1 Wednesday, 8 December 2010
2 [Appeals Judgement]
3 [Open Session]
4 [The appellant entered court]
5 --- Upon commencing at 3.40 p.m.
6 JUDGE MERON: Good afternoon.
7 Registrar, will you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours.
9 This is Case IT-95-13/1-R.1, the Prosecutor versus Veselin
10 Sljivancanin. Thank you, Your Honours.
11 JUDGE MERON: Thank you.
12 Mr. Sljivancanin, can you clearly hear me and understand the
14 THE APPELLANT: [Interpretation] Good afternoon, Your Honours.
15 Good afternoon to everyone in the courtroom.
16 I can hear everything excellently, and I understand.
17 JUDGE MERON: Thank you. You may be seated.
18 [The appellant sits down]
19 THE APPELLANT: [Interpretation] Thank you.
20 JUDGE MERON: Appearances for the parties, first for the Defence
21 for Mr. Sljivancanin.
22 MR. LUKIC: [Interpretation] Good afternoon, Your Honours. Good
23 afternoon to everyone in the courtroom.
24 Mr. Sljivancanin is represented today by Novak Lukic,
25 attorney-at-law from Belgrade
1 JUDGE MERON: Thank you.
2 For the Prosecution.
3 MS. BRADY: Good afternoon, Your Honours.
4 Helen Brady appearing on behalf of the Prosecution, together with
5 Ms. Najwa Nabti and Mr. Kyle Wood.
6 JUDGE MERON: Thank you.
7 As the Registrar announced, the case on our agenda today is the
8 Prosecutor against Veselin Sljivancanin. In accordance with the
9 scheduling order issued on 1 December 2010
10 will deliver its review judgement. This oral summary does not constitute
11 any part of the official and authoritative judgement of the
12 Appeals Chamber, which is rendered in writing and will be distributed to
13 the parties at the close of the hearing. In addition, not every point
14 addressed in the judgement will be mentioned in this summary, which
15 focuses only on central issues.
16 Briefly, the background of this case is as follows:
17 Veselin Sljivancanin was born on 13th June 1953 in Pavez, Zabljak
18 municipality, in present-day Montenegro
19 major in the Yugoslav People's Army, or JNA. He also held the post of
20 head of the security organ of both the Guards Motorised Brigade and
21 Operational Group South, the latter of which is commonly referred to as
22 "OG South."
23 On 27 September 2007, Trial Chamber II issued a judgement
24 addressing individual criminal responsibility for the torture and murder
25 of more than 190 prisoners removed from Vukovar Hospital and brought to
1 Ovcara. More specifically, the Trial Chamber found that in the morning
2 of 20 November 1991
3 of whom had been involved in the hostilities, were removed by JNA
4 soldiers of OG South from Vukovar Hospital
5 barracks in Vukovar, to a hangar at Ovcara, near Vukovar, where they were
6 severely mistreated.
7 The Trial Chamber also found that Mile Mrksic, at the time a
8 colonel in the JNA, appointed Mr. Sljivancanin to evacuate Vukovar
9 Hospital and to be responsible for the transport and security of the
10 prisoners; that an order to withdraw the last remaining JNA troops
11 securing the prisoners was made by Mr. Mrksic in the early evening of 20
12 November 1991; and that this withdrawal was completed at no later than
13 9.00 p.m.
14 evening and night hours of 20/21 November 1991, prisoners were taken in
15 groups of some 10 to 20 from the hangar to a site located nearby where,
16 earlier that afternoon, a large hole had been dug. There,
17 Territorial Defence and paramilitary soldiers of OG South executed at
18 least 194 of them. The killings started after 9.00 p.m. and continued
19 until well after midnight
20 mass grave, and remained undiscovered until several years later.
21 The Trial Chamber concluded that Mr. Sljivancanin had failed to
22 protect the prisoners from mistreatment on 20 November 1991, prior to the
23 withdrawal of the JNA troops. It thus found Mr. Sljivancanin guilty of
24 aiding and abetting torture as a violation of the laws or customs of war,
25 and sentenced him to five years' imprisonment. The Trial Chamber did
1 not, however, enter a conviction against Mr. Sljivancanin in relation to
2 the murder of the 194 prisoners.
