Tribunal Criminal Tribunal for the Former Yugoslavia

Page 782

1 Tuesday, 20 February 2001

2 [Judgement on Appeal]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.30 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: The Prosecutor versus Zejnil Delalic, Zdravko

8 Mucic, Hazim Delic, and Esad Landzo. Case number IT-96-21-A.

9 JUDGE HUNT: Appearances for the Prosecution.

10 MR. YAPA: May it please Your Honours. I appear for the

11 Prosecution. I am Upawansa Yapa. I appear for the Prosecution with

12 Mr. Norman Farrell, Ms. Sonja Boelaert-Suominen, and Mr. Roeland Bos.

13 JUDGE HUNT: Thank you.

14 For Mr. Delalic.

15 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman.

16 I appear on behalf of Mr. Zejnil Delalic, who is anxiously awaiting a

17 phone call from me in Konjic. Thank you.

18 JUDGE HUNT: For Mr. Delic.

19 MR. KARABDIC: I am Salih Karabdic from Sarajevo. My colleague

20 Thomas Moran from Houston. We represent Hazim Delic.

21 JUDGE HUNT: Thank you.

22 For Mr. Mucic.

23 MR. KUZMANOVIC: Good afternoon, Your Honours. Tomislav

24 Kuzmanovic and Howard Morrison here on behalf of Mr. Mucic.

25 JUDGE HUNT: And for Mr. Landzo.

Page 783

1 MS. SINATRA: Good afternoon, Your Honours. I'm Cynthia Sinatra,

2 and along with Peter Murphy, we represent Esad Landzo.

3 JUDGE HUNT: Thank you.

4 The Appeals Chamber is sitting today to deliver judgement in an

5 appeal from a judgement from a Trial Chamber, given in a case which has

6 been known as the Celebici case. The Trial Chamber was constituted by

7 Judge Karibi-Whyte, who presided, Judge Odio-Benito, and Judge Jan.

8 The Trial.

9 The trial related to events which took place in 1992 in a prison

10 camp near the town of Celebici in central Bosnia and Herzegovina. The

11 four accused in this case, Zejnil Delalic, Zdravko Mucic, Hazim Delic, and

12 Esad Landzo, were charged with numerous counts of grave breaches of the

13 Geneva Conventions of 1949 under Article 2 of the Tribunal's Statute and

14 of violations of the laws or customs of war under Article 3. The victims

15 were the Bosnian Serb detainees in the Celebici camp.

16 Delalic was alleged to have coordinated the activities of the

17 Bosnian Muslim and Bosnian Croat forces in the area and later to have been

18 the Commander of the First Tactical Group of the Bosnian army. He was

19 alleged in that capacity to have had authority over the Celebici camp.

20 The Trial Chamber found him not guilty on all counts, on the basis that he

21 did not have sufficient command and control over the Celebici camp and its

22 guards to found his criminal responsibility as a superior for the crimes

23 which they committed in the camp.

24 Mucic was found by the Trial Chamber to be the Commander of the

25 Celebici camp, and he was found guilty under the principles of superior

Page 784

1 responsibility for crimes committed by his subordinates, including murder,

2 torture, and inhuman treatment. He was also found guilty of personal

3 responsibility for the unlawful confinement of civilians. Mucic was given

4 a total sentence of seven years.

5 Delic was found by the Trial Chamber to have acted as the Deputy

6 Commander of the camp, and he was found guilty on the basis of personal

7 responsibility for crimes including murder, torture, and inhuman

8 treatment. He was given a total sentence of twenty years.

9 Landzo was found by the Trial Chamber to be a guard at the camp,

10 and he was found guilty of committing offences including murder, torture,

11 and cruel treatment. He was given a total sentence of fifteen years'

12 imprisonment.

