factors in mitigation that both

23 parties made representations towards, were presented to the exclusion and

24 considered by the Trial Chamber to the exclusion of other factors only

25 presented by the appellant in mitigation.

Page 339

1 The Trial Chamber very carefully considered all factors, in

2 particular also with regard to the personal circumstances of the

3 appellant.

4 As to the weight attached to individual factors, the Trial

5 Chamber has a broad discretion and the burden is on the appellant to

6 demonstrate that a discernible error in the exercise of the Trial

7 Chamber's discretion occurred. The Prosecution submits that the

8 appellant failed to do so.

9 All the factors which the appellant takes issue with in his third

10 ground of appeal, such as his age; his conduct prior to, during and after

11 the commission of the offences; as well as the exceptional family

12 circumstances of the appellant, were considered by the Trial Chamber and

13 given the appropriate weight. The Prosecution submits that overall, it

14 was within the Trial Chamber's discretion to give a more limited weight

15 to personal circumstances as such in light of the gravity of the offences

16 for which the appellant has accepted responsibility. As well as compared

17 with other circumstances considered by the Trial Chamber in mitigation,

18 which are in our submission more directly linked to the appellant's

19 culpability, such as the fact that he did plead guilty, accept

20 responsibility, and expressed sincere remorse in words and acts and was

21 also found to have substantially cooperated. That's what the Trial

22 Chamber was guided by, and not the fact whether the Prosecution had taken

23 a position on a specific factor as well.

24 As reflected in paragraph 103 of the judgement, the Trial Chamber

25 then attached the appropriate weight to each set of mitigating factors.

Page 340

1 Therefore the Prosecution submits that no discernible error in the

2 exercise of the Trial Chamber's discretion has been established by the

3 appellant. And I refer to our more detailed submissions in our response

4 brief at paragraphs 4.38 through 4.67 with regard to the third ground of

5 appeal.

6 Unless there are any questions I will move on to the fifth ground

7 of appeal, related to the specific family circumstances plead by the

8 appellant. The Prosecution submits that the Trial Chamber considered the

9 appellant's specific family circumstances in mitigation of the sentence

10 and I want to make it clear that in no way the Prosecution wants to

11 distract from the fact that the circumstances are specific but it is our

12 position that the Trial Chamber was fully aware of the specific

13 circumstances in this case and took them into account.

14 This is reflected in the judgement, for example, in paragraph 69,

15 where the Trial Chamber sets out the mitigating factors pled by the

16 appellant and makes reference to the submissions made by the appellant in

17 his brief as well as the sentencing hearing. Equally in paragraph 97 of

18 the trial judgement, where the Trial Chamber considers that the appellant

19 is married and has two adult daughters. Again, reference is made to the

20 submissions by the appellant; equally in paragraph 98 where specific

21 reference is plead to the witness Marjan Pogacnik, called by the

22 appellant, who testified that he is an exemplary father; and subsequently

23 in paragraph 101, the individual circumstances of the appellant are

24 considered, again with reference to the submissions made.

25 The Prosecution submits that the Trial Chamber is not required to

Page 341

1 go into more detail. It also has to be considered as already referred to

2 by counsel for the appellant that the specifics of the family

3 circumstances have been dealt with in confidential submissions, so the

4 amount to which the Trial Chamber can actually make reference to that in

5 a public judgement is limited.

6 As already pointed out by counsel for the appellant, the Trial

7 Chamber was fully aware from the litigation related to provisional

8 release of the specific family circumstances.

9 Regarding the weight attached by the Trial Chamber, the

10 Prosecution submits that it was within the Trial Chamber's discretion to

11 find that weighed against the seriousness of the offences and considered

12 in the context of other mitigating circumstances going more directly to

13 the culpability of the appellant, more limited weight was given to the

14 family circumstances together with other factors considered as personal

15 circumstances.

16 In conclusion, the Prosecution submits that the appellant has not

17 demonstrated that the Trial Chamber failed to consider the special family

18 circumstances in mitigation or abused its discretion. The Prosecution

19 refers Your Honours to paragraphs 4.68 and to 4.89 of the Prosecution's

20 response brief for more detail in this matter.

21 And just a few words, with your permission, in response to the

22 sixth ground of appeal regarding the good character and professionalism

23 of the appellant. The Prosecution submits that the judgement reflects

24 that the Trial Chamber did consider the totality of the evidence

25 presented by the appellant in relation to the good character and

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Page 343

1 professionalism of the appellant in mitigation of the sentence. It

2 doesn't matter where the Trial Chamber -- under which heading, it is our

3 submission, where the Trial Chamber considers these factors. The

4 important thing is that all factors, all the evidence that is presented

5 is taken into account.

