1 Tuesday, 30 August 2005
2 [Appeals Judgement]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 2.15 p.m.
6 JUDGE WEINBERG DE ROCA: Good afternoon to the interpreters, to
7 counsel for the Prosecution and Defence. Good afternoon, Mr. Jokic, and
8 the staff of the court management support section.
9 Mr. Frejabue, would you read the case, please.
10 THE REGISTRAR: Yes, thank you, Your Honour. Case number
11 IT-01-42/1-A, the Prosecutor versus Miodrag Jokic.
12 JUDGE WEINBERG DE ROCA: Thank you. I will now ask for the
13 appearances of the parties.
14 For the Defence, please.
15 MR. NIKOLIC: [Interpretation] Good afternoon, Your Honours. Good
16 afternoon, colleagues from the Prosecution. Mr. O'Sullivan, Ms. Nikolic,
17 and myself, Zarko Nikolic, we are representing today the Defence of
18 Admiral Mr. Jokic.
19 JUDGE WEINBERG DE ROCA: Thank you very much.
20 Appearances for the Prosecution, please.
21 MR. FARRELL: Good afternoon, Your Honours. Good afternoon to my
22 learned colleagues. Norman Farrell and Marie-Ursula Kind appearing
23 together with Susan Grogan our case manager. Thank you.
24 JUDGE WEINBERG DE ROCA: Thank you very much.
25 As the registrar announced, the case on our agenda is The
1 Prosecutor versus Miodrag Jokic. In accordance with the Scheduling Order
2 issued on 19 July 2005 today the Appeals Chamber will deliver its
3 judgement on sentencing appeal. Mr. Miodrag Jokic has appealed against
4 the sentencing judgement issued by Trial Chamber I of this International
5 Tribunal on 18 March 2004. The Prosecution has not appealed the
6 sentencing judgement.
7 This case relates to events which took place in Croatia, where
8 forces of the Yugoslav People's Army under command of, among others,
9 Miodrag Jokic shelled the Old Town of Dubrovnik from the early hours of
10 6 December 1991 until late that day. The Trial Chamber accepted the
11 Prosecution's position that the attack was not ordered by the Appellant
12 and that he had knowledge of the unlawful shelling and failed to prevent,
13 mitigate, stop, or punish the shelling. As a result of the shelling, two
14 civilians were killed and three civilians were wounded, numerous buildings
15 were destroyed, including institutions dedicated to religion, charity,
16 education, the arts and sciences, and historic monuments.
17 On the 27th August 2003, Miodrag Jokic pleaded guilty to the
18 Second Amended Indictment and the Trial Chamber entered a conviction
19 against him for six counts of violations of the laws or customs of war
20 pursuant to Article 3 of the Statute, including Count 1, murder; Count 2,
21 cruel treatment; Count 3, the unlawful attack on civilians; Count 4,
22 devastation not justified by military necessity; Count 5, the unlawful
23 attack on civilian objects; and Count 6, the destruction or willful damage
24 done to institutions dedicated to religion, charity, and education, the
25 arts and sciences, historic monuments, and works of art and science.
1 On 18 March, 2004, the Trial Chamber sentenced Mr. Jokic to seven
2 years of imprisonment. Mr. Jokic appealed his sentence on 16 April 2004
3 and the appeal hearing took place on 26 April 2005. Following the
4 practice of the International Tribunal, I will not read out the text of
5 the Judgement except for the disposition. Instead, I will summarise the
6 issues on this appeal and the findings of the Appeals Chamber. I
7 emphasise that this summary is not part of the written judgement which is
8 the only authoritative account of the Appeals Chamber's rulings and
9 reasons. Copies of the written Judgement will be made available to the
10 parties and to the public at the conclusion of this hearing. I will not
11 elaborate on the standard of review on appeal and the relevant provisions
12 on sentencing since I have already addressed that during my opening
13 statement at the appeal hearing.