13 The Appeal.

14 The three convicted accused, Mucic, Delic, and Landzo, filed

15 appeals against the Trial Chamber's judgement. The Prosecution also filed

16 an appeal against the judgement on a number of grounds, including grounds

17 of appeal relating to the acquittal of Delalic. The four appellants

18 between them filed a total of 48 grounds of appeal. Certain of the

19 grounds of appeal of the three convicted appellants related to the same

20 subject matter, and they were therefore dealt with together in the hearing

21 of oral submissions and in the written judgement delivered today.

22 For the purposes of this hearing, I propose to summarise briefly

23 the conclusions of the Appeals Chamber on the various grounds of appeal,

24 grouped in the same order as they are dealt with in the judgement. I

25 emphasise that this is a summary only, and that it forms no part of the

Page 785

1 judgement which is delivered. The only authoritative account of the

2 Appeals Chamber's conclusions, and of its reasons for those conclusions,

3 is to be found in the written judgement, copies of which will be made

4 available to the parties at the conclusion of this hearing.

5 Article 2 of the Statute.

6 The convicted appellants raised three issues in relation to the

7 legal conditions for the application of Article 2 of the Statute, which

8 gives to the Tribunal jurisdiction over grave breaches of the Geneva

9 Conventions of 1949.

10 It is established in the Tribunal's jurisprudence that the

11 Prosecution must prove the existence of an international armed conflict in

12 relation to any offences charged under Article 2. The Trial Chamber found

13 that the armed conflict in Bosnia and Herzegovina at the relevant time was

14 international, as the Bosnian Serb forces fighting in Bosnia and

15 Herzegovina were under the control of the Federal Republic of Yugoslavia.

16 The Appeals Chamber has reaffirmed its Tadic Conviction Appeal Judgement,

17 which had been followed in its Aleksovski Appeal Judgement and which held

18 that what must be established by the Prosecution is that the foreign

19 intervening party was in overall control of the local forces.

20 The Appeals Chamber has reiterated that it will follow the ratio

21 decidendi of its previous decisions unless there are cogent reasons in the

22 interests of justice to depart from them. It considers that there is no

23 reason to depart from the decision in its Tadic Conviction Appeal

24 Judgement as to the relevant standard of control for this purpose. The

25 Appeals Chamber has expressed additional reasons as to why that

Page 786

1 interpretation was correct, and it is satisfied that the Trial Chamber's

2 factual determination on this issue was consistent with the overall

3 control standard which had been stated.

4 The appellants also challenged the Trial Chamber's finding that,

5 for the purposes of Article 2 of the Statute, the victims were persons

6 protected under the relevant Geneva Convention. In the Tadic Conviction

7 Appeal Judgement, the Appeals Chamber held that "a person may be accorded

8 protected person status, notwithstanding the fact that he is of the same

9 nationality as his captors," a ruling subsequently endorsed by the Appeals

10 Chamber in Aleksovski. The Appeals Chamber has concluded that there is no

11 reason to depart from this interpretation, and it has confirmed that the

12 "nationality of the victims for the purpose of the application of Gevena

13 Convention IV should not be determined on the basis of formal national

14 characterisations," but that the nationality should take into account the

15 differing ethnicities of the victims and the perpetrators and their bonds

16 with a foreign intervening state. The Appeals Chamber is satisfied that

17 the Trial Chamber's findings were consistent with this interpretation.

18 Delic also challenged the Tribunal's jurisdiction to prosecute

19 grave breaches of the Geneva Conventions because, it was submitted, Bosnia

20 and Herzegovina was not a party to the conventions until after the

21 relevant events, having acceded to them subsequently. The Appeals Chamber

22 has held that Bosnia and Herzegovina succeeded to the Geneva Conventions,

23 with the effect that it is considered to be a party to the treaty from the

24 date of its succession or independence, which was prior to the relevant

25 events. The Appeals Chamber has also stated that, even without a formal

Page 787

1 act of succession, Bosnia and Herzegovina would automatically have

2 succeeded to the Geneva Conventions, as they are treaties of a universal

3 multilateral character relating to fundamental human rights.