6 And the Prosecution submits that the trial judgement clearly

7 shows that under the heading of personal circumstances, reference is made

8 to the good character and professionalism; that aspects of this

9 mitigating factor pled by the appellant in support of this factor were

10 taken into account with regard to the consideration of remorse, for

11 example, or the appellant's cooperation, factors which the Trial Chamber

12 eventually found to be in paragraph 114 of exceptional importance because

13 of all the evidence that was before the Trial Chamber. Again, I will

14 refer you respectfully to the Prosecution's response brief paragraphs

15 4.90 to 4.111 for more detail.

16 And subject to your questions will hand over to my colleague, Mr.

17 Farrell.

18 JUDGE WEINBERG DE ROCA: Thank you very much, Ms. Kind. Mr.

19 Farrell?

20 MR. FARRELL: Thank you, Your Honours. I will proceed to respond

21 to some of the submissions, and if I may, at the same time to some of the

22 questions that were raised by the panel members with respect to the

23 grounds of appeal.

24 Starting with ground 1, there is two matters that I think need to

25 be dealt with, probably maybe more procedurally than factually, which is

Page 344

1 it appears that -- and this was not recognised in the Prosecution's

2 response brief, but it appears, in my submission, that the first ground

3 of appeal actually goes to conviction not to sentence. And that the

4 first ground of appeal a request that the conviction be revised; that in

5 fact there was a finding of guilty under Article 7(1) for acts which were

6 outside the scope, the temporal scope of the indictment, and that

7 conviction for 7(1) for those acts cannot stand. The impact, then, is,

8 if accepted, the acts on the 6th are the acts and omissions for which the

9 appellant could have been found guilty and the question then is would the

10 sentence be any different if you remove the basis of culpability that was

11 found for Article 7(1), aiding and abetting for acts before the 6th?

12 The second issue is that if you remove the base of liability

13 under Article 7(1) for aiding and abetting for the acts prior to December

14 6th, what you're left with are the acts on December 6th. The Trial

15 Chamber only found the appellant guilty for the acts on December 6th

16 under 7(3), not under 7(1). My reading of the Trial Chamber's judgement

17 is that the Trial Chamber split up the findings to find that he was

18 partially liable under 7(1) for the acts before, if I read it correctly,

19 and partially liable for the acts on the 6th under 7(3). If the removal

20 of liability for -- under Article 7(1) for the acts before is correct, as

21 the Prosecution has conceded, the result will be is that the only thing

22 remains or is maintained is a finding of guilt under Article 7(3) for the

23 acts on the 6th. My reading of the judgement is that the Trial Chamber

24 did not find the accused guilty for acts on the 6th under Article 7(1),

25 aiding and abetting. This places the Court in somewhat of a predicament

Page 345

1 in that the appellant pled guilty to Article 7(1) and Article 7(3) for

2 the acts and omissions solely related to the 6th and as a result of what

3 the Trial Chamber did, he was found guilty simply under 7(3).

4 Therefore, based on the plea of guilt, this Appeals Chamber,

5 based on that plea which was accepted at trial, could determine whether

6 7(1) or Article 7(3) is more appropriate to the facts to which he

7 admitted and the base of liability he acknowledged he was guilty for.

8 The Court may determine it was more appropriate, if the Court accepts the

9 Prosecution's concession, simply to maintain the conviction for 7(3) as

10 it stands with respect to the acts on December 6th.

11 If I may point to the plea agreement and the indictment, partly

12 to address the question of -- the valid question raised by His Honour

13 Judge Shahabuddeen and to partly explain at the same time the

14 Prosecution's concession. If I may take you to the plea agreement and

15 the indictment, if you have it before you, if not I will cite to the

16 passages. If you wish, I have copies of the plea agreement and the

17 indictment with me, if you don't have it before you, Your Honours. If

18 not, I will simply refer to it.

19 JUDGE WEINBERG DE ROCA: Just refer to it, Mr. Farrell.

20 MR. FARRELL: Thank you, Your Honour.

21 I think the difficulty that the Trial Chamber found itself in

22 arose out of the wording of the plea agreement and I accept that they

23 probably were led into a bit of a misunderstanding by the submissions of

24 the Prosecution, referred to by His Honour Judge Shahabuddeen at page 200

25 of the sentencing submissions.

Page 346

1 But the reason, in the Prosecution's submission, why the acts

2 prior to December 6th could not be included as a basis for liability is

3 for the following: In the plea agreement, paragraph 3, reference is

4 made, first of all, to his guilt being based and relating solely to the

5 events of December 6, 1991. Then, as His Honour Judge Shahabuddeen has

6 pointed out, from paragraphs 11 through to 14, the plea agreement sets

7 out the facts relevant to the plea.