3 On 5 May 2009
4 Sljivancanin appeal judgement, which, inter alia, upheld
5 Mr. Sljivancanin's conviction for aiding and abetting torture as a
6 violation of the laws or customs of war, but found that his sentence of
7 five years' imprisonment did not adequately reflect the level of gravity
8 of the crimes committed. The Appeals Chamber also entered an additional
9 conviction, finding, Judges Pocar and Vaz dissenting, that
10 Mr. Sljivancanin aided and abetted the murder of 194 prisoners, as a
11 violation of the laws or customs of war. On the basis of these findings,
12 the Appeals Chamber quashed Mr. Sljivancanin's original sentence of five
13 years' imprisonment and imposed, Judges Pocar and Vaz dissenting, a new
14 sentence of 17 years' imprisonment.
15 Underlying the additional conviction for murder was a new factual
16 finding relating to Mr. Sljivancanin's mens rea for aiding and abetting
17 murder. Relying on circumstantial evidence, the Appeals Chamber
18 concluded that during a conversation between Sljivancanin and Mrksic in
19 the night of 20 November 1991
20 that he had withdrawn the JNA protection from the prisoners held at
21 Ovcara. On the basis of this analysis, the Appeals Chamber concluded
22 that Mr. Sljivancanin possessed the mens rea for aiding and abetting
23 murder as a violation of the laws or customs of war.
24 On 28 January 2010
25 review of the Mrksic and Sljivancanin appeal judgement. In his
1 application, Mr. Sljivancanin asserted that Miodrag Panic, a
2 lieutenant-colonel and chief of staff of the Guards Motorised Brigade and
3 OG South, was prepared to offer testimony about the conversation which
4 would exonerate Mr. Sljivancanin with respect to the additional
5 conviction for murder. Mr. Sljivancanin asserted that this testimony
6 constituted a new fact, in the context of Article 26 of the Statute of
7 the Tribunal and Rules 119 and 120 of the Rules of Procedure and Evidence
8 of the Tribunal. The application sought, inter alia, review of the
9 Mrksic and Sljivancanin appeal judgement and the quashing of
10 Mr. Sljivancanin's additional conviction.
11 The Appeals Chamber, Judge Pocar dissenting, ordered an oral
12 hearing on 3 June 2010
13 Pre-Review Hearing, Mr. Panic testified that on the night of 20 November
14 1991, he was in a position to follow the conversation and that Mr. Mrksic
15 did not inform Mr. Sljivancanin of the withdrawal order.
16 On 14 July 2010
17 request for a review hearing, explaining that the new information
18 provided by Mr. Panic concerning the conversation constituted a new fact
19 that, if proved, would lead to a miscarriage of justice by eliminating
20 the basis for the Mrksic and Sljivancanin appeal judgement's conclusion
21 that Mr. Sljivancanin possessed the mens rea for aiding and abetting
22 murder as a violation of the laws or customs of war.
23 On 12 October 2010
24 at which Prosecution expert witness Reynaud Theunens gave testimony and
25 the parties made oral submissions.
1 The Appeals Chamber finds that Mr. Panic's testimony at the
2 Pre-Review Hearing was credible with respect to both the conversation and
3 his motives for coming forward to testify. His descriptions of these two
4 points was coherent and reasonably detailed, and his demeanour did not
5 suggest that he was trying to conceal the truth. In reaching this
6 conclusion, the Appeals Chamber is mindful that even though the
7 Prosecution has not presented evidence which directly contradicts
8 Mr. Panic's account of the conversation, it has raised a number of
9 contentions concerning Mr. Panic's general credibility that warrant
10 serious consideration.
11 The Prosecution's most direct challenge to Mr. Panic's testimony
12 concerning the conversation is its contention that Mr. Panic's testimony
13 at the Pre-Review Hearing contradicts certain of his prior statements.