4 Common Article 3 and Article 3 of the Statute.

5 The appellants also challenged the jurisdiction of the Tribunal to

6 prosecute violations of Article 3 common to the Geneva Conventions under

7 Article 3 of the Statute. The Appeals Chamber has concluded that there is

8 no reason to depart from its Tadic Jurisdiction Decision, which held that

9 the violations of the laws or customs of war which may fall within Article

10 3 of the Statute of the Tribunal include violations of Common Article 3,

11 that these violations give rise to individual criminal responsibility, and

12 that they may be prosecuted whether committed in internal or international

13 conflicts. It has expressed additional reasons as to why that decision

14 was correct.

15 Command Responsibility.

16 Mucic was convicted under Article 7.1 for his superior authority

17 as Commander of the Celebici camp for the crimes committed there. He

18 argued that command responsibility is limited to de jure commanders, or

19 those superiors with control over subordinates equivalent to such de jure

20 authority. The Appeals Chamber has rejected that argument, accepting that

21 a position of de facto command may be sufficient to establish the

22 necessary superior-subordinate relationship, as long as the relevant

23 degree of control over subordinates is established. The relevant

24 superior-subordinate relationship is established where the superior has

25 effective control over the persons committing the underlying violations of

Page 788

1 international humanitarian law, in the sense of having the material

2 ability to prevent or punish the commission of these offences.

3 Mucic also challenged the sufficiency of the evidence to establish

4 that he was a de facto commander. The Appeals Chamber has held that, on

5 the evidence before the Trial Chamber, it was open to a reasonable

6 tribunal of fact to find that Mucic exercised powers of control sufficient

7 to constitute the exercise of de facto authority over the camp, and

8 therefore that no basis for reviewing the Trial Chamber's findings of fact

9 had been made out.

10 The Prosecution appealed against the Trial Chamber's

11 interpretation of the requirement, in Article 7.3, that a superior "knew

12 or had reason to know" that a subordinate is about to commit crimes or had

13 done so. The Appeals Chamber has concluded that the phrase "reason to

14 know" in Article 7.3 means that a superior will be charged with knowledge

15 of subordinates' offences if information of a general nature was available

16 to him which would have put him on notice of those offences. The Appeals

17 Chamber is satisfied that the Trial Chamber's conclusions on this issue

18 were consistent with that interpretation.

19 The Prosecution also contended that the ability of an accused to

20 exercise forms of influence should suffice to establish the relevant

21 superior-subordinate relationship. The Appeals Chamber has concluded

22 that, whilst indirect as well direct relationships of subordination will

23 suffice, the relevant standard of effective control over subordinates must

24 be established, and that any forms of influence which fall short of such

25 control would not suffice. The Appeals Chamber is satisfied that, on the

Page 789

1 evidence before the Trial Chamber, it was open to a reasonable tribunal of

2 fact to acquit Delalic on the basis that he was not a superior in relation

3 to the Celebici camp and those working there.

4 Unlawful Confinement of Civilians.

5 Both Mucic and the Prosecution filed grounds of appeal relating to

6 the charges of unlawful confinement of civilians. Mucic challenged his

7 conviction for that offence, and the Prosecution challenged the acquittal

8 of Delalic and Delic of those offences.

9 The Trial Chamber concluded that the offence of unlawful

10 confinement of civilians is committed:

11 first, when civilians are involuntarily confined in breach of

12 Article 42 of Geneva Convention IV, which provides that civilians may only

13 be detained where there are reasonable grounds to believe that the

14 security of the Detaining Power makes it absolutely necessary; and

15 secondly, when civilians are detained without compliance with

16 Article 43 of the Geneva Convention, which provides that their detention

17 must be reviewed by an appropriate court or administrative board.

18 The Appeals Chamber has confirmed the Trial Chamber's definition

19 of the offence, and it has accepted that, on the evidence before the Trial

20 Chamber, it was open to a reasonable tribunal of fact to find that the

21 detainees in the Celebici camp were unlawfully detained.