8 Then, if you go to the indictment, if I may take you to the

9 actual indictment, paragraph 5. Paragraph 5 of the indictment says "all

10 acts and omissions" -- and I emphasise omissions -- says "all acts and

11 omissions for which he is liable occurred on or about the 6th of

12 December."

13 Though the indictment -- well, the indictment is very narrowly

14 circumscribed and it appears to my understanding that there was agreement

15 that the acts and omissions would be limited to the 6th. So from

16 paragraph 5 it says the omissions occurred on the 6th, not the omissions

17 that occurred in October or November.

18 Then, as you'll see in the indictment, paragraphs 8 onward deal

19 with the factual basis as understood in the indictment. If you look at

20 the actual count, if I may, of the indictment, Counts 1 to 3, paragraph

21 10 indicates that the Prosecutor realleges and incorporates by reference

22 paragraphs 1 to 9 previously. Paragraphs 1 to 9 previously deal with the

23 events, including the events in October through until December, the basis

24 on which the Court may have concluded that the Prosecution was seeking to

25 have him liable for his acts and omissions prior to December 6th. But if

Page 347

1 you look at the paragraphs under the counts, paragraph 11 deals with the

2 acts on the 6th; paragraph 12 deals with his awareness; paragraph 13

3 deals with the 6th; paragraph 14 deals with the 6th. And then paragraph

4 15 states the following: "By virtue of his knowledge, acts and omissions

5 set out in paragraphs 11 to 14," and then says he is guilty for aiding

6 and abetting. Paragraphs 11 to 14 above only deal with events on the

7 6th.

8 Secondly, if you look at paragraph 16, the 7(3) liability is in

9 the alternative. Now it may have not been made clear to the Trial

10 Chamber, I concede, but the Prosecution pled these in the alternative for

11 the acts on the 6th not as a partial basis of liability found by the

12 Trial Chamber. There was either a business basis under 7(1) or if not, a

13 basis under 7(3); but they weren't -- the acts on the 6th or the previous

14 acts were not to be split up to decide which ones went to 7(3) or which

15 ones went to 7(1). Now, once again I concede that the passage at

16 paragraph 200, I think there the Prosecution misspoke. I think that

17 based on the indictment, and as I understand it, the understanding of the

18 parties were that it was to be limited to the acts and omissions. Maybe

19 the Trial Chamber might have considered that somewhat artificial. But

20 it's not a matter of the agreement; it's not a matter of whether the

21 parties agreed to a certain thing which the Trial Chamber did not accept.

22 In my submission, what it's limited by is the indictment itself, not the

23 agreement of the parties. And so the sole issue whether or not the

24 indictment charges for acts and omissions outside of December 6th, and it

25 appears from my respectful reading of the indictment it does not and that

Page 348

1 was the basis of the understanding, despite the submissions by the

2 Prosecution on page 200 of the sentencing brief.

3 The question then becomes, well, what is the relevance of the

4 pre-December 6 acts if I can call it that, or pre-December 6 omissions?

5 It's the Prosecution's submissions that they are relevant and can be

6 relied upon when considering the mental state under 7(3) or 7(1) of

7 Admiral Jokic on the morning of the 6th. As we've noted in our

8 Prosecution's brief, the Strugar Trial Chamber based on a similar

9 argument by the Prosecution has accepted that previous information, prior

10 to the 6th, would alert a superior to the fact that crimes that might be

11 included -- might be committed -- I'm sorry. Previous information would

12 alert a superior to the fact that crimes might be committed based on the

13 prior conduct of the subordinates or the history of maltreatment, and as

14 a result of the prior shelling, in this case, Admiral Jokic was aware of

15 the potential for damage. Therefore, on the morning of the 6th when he

16 is informed early in the morning of the attack, he, one, knows of the

17 need to act immediately; and he is put on notice of what may constitute

18 the reasonable measures in the circumstances to prevent or punish. In

19 other words, he may know of the need to act immediately and forcefully

20 because of the knowledge he has previously.

21 That was the way, as I understand it, the Prosecution proceeded

22 with respect to the indictment and the agreement with the appellant and

23 that is the basis for the Prosecution's concession before this Court with

24 respect to the first ground of appeal.

25 I will now go on to the issue of what impact it would have on

Page 349

1 sentence, unless there is questions at this point.