14 The Appellant had initially raised seven grounds of appeal but on
15 30 June 2004 he withdrew his fourth ground of appeal. I will briefly
16 address the remaining six grounds of appeal in turn.
17 Under his first ground of appeal the Appellant submits that the
18 Trial Chamber erred in ruling that he is liable under Article 7(1) of the
19 Statute for aiding and abetting events prior to 6 December 1991 as it went
20 beyond what was pleaded in the second amended indictment and agreed upon
21 in the plea agreement.
22 The Appeals Chamber notes that the Trial Chamber was cognizant of
23 the fact that the Second Amended Indictment was limited to the events of
24 6 December 1991, and that the Trial Chamber accepted the Appellant's
25 guilty plea on the basis of the plea agreement.
1 The Appeals Chamber remarks that the findings of guilt entered by
2 the Trial Chamber for Counts 1 through 6 were unambiguously limited to the
3 Appellants acts and omissions that occurred on 6 December 1991. The
4 sentencing judgement made it clear that the Appellant was only being
5 sentenced on the basis of his conduct on 6 December 1991. The Trial
6 Chamber merely cited the Appellant's conduct concerning similar attacks on
7 23rd and 24th October and on 9th November 1991, in order to provide
8 context for the crimes committed on 6 December 1991. This context was
9 relevant in establishing the mens rea requirement for the conviction of
10 aiding and abetting. Accordingly, the Appeals Chamber is satisfied that
11 the Trial Chamber did not err in making a mere reference, and not a
12 finding on the crimes charged, to the events prior to 6 December 1991 in
13 its sentencing judgement.
14 Moreover, even if the Trial Chamber had erred in referring to the
15 earlier events this would not merit alteration of the sentencing judgement
16 by the Appeals Chamber as the Appellant has not demonstrated that the
17 sentence was affected by the Trial Chamber's alleged consideration of
18 conduct prior to 6 December 1991. This part of the Appellant's first
19 ground of appeal is dismissed.
20 The Appeals Chamber notes that the Appellant was convicted for his
21 role on 6 December 1991 under Article 7(1) and 7(3) of the Statute based
22 on same facts. The jurisprudence of the Appeals Chamber shows that
23 concurrent convictions for individual and superior responsibility in
24 relation to the same counts based on the same facts constitutes a legal
1 The Appeals Chamber is aware that the issue of concurrent
2 convictions has not been appealed and that the Appellant appealed only his
3 sentence. There is, however, an insoluble nexus between a conviction and
4 a sentence. Also, in the case of an error of law, the Appeals Chamber has
5 the discretionary power to correct this error proprio motu if the
6 interests of justice so require. The Appeals Chamber therefore holds
7 that, in accordance with settled jurisprudence, only one conviction under
8 each count can be entered pursuant to Article 7(1) of the Statute. Thus,
9 the Appeals Chamber vacates the Appellant's convictions for Counts 1 to 6
10 insofar as they are based on a finding of the Appellant's superior
11 responsibility under Article 7(3) of the Statute.
12 This, however, does not necessarily mean that a reduction of the
13 sentence is required. The Appeals Chamber holds that the Trial Chamber
14 was required to consider the Appellant's superior position as an
15 aggravating factor in sentencing as it was agreed upon by the parties and
16 accepted by the Trial Chamber that the Appellant held a leadership
17 position. Indeed, the Trial Chamber expressly considered the Appellant's
18 leadership position in its discussion of the aggravating circumstances.
19 Thus, the Trial Chamber fully recognised, as an aggravating factor, that
20 the Appellant held a position of authority and the power of a high-ranking
21 officer over others committing the crimes charged under Counts 1 through 6
22 as is reflected in the sentence imposed.
23 For the foregoing reasons, the Appeals Chamber concludes that its
24 vacating of the Trial Chamber's convictions of the Appellant as a superior
25 has no impact on the Appellant's sentence.