22 The Appeals Chamber has also confirmed that the Prosecution does

23 not have to establish that a person is in a position of superior authority

24 before he can be found guilty of direct responsibility for this offence

25 under Article 7.1 of the Statute, but that a prison guard with no

Page 790

1 authority to release prisoners will not be guilty of the offence by virtue

2 only of his failure to take unauthorised steps to release them.

3 The Appeals Chamber has dismissed the Prosecution appeal against

4 the acquittal of Delalic and Delic on this charge, on the basis that the

5 Prosecution has failed to identify any evidence before the Trial Chamber

6 which demonstrated that a finding of guilty was the only reasonable

7 conclusion to be drawn. As to the appeal by Mucic against his conviction

8 on this charge, the Appeals Chamber has held that, on the evidence before

9 the Trial Chamber, it was open to a reasonable tribunal of fact to find

10 that he had some authority to release prisoners, that he had failed to

11 release those civilians whom he knew to be unlawfully detained because

12 they had not received the necessary procedural review of their detention,

13 and that he was therefore guilty of this offence.

14 Cumulative Convictions.

15 Delic and Mucic challenged their convictions upon charges based

16 upon the same conduct and alleging both grave breaches of the Geneva

17 Conventions under Article 2 of the Statute and violations of the laws or

18 customs of war under Article 3. This was the first time that the issue of

19 cumulative convictions has arisen for the express consideration of the

20 Appeals Chambers.

21 The Appeals Chamber has concluded that reasons of fairness to the

22 accused, and the consideration that only distinct crimes justify

23 cumulative convictions, require that cumulative convictions are

24 permissible only if each statutory provision involved has a materially

25 distinct element not contained in the other. The Appeals Chamber has

Page 791

1 concluded, by majority, that this assessment of the elements of the

2 offences must take into account all of the elements of the offences,

3 including the chapeaux (or legal prerequisite elements) of each Article of

4 the Statute.

5 Where this test is not met, a decision must be made in relation to

6 which offence it will enter a conviction, on the basis that the conviction

7 must be for the offence containing the more specific provision. Where, as

8 in the present case, the evidence establishes the guilt of an accused

9 based upon the same conduct under both Article 2 and Article 3 of the

10 Statute, the conviction must be entered for the offence under Article 2.

11 The challenge by Delic and Mucic has therefore been upheld, and

12 the charges against them under Article 3 have been dismissed. As Landzo

13 similarly received cumulative convictions under Articles 2 and 3, the

14 charges against him under Article 3 have also been dismissed,

15 notwithstanding that he did not challenge them.

16 In a separate and dissenting opinion, Judge Hunt and Judge

17 Bennouna have agreed with the majority that cumulative convictions should

18 be permissible only where each offence has a materially different element

19 not contained in the other, but they have proposed different tests for

20 determining whether this was so in the particular case and, where

21 cumulative convictions are not permissible, for determining which offence

22 should carry the conviction. These tests would in some cases have

23 produced a different result.

24 As the sentencing outcome in respect of each of the three

25 convicted accused may have been different had the Trial Chamber not

Page 792












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts













Page 793

1 imposed multiple convictions, the issue of resentencing has been remitted

2 to a new Trial Chamber to be designated by the President of the Tribunal.

3 Delic - Factual Issues.

4 Delic challenged his convictions upon ten of the counts against

5 him, involving five separate incidents, on the basis that the Trial

6 Chamber had erred in its relevant factual findings.

7 In the matter of the murder of Scepo Gotovac, one of the detainees

8 in the Celebici camp, the Appeals Chamber has concluded that the Trial

9 Chamber's conclusion that Delic participated in the beating which was

10 responsible for Mr. Gotovac's death was not open on the evidence before

11 it. The convictions relating to this incident have been quashed and

12 verdicts of not guilty entered. In relation to the other four incidents,

13 the Appeals Chamber has concluded that, on the evidence before the Trial

14 Chamber, it was open to a reasonable tribunal of fact to find him guilty

15 of the offences charged.