2 JUDGE WEINBERG DE ROCA: Judge Schomburg?

3 JUDGE SCHOMBURG: It's in fact a difficult matter, I think

4 primarily of law, whether to apply 7(1), 7(3), or both of them. The

5 judgement in my reading refers to the 6th -- to acts or omissions of the

6 6th of December only. You stated that in the indictment, it is pleaded

7 in the alternative. Do I understand you correctly saying now that on the

8 basis of the development of the jurisprudence of this Tribunal, when

9 there is a responsibility under the -- under 7(1), there can't be an

10 additional responsibility under 7(3), maybe also vice versa? How would

11 you characterise the acts in legal terms? Would it be more a command

12 responsibility or would it be more a commission by omission because the

13 appellant might have had the duty to intervene; and in non-intervening,

14 this could be -- could be characterised as a 7(1) responsibility by

15 omission?

16 MR. FARRELL: If I understand you correctly, my answer would be

17 the following. I think there are three hypothetical forms of liability.

18 The first one under 7(1) does not require -- 7(1) aiding and abetting

19 does not require any duty to act. 7(1) aiding and abetting is that in

20 his position as an a commander he continues to not take steps which

21 encourages his troops or gives them the message that it is sanctioned,

22 and therefore that's a 7(1) aiding and abetting, and it doesn't

23 necessarily depends on whether or not he has a duty but that they feel

24 encouraged by someone who is their superior.

25 Now, if they don't -- if he has a -- there can be examples of

Page 350

1 aiding and abetting, in my submission, where there is no relationship of

2 superior-subordinate. A group of people get together, they decide to

3 commit a serious crime like a rape; they all stand around, and the acts

4 of the others standing around while one person is committing the sexual

5 assault maybe seen as encouragement of the others. In that case, there

6 is a Supreme Court of Canada case on point that says that and I can refer

7 to it if you wish. In that case there is no necessity of a

8 superior-subordinate relationship or some type of command relationship.

9 It's the fact that the acts of the one are perceived to be as encouraging

10 the other to go ahead and do it. Now, of course, we take into

11 consideration that it's a commander because the encouragement may be

12 considered simply by the fact that -- it is a person as a commander not

13 acting. The second issue is whether or not there is an act -- I'm sorry,

14 whether or not a commander by his omission could essentially be culpable

15 under 7(1) because that omission leads to the act being caused. And I'm

16 sorry, I have not given it much thought, but Blaskic Appeals Chamber

17 decision seems to accept that that is a possibility. In those

18 circumstances where the liability under 7(1) for omission is possible on

19 the facts, my understanding from the Blaskic decision is it would require

20 a duty to act. And therefore, it would be relevant that is the commander

21 in a position where they have a duty to act.

22 Those are acts of, if I can call them for lack of a better word,

23 acts of commission. They are 7(1) acts, which encourage or cause or are

24 contributing factor to the events occurring. Those two possibilities.

25 7(3), as I understand it, is a separate form of liability, which you're

Page 351

1 fully aware of Your Honour, which is more of a criminal responsibility

2 held for commanders because of the specific circumstances in which they

3 find themselves in under international humanitarian law in times of war,

4 and that their failure to act is one which requires the fact that there

5 is a duty to act -- that duty is found under 7(3) and Article 86 and 87

6 of the First Additional Protocol and that that failure to act in those

7 circumstances results in criminal liability.


9 JUDGE WEINBERG DE ROCA: Judge Shahabuddeen?

10 JUDGE SHAHABUDDEEN: May I put this to you, that the question of

11 a double conviction under 7(1) and 7(3) seems, in my recollection, to

12 turn on the question of the illogicality of ordering an act and then of

13 your being convicted for not preventing or punishing that act. It

14 assumes that the accused is particeps to the main crime, and then it

15 says, it's illogical to say if he's particeps in the same crime, he's at

16 the same time liable for not preventing or punishing what he's ordered.

17 Now, does that have any application? Does the concept of illogicality on

18 which that thesis is based have any application to a case in which the

19 appellant is convicted of aiding and abetting? Because, if I recall the

20 jurisprudence right, in the case of aiding and abetting, it is not being

21 said that you were particeps in the main crime, only that you knew that

22 the perpetrator had that intent in mind. How do you respond to that?

23 MR. FARRELL: In relation to the issue of the fact that it is

24 illogical, I'm aware of the jurisprudence from the Trial Chamber in

25 Blaskic, Your Honour, in that regard. It comes down in my mind -- in my

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Page 353

1 submission, to one of two things. If you consider the determining factor

2 to be the participation as a 7(1) participant, then as aiding and

3 abetting is another form of participation under 7(1), similar to

4 ordering, in that you are participating, you are doing the act itself, by

5 encouragement you are taking steps to ensure the completion of the act.