14 The Appeals Chamber finds, however, that the statements referred to by
15 the Prosecution are either compatible with Mr. Panic's testimony at the
16 Pre-Review Hearing or that the differences can be explained by the
17 context in which Mr. Panic made them. Similarly, minor inconsistencies
18 between Mr. Panic's testimony at the Pre-Review Hearing, the
19 Trial Chamber's findings, and Mr. Sljivancanin's testimony before the
20 Trial Chamber are not significant.
21 The Appeals Chamber considered with particular attention the
22 Prosecution's submission that Mr. Panic's testimony is tainted by a
23 self-interested desire to reduce the chances of being prosecuted for
24 crimes he may have personally committed. However, the Appeals Chamber
25 discerns no additional substantive protection from criminal prosecution
1 that Mr. Panic could have anticipated gaining through his participation
2 in these review proceedings. The Appeals Chamber notes that as a former
3 witness, Mr. Panic was doubtless aware that the Prosecution might seek to
4 publicly highlight his own potential criminal liability during any review
5 proceedings, potentially drawing the attention of prosecutors in national
6 jurisdictions. Had Mr. Panic been motivated by the desire to reduce his
7 risk of criminal prosecution, as the Prosecution suggests, he would
8 presumably not have contacted Mr. Sljivancanin's Defence team and offered
9 to testify in the review proceedings.
10 The Appeals Chamber notes that in his testimony before the
11 Appeals Chamber, Mr. Panic has generally been reluctant to assign blame
12 for the crimes committed against the prisoners. However, the
13 Appeals Chamber considers that the Prosecution's allegation that he is
14 biased are somewhat speculative. Mr. Panic's testimony at the
15 Pre-Review Hearing did little to portray the JNA, its units, Mr. Mrksic,
16 Mr. Sljivancanin, or himself in a favourable light.
17 The Prosecution submits that aspects of Mr. Panic's testimony not
18 directly related to the conversation are implausible, especially with
19 respect to when he learned of the order to withdraw JNA troops, and that
20 this undermines his overall credibility. In particular, the Prosecution
21 asserts that Mr. Panic's account of actions taken by officers of OG South
22 is at odds with the procedures and actions required by JNA doctrine.
23 However, the Appeals Chamber recalls the Trial Chamber's finding that the
24 facts of this case disclose frequent non-observance of normal JNA
25 procedures and standards, at all levels, affecting matters as varied as
1 the very establishment and structure of OG South to the observance of the
2 chain of command. In these circumstances, the variations between the
3 actions Mr. Panic describes and those prescribed by JNA doctrine do not
4 necessarily undermine Mr. Panic's credibility with respect to the
6 The Prosecution also asserts that the contrast between the
7 operational exigencies within OG South and Mr. Panic's testimony of his
8 delayed discovery of the order to withdraw JNA troops, as well as the
9 discrepancies between Mr. Panic's behaviour on 20 and 21 November 1991,
10 call Mr. Panic's overall credibility into question. The Prosecution's
11 evidence raises significant questions about the veracity of Mr. Panic's
12 testimony regarding issues other than the conversation, such as his
13 actions on 21 November 1991
14 Mr. Panic's testimony, both during the review proceedings and before the
15 Trial Chamber, may have been influenced by Mr. Panic's desire to protect
16 himself from possible prosecution.
17 However, the Appeals Chamber recalls that no convincing motive
18 has been presented for Mr. Panic to volunteer false testimony concerning
19 the conversation. Indeed, as the Appeals Chamber has previously noted,
20 it appears that Mr. Panic's decision to testify in the review proceedings
21 regarding the conversation quite possibly went against his personal
22 interest. The Appeals Chamber further recalls its finding that
23 Mr. Panic's testimony regarding the conversation was coherent and that
24 Mr. Panic's demeanour did not suggest he was untruthful. In this
25 context, the Appeals Chamber finds that Mr. Panic's credibility with
1 respect to the conversation is not undermined by the potential
2 discrepancies in other parts of his evidence.