16 The Prosecution Interviews With Mucic.

17 Mucic challenged the admission into evidence of interviews

18 conducted with him by investigators from the Office of the Prosecutor

19 following his arrest. He submitted that the Trial Chamber should have

20 found that he had not voluntarily waived his right to counsel under the

21 Tribunal's Statute and Rules, and that it should therefore have excluded

22 the evidence obtained as a result of the interviews. Mucic also claimed

23 that the Trial Chamber erred in refusing to issue a subpoena to the

24 interpreter present at these interviews to give evidence of any

25 conversation between the investigators and himself which took place before

Page 794

1 the interviews started and which may have led to the waiver.

2 The Appeals Chamber is not satisfied that any error has been

3 demonstrated in the Trial Chamber's refusal to issue a subpoena to the

4 interpreter to give evidence. It has stated that a voir dire procedure

5 could be of assistance, in appropriate cases, in determining any factual

6 issues relating to the admissibility of evidence such as these, but that

7 the Trial Chamber committed no error in the exercise of its discretion in

8 not adopting that procedure in the absence of any clear indication that

9 the accused would give evidence in relation to those issues.

10 The Appeals Chamber is satisfied that, on the evidence before the

11 Trial Chamber, it was open to a reasonable tribunal of fact to find that

12 Mucic had expressed the wish to be interviewed without counsel, and that

13 the Trial Chamber had accordingly not erred in the exercise of its

14 discretion to allow the evidence to be tendered on that basis.

15 Dimished Mental Responsibility.

16 Before the trial, Landzo gave notice under the Tribunal's Rules of

17 Procedure and Evidence that he would be relying upon the special defence

18 of diminished mental responsibility, and he submitted that such a defence

19 amounted to a complete defence to the offences with which he had been

20 charged, leading to an acquittal.

21 Landzo argued that the Trial Chamber erred by refusing to define

22 the "special defence" in advance of the evidence being given in support of

23 it. The Appeals Chamber has held that it is no part of a Trial Chamber's

24 obligation to define such issues in advance, and that in any event, no

25 prejudice had been established as resulting from that refusal.

Page 795

1 Landzo also challenged the Trial Chamber's rejection of the

2 "special defence" as having been inconsistent with the great weight of

3 the evidence. The Appeals Chamber has held that an accused's diminished

4 mental responsibility is relevant to the sentence to be imposed, but it is

5 not a defence to offences charged under the Tribunal's Statute.

6 Rule 67(A)(ii)(b) must therefore be interpreted as referring to diminished

7 mental responsibility where it is raised by the defendant as a matter in

8 mitigation of sentence. The Appeals Chamber has also held that, in any

9 event, on the evidence before the Trial Chamber, it was open to a

10 reasonable tribunal of fact to reject the evidence of Landzo as to his

11 state of mind upon which his psychiatrist witnesses relied, and

12 therefore - as the Trial Chamber did - to reject their opinion that he had

13 suffered from a diminished mental responsibility.

14 Selective Prosecution.

15 Landzo challenged his conviction upon the basis that he was the

16 victim of selective prosecution based on discriminatory grounds.

17 In 1998, the Office of the Prosecutor withdrew indictments against

18 a number of low-ranking accused as a result of a changed prosecutorial

19 strategy. Landzo alleged that the continued maintenance of the charges

20 against him was discriminatory, as he was a young Muslim camp guard and

21 the others against whom indictments had been withdrawn were all

22 non-Muslims of Serb ethnicity. He contends that he was prosecuted as a

23 "representative" of the Bosnian Muslims.