6 Then if that's the criteria, then 7(1) liability for aiding and abetting

7 would be illogical with 7(3), because similar to ordering, you shouldn't

8 be held liable for both encouraging an act to happen and then being

9 liable under 7(3) for not stopping that which you encouraged.

10 I think that may be the determining factor, in my submission,

11 although I must apologise, I haven't given this much thought.


13 MR. FARRELL: If the determining factor is that the elements

14 under 7(1) would have to be that you have the specific mens rea - for

15 example, for ordering it's your intention to order the crime and

16 therefore it would be illogical that you would be responsible for

17 stopping your own order - if you have to have the more specific mens rea,

18 then aiding and abetting has a lesser mens rea and there maybe a

19 distinction. But it would seem a little illogical to me if the Blaskic

20 standard for order something that you order the crime to happen or you

21 issue an order which you know may result in the crime happening, a sort

22 of dolus eventualis standard to ordering, if both of those are forms of

23 ordering and therefore you have the full intent to order the crime. Or

24 you issue an order which you know -- be aware of the distinct likelihood

25 or possibility a crime will happen. If both of those are considered the

Page 354

1 mens rea for ordering, the latter one is a lesser form of mens rea in

2 terms of the knowledge of the substantial likelihood. And therefore, it

3 would seem illogical to me that you could be found -- not found guilty

4 under 7(1) for ordering on the lesser form of mens rea. You couldn't be

5 found guilty for 7(3) because that's a form of ordering, but you could be

6 found guilty for both 7(1) aiding and abetting and 7(3). That's about

7 the best I can give you on that.

8 JUDGE SHAHABUDDEEN: I collect your submissions this way: That

9 you think that aiding and abetting is substantially akin to ordering.

10 MR. FARRELL: Yes, Your Honour.

11 JUDGE SHAHABUDDEEN: And then you work out the question of

12 illogicality on that basis.

13 MR. FARRELL: Yes, Your Honour, as aiding and abetting.

14 JUDGE SHAHABUDDEEN: If one were to derive a distinction between

15 the aiding and abetting and ordering, would there still be an

16 illogicality?

17 MR. FARRELL: Depending on the distinction, Your Honour. I'm

18 sorry, I can't think it through at the moment. But if there was a

19 distinction there could be no illogicality. The illogicality in your my

20 submission relates to the fact that you both participate under 7(1) and

21 you're held liable for not stopping your participation. But if there is

22 a distinction, then there may very well be that result.

23 JUDGE SHAHABUDDEEN: Let me take you to another branch of your

24 erudite arguments. It concerns the question of the prior acts, the

25 October acts. Now, we have it on the record that counsel for the

Page 355

1 Prosecution said that the failure of command was such that it aided and

2 abetted what happened on the 6th, that is at page 200, and we bear in

3 mind -- I bear in mind your proposition that counsel probably misspoke at

4 that point. Nevertheless, that is what is on the record. Then at page

5 198, he makes it quite clear that that is not part of the charge here.

6 So in his mind, he's quite clear, that, look, this conduct is aiding and

7 abetting, but it's not part of the charge here.

8 Now, is there any reason to suppose that the Trial Chamber

9 approached the matter differently? I pointed out to you Defence counsel

10 agreed with the approach taken by prosecuting counsel, the context which

11 he painted. When one turns to paragraph 57 of the sentencing judgement,

12 if you read the first sentence, the Trial Chamber is speaking and it

13 says, "The plea agreement and subsequent submissions imply that the

14 parties understand Miodrag Jokic's responsibility for the events of 6th

15 December 1991 to fall partially under 7(1) and partially under 7(3)." So

16 the Trial Chamber is quite clear that the question is confined to his

17 acts or his criminal conduct on the 6th of December.

18 When it goes to the first sentence of paragraph 58 reads this

19 way. "Part of Miodrag Jokic's behaviour, specifically certain acts and

20 omissions before the shelling by JNA forces on 6th December 1991 in the

21 specific circumstances of this case, is qualified -- is correctly

22 qualified as aiding and abetting since it had a substantial effect on the

23 commission of the crimes." I want you to focus on the word "crimes".

24 The Trial Chamber seems to be distinguishing between the crimes with

25 which it is concerned with prior acts which contributed to the crimes.

Page 356

1 Would you give me your reaction to that, whether the Trial Chamber had in

2 mind that its jurisdiction to punish was limited to the crimes committed

3 on the 6th of December and prior acts were only relevant in so far as

4 they explained them.

5 MR. FARRELL: In those -- in that general term, in those general

6 terms, I would generally agree. But if I may, the first question is, if

7 I can back up, the first question is whether they found he aided and

8 abetted by his previous omissions the acts and crimes in November. Now,

9 that's clear. They did not. I think that your focus on the word

10 "crimes" here is correctly focusing on the crimes on the 6th of December.