1 In his second ground of appeal, the Appellant submits that the
2 Trial Chamber erred by having recourse to provisions of the Criminal Code
3 of the former Yugoslavia which would not have been applicable to the range
4 of penalties that courts in the former Yugoslavia could have passed for
5 comparable crimes.
6 The Appellant claims that under the provisions of the Criminal
7 Code of the former Yugoslavia considered by the Trial Chamber, criminal
8 liability is limited to those who are direct perpetrators. Since his
9 criminal responsibility was incurred by omission, the Appellant submits
10 that the provisions referred to by the Trial Chamber are not applicable to
11 this case.
12 The Appeals Chamber finds that the Articles of the Criminal Code
13 of the former Yugoslavia the Trial Chamber referred to - which encompass
14 war crimes, means and modes to wage combat operations, and the protection
15 of cultural property - prohibit criminal conduct against legal values
16 which are also protected in the offences to which the Appellant pleaded
17 guilty. Moreover, the Appeals Chamber observes that the principles of
18 aiding and abetting as well as criminal liability by omission are
19 enshrined in the Criminal Code of the former Yugoslavia. Therefore, these
20 articles provide guidance on the general practice regarding prison
21 sentences in the courts of the former Yugoslavia concerning the acts and
22 omissions to which the Appellant pleaded guilty and for which he has been
23 convicted. The Appeals Chamber emphasises that although a Trial Chamber
24 should take into account the general practice regarding prison sentences
25 in the courts of the former Yugoslavia, it is not obliged to conform to
2 The Appeals Chamber notes that the Trial Chamber did not expressly
3 refer to all the articles of the Criminal Code of the former Yugoslavia
4 that might be relevant for the present case. However, the Appeals Chamber
5 considers that the Trial Chambers are not obliged to consider each and
6 every applicable provision of the laws of the former Yugoslavia.
7 Therefore, the Appeals Chamber finds that the Trial Chamber was correct in
8 its approach and dismisses the second ground of appeal.
9 Under his third ground of appeal, the Appellant alleges that the
10 Trial Chamber erred in law in deciding that, in the case of plea
11 agreements, it would primarily rely on mitigating factors agreed upon by
12 the parties. In his view the Trial Chamber departed from the standard set
13 out in the Celebici case, in which the Appeals Chamber found that
14 mitigating factors should be established by a defendant on the balance of
16 The Appeals Chamber is not satisfied that the Trial Chamber
17 wrongly departed from the balance of probabilities standard set out in the
18 Celebici appeal judgement. The Trial Chamber recalled the correct
19 standard and concluded that, in cases of plea agreements, it would
20 primarily rely on the mitigating factors agreed to by the parties. In
21 other words, the Trial Chamber logically relieved the Appellant from
22 discharging the burden of establishing mitigating circumstances on the
23 balance of possibilities, with respect to those mitigating circumstances
24 agreed upon by the parties.
25 Moreover, the Appellant submits that three mitigating factors -- I
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 apologise for the -- to the interpreters for having read too quickly.
2 Moreover, the Appellant submits that three mitigating factors were
3 identified solely by him in addition to those identified by the
4 Prosecution; namely, (1), his age; (2), five events regarding his conduct
5 prior to, during, and after the commission of the offence; and (3),
6 exceptional family circumstances. However, the Appeals Chamber finds that
7 all of these factors were considered by the Trial Chamber.
8 With respect to the Appellant's specific argument that the
9 post-conflict conduct is a "separate and distinct mitigating circumstance"
10 that should not be "comingled with remorse," the Appeals Chamber finds
11 that it was within the discretion of the Trial Chamber to consider the
12 Appellant's post-conflict conduct as an expression of his sincere remorse,
13 instead of assessing his post-conflict conduct as a distinct mitigating
15 Moreover, the Appeals Chamber finds the Trial Chamber correctly
16 weighed all the mitigating circumstances, both the ones agreed upon by the
17 parties and ones presented only by the Appellant. The third ground of
18 appeal is dismissed.