24 The Appeals Chamber has held that, whilst the Prosecutor has a

25 wide discretion in relation to prosecutorial strategy, this discretion is

Page 796

1 not unlimited. However, Landzo had not discharged his burden of

2 establishing any abuse of the prosecutorial discretion. He has not

3 demonstrated that his Prosecution was continued for any impermissible

4 motive or that other accused, similarly situated to himself, were not

5 prosecuted. At the time of the dismissal of the indictments against other

6 accused, none of whom were in the custody of the Tribunal, Landzo's trial

7 was well under way. The continuation of the proceedings against him was

8 consistent with the policy of the Prosecutor to prosecute not only those

9 holding higher levels of possibility but also those "personally

10 responsible for exceptionally brutal or otherwise extremely serious

11 offences."

12 Judge Karibi-Whyte.

13 Landzo challenged the fairness of his trial upon the basis that

14 the Presiding Judge, Judge Karibi-Whyte, had been "asleep during

15 substantial portions of the trial." At a late stage of the appellate

16 proceedings, Delic and Mucic adopted this ground of appeal. The burden of

17 the argument, however, was left to Landzo. The parties agreed that the

18 relevant principle was that proof that a Judge slept through part of the

19 proceedings or was otherwise not completely attentive to them is a matter

20 which, if it causes actual prejudice to a party, may affect the fairness

21 of the proceedings to such a degree as to give rise to a right to a new

22 trial or other adequate remedy.

23 Both Landzo and the Prosecution selected, from the audiovisual

24 records of the trial produced by the courtroom cameras generally focused

25 on the Judges' bench, those portions of the records upon which they relied

Page 797

1 in support of this ground and in opposition to it. The written

2 submissions filed by Landzo contained extensive and detailed descriptions

3 of what was said to be seen and heard on the videotapes. Before the oral

4 hearing, the Appeals Chamber viewed those portions upon which the parties

5 relied. The Appeals Chamber has concluded that the descriptions given

6 were both highly coloured and gravely exaggerated, and that they appeared

7 to have been given with a reckless indifference to the truth.

8 The Appeals Chamber has found that the appellants have manifestly

9 failed to establish the allegation that Judge Karibi-Whyte was "asleep

10 during substantial portions of the trial," but that the portions of the

11 videotapes relied upon by Landzo nevertheless demonstrated a recurring

12 pattern of behaviour where the Judge appears not to have been fully

13 conscious of the proceedings for short periods of time. These periods

14 were usually five to ten seconds long, and sometimes up to 30 seconds, but

15 they were repeated over extended periods of 10 to 15 minutes. On one

16 occasion only, the Judge appeared to be asleep for approximately

17 30 minutes. The Appeals Chamber has proceeded to consider whether,

18 notwithstanding their failure to establish the factual basis of these

19 grounds of appeal, the appellants nevertheless have a valid cause for

20 complaint as to the fairness of the trial.

21 The Appeals Chamber has stated, firmly, that Judge Karibi-Whyte's

22 conduct cannot be accepted as appropriate conduct for a Judge. It has

23 also said that if a Judge suffers from some condition which prevents him

24 or her from giving full attention during the trial, then it is the duty of

25 that Judge to seek medical assistance and, if that does not help, to

Page 798

1 withdraw from the case. However, before a judgement will be quashed upon

2 this basis, it must be established that some identifiable prejudice was

3 caused by that conduct to the appellant, and the failure of counsel to

4 object at the trial to the conduct in question is relevant to whether such

5 prejudice has been established. The requirement that the issue be raised

6 during the proceedings is not simply an application of a formal doctrine

7 of waiver, but a matter indispensable to the granting of fair and

8 appropriate relief.

9 The Appeals Chamber has not been satisfied that any specific

10 prejudice was suffered by Landzo or the other appellants. In the absence

11 of any actual prejudice, the Appeals Chamber has rejected the ground of

12 appeal.

13 Judge Odio-Benito and Vice-Presidency of Costa Rica.

14 During the course of the trial, Judge Odio-Benito was elected

15 Vice-President of Costa Rica, and she took an oath of office as such. All

16 three convicted accused challenged her qualifications to remain as a Judge

17 of the Tribunal during the rest of the trial, and they alleged that, in

18 any event, she should have disqualified herself as a Judge by reason of

19 those facts because she was no longer independent.