11 So in my submission, what the Court has done is they've said we are not

12 going to look at the previous crimes and what he did in aiding and

13 abetting if he did the previous crimes. We are simply looking at the

14 crimes on the 6th. With that, the Prosecution has no disagreement.

15 Then the Trial Chamber decides what can the Trial Chamber look at

16 in determining his contribution to the acts on the 6th? And what it does

17 is it looks at the acts previously, consistent, I concede, with the

18 sentencing submissions. And then says, the contribution, which would

19 constitute aiding and abetting, included the acts previously but limits

20 it to the crimes on the 6th for which he was charged. That's the way I

21 read the judgement and I think that's consistent with what Your Honour

22 has, if I'm correct, has put forward.

23 The difficulty is that the -- a strict reading of the indictment

24 says that he is only liable for omissions that occurred on the 6th, not

25 for omission that is occurred prior to the 6th. And therefore, the Trial

Page 357

1 Chamber was left in a dilemma as to what to do with the acts before the

2 6th. In my respectful submission, and maybe through -- not completely

3 the fault of the Trial Chamber, they -- what they did was they approached

4 it in a way to try and make sense of the fact that there was a plea to

5 both 7(1) and 7(3) on the exact same facts on the 6th which includes acts

6 and omissions on the 6th and they split it up. And they tried to find

7 what acts would fall under aiding and abetting and what acts would fall

8 under 7(3).

9 A reading of the indictment is that the Trial Chamber could look

10 at the previous acts as context or going to knowledge such that it puts

11 him in the new or had reason to know of the necessity to act on the 6th

12 but he can't be held criminally liable because of the very narrow nature

13 of the indictment itself for the acts previous to the 6th. Those acts

14 are not part of the actus reus, if I can put it that way. They simply go

15 to the context upon which he then has knowledge on the morning of the 6th

16 whether he finds out his obligations are to then immediately take steps

17 in light of the knowledge about what happened previously. That would be

18 my submission to your question.

19 JUDGE SHAHABUDDEEN: Mr. Farrell it remains for me to say this to

20 you. This is a matter of some difficulty and I'm grateful to you for

21 your clarification of the position which I see accords with the position

22 taken by your colleagues on the opposite side. Thank you.

23 MR. FARRELL: Thank you, Your Honour.

24 JUDGE WEINBERG DE ROCA: You have some minutes left, Mr. Farrell.

25 MR. FARRELL: Yes, Your Honour, thank you. In light of the time,

Page 358

1 I will simply put forward my propositions on the other grounds and if

2 there are any questions I will be happy to try and respond.

3 If the Appeals Chamber accepts that the Trial Chamber took into

4 consideration his degree of participation as a form of liability and as

5 part of the actus reus for events prior to the 6th, then the Prosecution

6 concedes that consideration was not that which was found as part of the

7 indictment. As a result, to the extent that they took into consideration

8 the acts prior to the 6th as part of the gravity of the crime, which they

9 did in the section related to gravity, paragraphs 41 and 55, then the

10 gravity of the crime in terms of his acts, the Prosecution concedes,

11 would be somewhat less than the consideration of the gravity of the crime

12 in terms of his degree and participation if it is limited to the 6th.

13 Does that seriously impact on the sentence imposed? With

14 respect, no. The crimes for which he was convicted are the same crimes.

15 There is no additional crimes. It does not result in him being found

16 guilty for different crimes or on a different crime base. And if you

17 look at the factors considered by the Trial Chamber throughout the

18 judgement afterwards, they do not rely on the acts prior to the 6th as an

19 aggravating factor; they do not characterise it as a continuing crime;

20 they do not characterise it as taking place over extended period of time,

21 the types of considerations that you would expect if they took it into

22 account seriously, as a serious factor in sentencing.

23 It's the Prosecution's submission, therefore, that they simply

24 focused on the events of the 6th for which he was properly found guilty

25 and his contribution on the 6th by failing to take steps on the 6th.

Page 359

1 With respect to the second ground of appeal, the Defence position

2 is that Article 142 and 148 are not applicable because they do not

3 encompass criminal responsibility for aiding and abetting or superior

4 responsibility akin to Article 7(3). If I understand their position, it

5 is that since there are -- there is no basis of liability for superior

6 responsibility or for aiding and abetting in the context of this case,

7 there therefore is no sentence from which the Trial Chamber could draw

8 some guidance and that the sentence of five to 15 years specifically as

9 found under Article 142 of the Yugoslav code would be inapplicable.