19 Under his fifth ground of appeal, the Appellant submits that the
20 Trial Chamber erred in not taking into account as a factor in mitigation
21 his health and his family situation which, in his view, are extraordinary
22 and amount to exceptional circumstances.
23 With respect to the Appellant's assertion that the Trial Chamber
24 incorrectly held that he shared the same family circumstances as other
25 accused, the Appeals Chamber observes that the Trial Chamber only provided
1 a reason as to why, in general, limited weight has been attached in
2 mitigation to factors such as the family situation of an accused. The
3 Trial Chamber did not, however, compare the Appellant's personal
4 circumstances to those of other accused.
5 With respect to the Appellant's argument that the Trial Chamber
6 disregarded the evidence before it, the Appeals Chamber finds that the
7 Trial Chamber correctly referred to the evidence presented by the
8 Appellant and thus took it into account. The Trial Chamber expressly
9 referred to the Appellant's written submissions which contain evidence
10 presented by the Appellant to show that his personal circumstances were of
11 an exceptional nature, including a confidential submission in that
12 respect. The Appeals Chamber finds that the Trial Chamber was under no
13 obligation to discuss the Appellant's personal circumstances in more
14 detail than it did, in particular in light of the fact that some of the
15 evidence proffered by the Appellant concerning his family circumstances is
16 of a confidential nature.
17 Moreover, the Appellant argues that, since in its orders on
18 provisional release, the Trial Chamber considered that his extraordinary
19 health and family considerations amounted to exceptional circumstances,
20 the Trial Chamber should have also held in the sentencing judgement that
21 his family circumstances were exceptional and attached weight to them as a
22 mitigating factor.
23 The Appeals Chamber does not agree. The Trial Chamber's
24 considerations when granting the Appellant's provisional release are not
25 necessarily relevant to its assessment of the circumstances in mitigation
1 of the Appellant's sentence. Whereas pursuant to Rule 65(B) of the Rules,
2 an accused may be provisionally released if the Trial Chamber is satisfied
3 that he or she will appear for trial and, if released, will not pose a
4 danger to any victim, witness, or other person; concerning the evaluations
5 of an accused's conduct in order to mete out an appropriate sentence, it
6 is open to a Trial Chamber to weigh the mitigating circumstances against
7 other factors, such as the gravity of the crime, the particular
8 circumstances of the case, and the form and degree of the participation of
9 the accused in the crime.
10 For the foregoing reasons, the Appeals Chamber dismisses the
11 Appellant's fifth ground of appeal.
12 In his sixth ground of appeal, the Appellant alleges that the
13 Trial Chamber erred in law and in fact and abused its discretion by
14 failing to consider the totality of the evidence presented by the parties
15 in relation to his good character and professionalism. The Appellant's
16 first argument is that some witnesses' testimonies, including the
17 testimonies of two investigators from the Office of the Prosecutor, were
18 not taken into account by the Trial Chamber. Secondly, the Appellant
19 submits that the Trial Chamber also failed to consider evidence of his
20 good character and personal integrity, such as his voluntary surrender,
21 his conduct while on provisional release, and his admission of guilt.
22 With respect to the alleged error concerning the witnesses'
23 testimonies, I will not go into detail and instead will only summarise the
24 main reasoning. The Trial Chambers are not required to articulate every
25 step of their reasoning in reaching particular findings, and failure to
1 list in a judgement each and every circumstance placed before them and
2 considered does not necessarily mean that they either ignored or failed to
3 evaluate the factor in question.
4 With respect to witnesses' testimonies, a Trial Chamber is in no
5 way obliged to refer to every phrase pronounced by a witness during his
6 testimony. Chambers may, where they deem appropriate, stress the main
7 parts of the testimony relied upon in support of a finding. A reference
8 to a certain portion of the witness's testimony is prima facie evidence
9 that the Trial Chamber was cognizant of the whole testimony and took it
10 into account.