3 For the foregoing reasons, the Appeals Chamber finds that
4 Mr. Panic's testimony is credible with respect to the conversation, and
5 thus that the new fact testified to by Mr. Panic has been proved. The
6 Appeals Chamber recalls its prior finding that the impact of the new fact
7 alleged by Mr. Panic, if proved, is such that to ignore it would lead to
8 a miscarriage of justice. In this respect, the Appeals Chamber notes
9 that the additional conviction for murder was premised on both a
10 delineation of Mr. Sljivancanin's duty to protect the prisoners and the
11 Appeals Chamber's finding that Mr. Sljivancanin possessed the mens rea to
12 aid and abet murder as a violation of the laws and customs of war. The
13 Appeals Chamber further observes that its finding concerning
14 Mr. Sljivancanin's mens rea rested on the conclusion that the only
15 reasonable interpretation from the available circumstantial evidence was
16 that Mr. Mrksic informed Mr. Sljivancanin of the withdrawal order during
17 the conversation. The new fact testified to by Mr. Panic renders this
18 latter inference untenable, and thus undermines the Mrksic and
19 Sljivancanin appeal judgement's finding that Mr. Sljivancanin was guilty
20 of aiding and abetting murder as a violation of the laws and customs of
21 war. Accordingly, the Appeals Chamber vacates the additional conviction
22 for murder.
23 The Appeals Chamber recalls that in the Mrksic and Sljivancanin
24 appeal judgement, it found that the sentence of five years' imprisonment
25 for aiding and abetting torture imposed by the Trial Chamber did not
1 adequately reflect the level of gravity of the crimes committed by
2 Mr. Sljivancanin. The Appeals Chamber proceeded to quash
3 Mr. Sljivancanin's original sentence of five years' imprisonment and
4 imposed, Judges Pocar and Vaz dissenting, a new sentence of 17 years'
5 imprisonment. Because the Appeals Chamber has now vacated the additional
6 conviction for murder, which constituted a partial basis for the increase
7 in Mr. Sljivancanin's sentence, the Appeals Chamber must consider whether
8 the sentence of 17 years' imprisonment should be revised.
9 The Appeals Chamber considers that the reversal of the additional
10 conviction for murder represents a significant reduction in
11 Mr. Sljivancanin's culpability and calls for a revision in sentence. The
12 Appeals Chamber notes, however, that Mr. Sljivancanin's mistreatment of
13 the prisoners was an extremely serious crime.
14 I will now read out in full the disposition of the
15 Appeals Chamber's review judgement.
16 Mr. Sljivancanin, will you please stand?
17 [The appellant stands up]
18 JUDGE MERON: For the foregoing reasons, the Appeals Chamber,
19 pursuant to Article 26 of the Statute and Rules 119 and 120 of the Rules;
20 Noting the respective written submissions of the parties and the
21 arguments they presented at the Review Hearing;
22 Sitting in open session;
23 Grants the remaining portions of the application;
24 Vacates Veselin Sljivancanin's conviction for aiding and abetting
25 the murder of 194 prisoners;
1 Squashes Veselin Sljivancanin's sentence of 17 years of
2 imprisonment imposed by the Appeals Chamber, and imposes, Judge Pocar
3 dissenting, a sentence of 10 years, subject to credit being given under
4 Rule 101(C) of the Rules for the period already spent in detention; and
5 Confirms that the Mrksic and Sljivancanin appeals judgement
6 remains in force in all other respects.
7 Judge Meron attaches a separate opinion.
8 Judge Guney attaches a separate opinion.
9 Judge Pocar attaches a partially dissenting opinion.
10 Mr. Sljivancanin, you may be seated.
11 [The appellant sits down]
12 JUDGE MERON: I now request the Registrar to please deliver
13 copies of the judgement to the parties in this case.
14 This hearing of the Appeals Chamber of the International Criminal
15 Tribunal for the former Yugoslavia
16 --- Whereupon the Appeals Judgement
17 concluded at 4.08 p.m.