10 Prosecution's response, if I can try and summarise it, would be that

11 first of all, the laws of the former Yugoslavia are meant as general

12 guidelines. There is not a need in my submission to find exactly

13 replicated provisions with the exact same modes of liability and then

14 determine what the sentence would be on that basis. The approach is a

15 comparative one, one that requires the Court to look generally for

16 whether or not this type of conduct is criminalised.

17 As has been indicated in the Blaskic Appeals Chamber decision and

18 recently in the Dragan Nikolic Appeals Chamber decision, because of the

19 very important underlying differences that often exist between national

20 Prosecutions and Prosecutions in this jurisdiction, the nature, scope and

21 scale of the offences tried before the International Tribunal do not

22 allow for an automatic application of the sentencing practices of the

23 former Yugoslavia. I would submit that they do not allow either for an

24 exact replication of the modes of liability applicable to crimes.

25 And I would submit that this makes sense. If you were to look at

Page 360

1 the Mrdja Trial Chamber decision, the Cesic Trial Chamber judgement and

2 the Momir Nikolic Trial Chamber judgement, what you would find is that

3 all three courts recognise that there is no crime in the SFRY code

4 specifically for crimes against humanity. 142 -- Article 142, 148 and

5 151 do not have the elements necessary for crimes against humanity. They

6 do not have the elements of widespread or systematic. But the Trial

7 Chambers in those three cases have said we recognise that there is no

8 specific crime against humanity in the Yugoslav code but we look to see

9 what is an analogous or similar conduct. And I would submit that the

10 Trial Chamber was correct in doing the same in this circumstance.

11 With respect to the arguments related to whether or not the law

12 itself of the former Yugoslavia would criminalise this conduct, I would

13 be -- in my submission, the Court should be hesitant to go in that

14 specific direction. The Trial Chamber had before it Article 142, 148 and

15 151. We now, with the full code before us, understand that there is a

16 provision actually for aiding and abetting, it's Article 24. And the

17 then that's been raised by my learned friend is whether or not Article 24

18 would strictly apply because in his reading of Article 24 it only applies

19 to positive acts, not to omissions, therefore different than Article

20 7(1). Then we would have to go to the regulations referred to by the

21 Trial Chamber, the regulations applicable in times of war, Article 21,

22 that talk about the obligations and whether or not those obligations

23 would therefore constitute a form of duty such that it would fall under

24 Article 24 and aiding and abetting. And lastly I note that there is an

25 Article 30 which actually says that the Yugoslav code interprets

Page 361

1 commission as including omission where there is a duty to act. And if

2 that's the case, then I would submit that there is a general framework

3 which is similar to ours. It may not be exactly the same, the modes may

4 be considered somewhat different. But at the end of the day, the

5 question is whether or not there is something comparable that will give

6 the Court some guidance. In that respect I would submit that there was

7 no error by the Trial Chamber in looking for analogous or similar

8 provisions.

9 Lastly, ground 7, which is the question of post-trial

10 cooperation. I have three points to make, and then one additional

11 comment.

12 The first point is that this matter is alleged to be something

13 that the Trial Chamber -- excuse me, the Appeals Chamber should consider

14 as additional evidence and there is no allegation that the -- at least in

15 the brief, there is no allegation that the Trial Chamber erred.

16 Therefore, it's not an allegation of an error by the Trial Chamber in

17 failing to take into consideration the anticipated post-sentencing

18 conduct but ground 7 is dependent on this court taking into consideration

19 additional evidence from which you could then determine whether the

20 quantity and quality is greater than that considered by the Trial

21 Chamber. That's the first point.

22 In response to that, there is no material before you from which

23 you could determine that. The additional evidence motion was dismissed.

24 Therefore, there is no material before you from which this Court could

25 enter into that exercise as this Court has already determined that

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Page 363

1 matter.

2 The second point --

3 JUDGE WEINBERG DE ROCA: Mr. Farrell just to let you flow that

4 you have three minutes left.

5 MR. FARRELL: Thank you. The second point is that the scope and

6 nature of the testimony was anticipated, both by the Prosecution and was

7 before the Trial Chamber.

8 And thirdly, this Court in its additional evidence decision has

9 concluded that the proof of cooperation and the execution of the terms of

10 the plea agreement, which included his post-sentencing conduct, is an

11 issue already taken into account by the Trial Chamber.