11 The Appeals Chamber finds that the Trial Chamber was cognizant of
12 all the testimonies and took the relevant parts into account.
13 The Appellant furthermore alleges that the Trial Chamber should
14 have taken into account evidence of his good characteristic; namely, (1),
15 his voluntary surrender and the fact that he was the first officer of the
16 Yugoslav People's Army to voluntarily surrender without the framework of
17 the law on cooperation between the International Tribunal and the former
18 Federal Republic of Yugoslavia; (2), the fact that he has always complied
19 fully with the terms and conditions of his provisional release; (3), the
20 fact that he admitted his guilt; and (4), the fact that he apologised to
21 the Croatian Minister for Maritime Affairs and Foreign Affairs on the day
22 of the shelling and concluded a cease-fire the day after.
23 The Appeals Chamber finds that all of these factors were
24 considered by the Trial Chamber and taken into account, albeit not
25 specifically as evidence of the Appellant's good character. However, it
1 is within the Trial Chamber's discretion to consider this evidence as
2 indicative of the Appellant's sincere remorse and his cooperation with the
3 International Tribunal; the Trial Chamber was not bound to consider these
4 factors when assessing the Appellant's good character as well. Therefore,
5 the Appellant's sixth ground of appeal is dismissed.
6 Under his seventh ground of appeal, the Appellant does not allege
7 any error on the part of the Trial Chamber. Rather, he requests the
8 Appeals Chamber to consider his cooperation in the Strugar case after the
9 rendering of the sentencing judgement, as a factor in the mitigation in
10 the interests of justice. He relies on a finding by the Appeals Chamber
11 in the Kupreskic case in support of his request. However, the Kupreskic
12 case is not comparable with the case at hand. In the present case, the
13 Trial Chamber took into account the Appellant's cooperation with the
14 Prosecution as a factor in mitigation of his sentence, and qualified this
15 cooperation as being of exceptional importance. Moreover, the Trial
16 Chamber noted in the sentencing judgement that the parties had made
17 specific submissions to the Trial Chamber, and it referred to portions of
18 the sentencing hearing that confirm the possible value of the Appellant's
19 testimony for other cases, as well as his willingness to testify in future
20 cases. The Appeals Chamber thus concludes that the Trial Chamber was
21 fully aware of the cooperation that the Appellant had provided and could
22 provide in future cases, as realised later on in the Strugar case, and
23 took this fact into account.
24 Accordingly, the Appellant's request is dismissed.
25 I shall now read the operative paragraph of the Appeals Chamber
2 Mr. Jokic, would you please stand?
3 [Appellant stands up].
4 JUDGE WEINBERG DE ROCA: For the foregoing reasons, the Appeals
5 Chamber, pursuant to Article 25 of the Statute and Rules 117 and 118 of
6 the Rules of Procedure and Evidence: Noting the respective written
7 submissions of the parties and the arguments they presented at the hearing
8 of 26 April 2005, sitting in open session, vacates proprio motu, the
9 Appellant's conviction under Counts 1 through 6 insofar as they are based
10 on a finding of the Appellant's superior responsibility under Article 7(3)
11 of the Statute; dismisses all the grounds of appeal filed by the
12 Appellant; affirms the sentence of seven years' of imprisonment as imposed
13 by the Trial Chamber; and orders in accordance with Rule 103(C) and Rule
14 107 of the Rules, that Miodrag Jokic is to remain in the custody of the
15 International Tribunal pending the finalisation of arrangements for his
16 transfer to the state in which his sentence will be served.
17 Mr. Jokic, you may be seated.
18 [Appellant sits down]
19 JUDGE WEINBERG DE ROCA: Mr. Frejabue, would you deliver copies of
20 the judgement to the parties.
21 Thank you very much. The Appeals Chamber stands adjourned.
22 --- Whereupon the Appeals Judgement Hearing
23 adjourned at 2.42 p.m.