20 The Appeals Chamber has held that because the Judges of the

21 Tribunal must necessarily come from a wide variety of legal systems, the

22 requirement of Article 13 of the Tribunal's Statute (as it was at the

23 relevant time) that the Judges of the Tribunal "possess the qualifications

24 required in their respective countries for appointment to the highest

25 judicial offices" was intended to ensure that the essential qualifications

Page 799

1 did not differ from Judge to Judge and that it was not intended to include

2 within the required legal qualifications any constitutional

3 disqualifications peculiar to a particular country. The Appeals Chamber

4 has, in any event, rejected the argument that by virtue of her election as

5 Vice-President of Costa Rica, Judge Odio-Benito was constitutionally

6 disqualified for election as a magistrate of the Supreme Court of Justice

7 under the constitution of that country.

8 The Appeals Chamber has also rejected the argument that

9 Judge Odio-Benito should nevertheless have disqualified herself as a Judge

10 because she was no longer independent. The Appeals Chamber has not

11 accepted that the Judge exercised any executive functions in Costa Rica

12 during the time she was also a Judge of the Tribunal. The appellants have

13 failed to establish that the reaction of the hypothetical observer with

14 sufficient knowledge of the circumstances to make a reasonable judgement

15 would be that she might not bring an impartial and unprejudiced mind to

16 the issues arising in the Celebici case.

17 Judge Odio-Benito and the Victims of Torture.

18 All three convicted accused also alleged that Judge Odio-Benito

19 was automatically disqualified as a Judge of the Tribunal because she was,

20 at the time this case was heard, a member of the Board of Trustees of the

21 United Nations Voluntary Fund for Victims of Torture.

22 They contended that since the indictment in this case included

23 allegations of torture, there was a strong appearance of bias on the part

24 of the Judge against those accused who were the subject of those

25 allegations.

Page 800

1 The Appeals Chamber has held that the same hypothetical observer

2 would be aware that the objects of this fund are solely focused on

3 fund-raising to enable material assistance to be given to the victims of

4 torture - through the receipt and redistribution of donations for

5 humanitarian, legal, and financial aid to victims of torture and their

6 relatives - and would not expect Judges to be morally neutral about

7 torture. Rather, such an observer would expect Judges to hold the view

8 that persons responsible for torture should be punished. It has accepted

9 the statement that "it is [...] important that judicial officers discharge

10 their duty to sit and do not, by acceding too readily to suggestions of

11 apparent bias, encourage parties to believe that by seeking the

12 disqualification of a judge they will have their case tried by someone

13 thought to be more likely to decide the case in their favour."

14 Sentencing.

15 All of the parties, with the exception of Delalic, filed grounds

16 of appeal in relation to sentencing. The Prosecution challenged the

17 sentences imposed on Mucic of seven years to be served concurrently as

18 "manifestly inadequate." Mucic challenged his sentence as too long in

19 all the circumstances.

20 The Appeals Chamber has concluded that the Trial Chamber failed to

21 take adequate account of the gravity of offences for which Mucic was

22 convicted and that in a number of respects, it failed to take into account

23 or gave inadequate weight to various matters in aggravation. The Appeals

24 Chamber has rejected one complaint by the Prosecution, that the Trial

25 Chamber erred when it did not take into account criminal conduct which was

Page 801

1 not specifically alleged in the indictment and in relation to which the

2 Prosecution had not requested the Trial Chamber to make specific

3 findings. The Appeals Chamber has accepted one complaint by Mucic, that

4 the Trial Chamber erred in making an adverse reference in its sentencing

5 considerations to the fact that Mucic had declined to give oral testimony

6 at the trial, but it has otherwise rejected his complaints.