12 The one additional comment I wanted to make, if I may, related to

13 Judge Mumba's question regarding a question of procedure. In situations

14 where there is conduct post-sentencing which the Appeals Chamber may wish

15 to take into consideration, in my submission, the post-sentencing conduct

16 which you could take into consideration could only be one of two types:

17 one, where it's different than that which was anticipated and before the

18 Trial Chamber; or two, whether there is a failure to abide by the plea

19 agreement. If that's the case, I would submit that it would have to be

20 submitted under Rule 115, Judge Mumba, and not through a means of

21 judicial notice. The Appeals Chamber, I think it was in the Nikolic

22 case, just recently decided that judicial notice is only a matter of

23 proof, it's not a basis for admissibility and any evidence brought before

24 this court must meet the standards for admissibility first and then the

25 Court can determine, if admissible, what manner in which it may be

Page 364

1 presented.

2 Thank you. I'm sorry for taking longer.

3 JUDGE WEINBERG DE ROCA: No, it was perfect, 30 minutes to the

4 dot. I'm informed that the technician has to change the tape so we have

5 to stop for one minute.

6 I would like to ask the interpreters if they need a break or if

7 we can continue for I think it will be probably 20 minutes more or 30

8 minutes.

9 THE INTERPRETER: We can continue, Your Honour.

10 JUDGE WEINBERG DE ROCA: Thank you very much.

11 THE REGISTRAR: We can proceed, Your Honours.

12 JUDGE WEINBERG DE ROCA: Thank you. I turn to my colleagues.

13 Are there any questions? Any questions?

14 Mr. O'Sullivan, you have ten minutes.

15 MR. O'SULLIVAN: Thank you, Your Honour. I wish to only make one

16 point. The Chamber has had the benefit of full written submissions by

17 the parties on all these issues in the original brief and a reply and

18 response and a reply again by the appellant. I just wish to invite the

19 Chamber to recognise that in relation to the first grounds of appeal on

20 the scope of the indictment and the plea agreement, that we submit that

21 our -- the error we have identified in our written submissions and here

22 again this morning was an error of law that directly impacts on the

23 criminal culpability of Mr. Jokic's plea and therefore impacts directly

24 on his sentence. And I invite the Chamber, when it reviews all the

25 materials, to recognise that the Prosecution has acknowledged this error

Page 365

1 and that the error goes to the heart of his degree of personal guilt and

2 the Prosecution further concedes that this finding must have had an

3 impact upon sentence.

4 Those are the only additional submissions we wish to make and

5 with your leave, Mr. Jokic would like to briefly address you.

6 JUDGE WEINBERG DE ROCA: Thank you very much.

7 Mr. Jokic, you have now up to ten minutes to address the Court.

8 I remind you that the last Status Conference was held on November 18th

9 2004, and pursuant to Rule 65 bis (B), the next Status Conference would

10 have taken place 120 days later. The appeal was scheduled to be heard on

11 March 14. However, due to the absence of one of the judges was

12 postponed. Upon consultation, counsel for the appellant confirmed that

13 there were no matters to be raised pursuant to Rule 65 bis(B).

14 Nonetheless, you may now, if you wish, also take this opportunity

15 to express any concerns relating to the appeal, detention conditions and

16 your health. Please go ahead.

17 THE APPELLANT: [Interpretation] I have no complaints of that

18 nature, Your Honours. I only wish to address you in connection with my

19 appeal.

20 Your Honours, I am now even more convinced that my admission of

21 guilt for the events of the 6th of December 1991 in Dubrovnik is an

22 expression of conscience, humanity and responsibility for the civilian

23 victims and the destruction of cultural monuments in the Old Town of

24 Dubrovnik. In any case, it was the right and honourable thing to do.

25 I believe that only the facing of responsibility can lead to

Page 366

1 possible reconciliation and coexistence for the people on the territory

2 of the former Yugoslavia. I profoundly regret all the soldiers killed

3 and all the civilian victims and both sides who died as a consequence of

4 the self-willed actions of some officers under my command and units

5 subordinate to me whereby they violated the laws and customs of war.

6 Above all, I am profoundly aware of my own responsibility for

7 failing to ensure conditions that might have prevented the shelling of

8 the Old Town, and after it occurred, for failing to conduct a proper

9 investigation and punish the perpetrators.

10 I hope and trust that my example in accepting responsibility will

11 provide a model for others which will help all people of goodwill to

12 restore confidence and cooperation on the territory of the former

13 Yugoslavia.

14 Your Honours, thank you for your attention. Thank you very much.

15 JUDGE WEINBERG DE ROCA: Thank you very much. You may sit down,

16 Mr. Jokic.

17 Thanks to all of you for your submissions. We have come to the

18 end of the arguments in this case, and I would like to express my

19 appreciations to you all, counsel, interpreters, and the staff of court

20 management support section, for the assistance given to the Court.

21 The hearing stands adjourned and the Court will consider its

22 verdict and you will be notified in due course.

23 --- Whereupon the Appeal proceedings adjourned

24 at 11.27 a.m.