7 The Appeals Chamber has indicated that taking into account the

8 various considerations relating to the gravity of his offences, all the

9 aggravating circumstances, the mitigating circumstances to which the Trial

10 Chamber referred, and the "double jeopardy" element involved in

11 resentencing, it would have imposed on Mucic a heavier sentence of a total

12 of around ten years' imprisonment. This is a figure to which the new

13 Trial Chamber to consider sentencing issues may have regard in its own

14 determination.

15 Delic challenged his sentence on the basis that the Trial Chamber

16 contravened the principles of legality by imposing sentences on him which

17 were greater than the sentences which would have been permitted at the

18 relevant time under the sentencing laws and practice of the former

19 Yugoslavia. The Appeals Chamber has rejected that challenge. It has also

20 stated that whilst Trial Chambers must, as required by Article 24.1 of the

21 Statute, have recourse to the general practice regarding sentencing in the

22 courts of the former Yugoslavia, they are not bound by that practice. The

23 Appeals Chamber has also concluded that the sentences imposed on Delic

24 have not been shown to be excessive or in any way outside of the Trial

25 Chamber's sentencing discretion.

Page 802

1 Landzo challenged his sentence on the basis that it was manifestly

2 excessive. He sought to show a disparity between his sentence and

3 sentences imposed on persons convicted in other cases before the

4 Tribunal. The Appeals Chamber has not accepted that the comparisons made

5 by him are valid. It has also concluded that the Trial Chamber adequately

6 considered the mitigating factors applicable to Landzo.

7 Disposition.

8 The formal orders made by the Appeals Chamber in the Disposition

9 section of the judgement are as follows:

10 1. In relation to Counts 1 and 2 of the Indictment, the Appeals

11 Chamber allows the ninth and tenth grounds of appeal filed by Hazim Delic,

12 it quashes the verdict of the Trial Chamber accordingly, and it enters a

13 verdict that Hazim Delic is not guilty upon those counts.

14 2. In relation to the grounds of appeal relating to cumulative

15 convictions, the Appeals Chamber allows the twenty-first ground of appeal

16 filed by Hazim Delic and the seventh ground of appeal filed by Zdravko

17 Mucic; it dismisses Counts 14, 34, 39, 45, and 47 against Zdravko Mucic;

18 it dismisses Counts 4, 12, 19, 22, 43, and 47 against Hazim Delic, and it

19 dismisses Counts 2, 6, 8, 12, 16, 25, 31, 37, and 47 against Esad Landzo.

20 It remits to a Trial Chamber to be nominated by the President of the

21 Tribunal the issue of what adjustment, if any, should be made to the

22 sentences imposed on Hazim Delic, Zdravko Mucic, and Esad Landzo to take

23 account of the dismissal of these counts.

24 3. In relation to the eleventh ground of appeal filed by Zdravko

25 Mucic, the Appeals Chamber finds that the Trial Chamber erred in making

Page 803












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts













Page 804

1 adverse reference when imposing sentence to the fact that he had not given

2 oral evidence in the trial, and it directs the Reconstituted Trial Chamber

3 to consider the effect, if any, of that error on the sentence to be

4 imposed on Mucic.

5 4. The Appeals Chamber allows the fourth ground of appeal filed

6 by the Prosecution alleging that the sentence of seven years imposed on

7 Zdravko Mucic was inadequate, and it remits the matter of the imposition

8 of an appropriate revised sentence for Zdravko Mucic to the Reconstituted

9 Trial Chamber, with the indication that, had it not been necessary to take

10 into account a possible adjustment in sentence because of the dismissal of

11 the counts referred to, it would have imposed a sentence of around ten

12 years.

13 5. The Appeals Chamber dismisses each of the remaining grounds of

14 appeal filed by each of the appellants.

15 The Appeals Chamber's reasons for these orders are now published.

16 The accused are to remain in custody in the Detention Unit until

17 further order.

18 That concludes the appeal, and the Chamber will now adjourn.

19 --- Whereupon the Judgement on Appeal adjourned

20 at 4.14 p.m.