1 Tuesday, 18 June 2002

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.35 a.m.

6 JUDGE SHAHABUDDEEN: Good morning. Madam Registrar, would you

7 please call the case.

8 THE REGISTRAR: Good morning, Your Honours. Case number

9 IT-96-21-Abis, the Prosecutor versus Zdravko Mucic, Hazim Delic, and Esad

10 Landzo.

11 JUDGE SHAHABUDDEEN: At the beginning, I think it is proper to

12 tender an apology to the participants in this case for the lateness in the

13 taking of our positions on the Bench. It was due for good personal

14 reasons. Thank you very much.

15 Now, can the appellants hear me? Mr. Mucic?

16 THE APPELLANT MUCIC: [Interpretation] Yes.

17 JUDGE SHAHABUDDEEN: Mr. Delic? And Mr. Landzo?

18 THE APPELLANT LANDZO: [Interpretation] Yes.

19 JUDGE SHAHABUDDEEN: Now we will take the appearances. First

20 counsel for the appellants. Mr. Mucic.

21 MR. KUZMANOVIC: Good morning, Your Honours. Tom Kuzmanovic and

22 Howard Morrison here on behalf of Mr. Mucic.

23 JUDGE SHAHABUDDEEN: Mr. Delic counsel for?

24 MR. KARABDIC: Good morning, Your Honour, I am Salih Karabdic --

25 THE INTERPRETER: Microphone, please.

1 MR. KARABDIC: -- my colleague Thomas Moran, from Houston. We

2 represent Hazim Delic.

3 MS. SINATRA: Good morning, Your Honours. I'm Cynthia Sinatra,

4 and along with my esteemed counsel, Professor Peter Murphy, we represent

5 Esad Landzo.

6 JUDGE SHAHABUDDEEN: And now we move to the Prosecution.

7 MR. FARRELL: Good morning, Your Honour. For the Prosecution

8 Norman Farrell, Ms. Helen Brady, Mr. Anthony Carmona and with us is

9 Mr. Wolfgang Sakulin who is our case manager. Thank you.

10 JUDGE SHAHABUDDEEN: Now, I have received this morning a written

11 communication from counsel for the appellants. The Bench has also been

12 supplied with a copy. Let me ask Mr. Hocking for a copy.

13 Have you got a copy, Mr. Hocking?

14 [Trial Chamber confers]

15 JUDGE SHAHABUDDEEN: The speaking order indicated is agreeable to

16 us subject to what the Prosecution has to say. I understand that

17 Mr. Murphy will speak on jurisdictional issues. Mr. Moran will speak on

18 jurisdictional issues relating to cumulative sentencing. Mr. Kuzmanovic

19 will speak on Fifth Amendment issues. That, I believe, has to do with the

20 right of silence. And individual issues will then be dealt with by

21 Mr. Moran and Ms. Sinatra.

22 Have you -- has the Prosecution got a copy of this document?

23 MR. FARRELL: No. I'm sorry, we haven't seen the document.

24 JUDGE SHAHABUDDEEN: You will be given a copy now.

25 MR. FARRELL: Thank you.

1 JUDGE SHAHABUDDEEN: It has to do with the speaking order.

2 MR. FARRELL: Thank you.

3 JUDGE SHAHABUDDEEN: The most important thing is that -- well, an

4 important thing, I believe, is that you will, together, confine yourself

5 within the time limits prescribed by the Court.

6 So now we will hear Mr. Murphy on jurisdictional issues concerning

7 cumulative sentences. Yes. You may now begin. Are you ready,

8 Mr. Murphy?

9 MR. MURPHY: Yes, thank you, Your Honour.

10 Your Honours, before I come to address the provisions of the

11 Statute of the Tribunal and the Rules of Procedure and Evidence, I would,

12 if I may, like to make one observation that I think really goes to the

13 heart of this issue which has been brought before the Appeals Chamber and

14 which shows that this is not a semantic or academic question but one that

15 goes to the very heart of the sentencing procedure in the Tribunal.

16 I would submit that in all civilised jurisdictions, it is a basic

17 principle of sentencing that the sentence should be imposed based upon

18 information available at the time when sentence is passed. This is just a

19 statement of general principle. In the present case, Your Honours, as you

20 know, the first sentencing Chamber, the Trial Chamber, passed sentence on

21 these accused in November of 1998, and it was not until October of 2001

22 that the second Trial Chamber made its ruling which is the subject of the

23 present appeal.

24 Essentially, what we say is even if one leaves aside the

25 provisions of the Statute and the provisions of the Rules, good sentencing

1 procedure would have demanded that the sentence be passed with full

2 information about the present condition of these accused, as well, of

3 course, as the history, as contained in the record, developed by the Trial

4 Chamber, and in this case that was not done, despite the fact that almost

5 three years had elapsed between the two sentences.

6 Now, when one comes to look at the law, I would respectfully

7 submit that what one finds is this: that this good standard sentencing

8 practice has been enshrined in the Statute of the Tribunal and it's been

9 enshrined in the Rules, as one would expect it to be. The combined effect

10 of Article 24(2) of the Statute and Rule 101(B) of the Rules is to require

11 a sentencing Chamber to have regard to certain matters. Your Honours are

12 quite familiar with these provisions. They're set out in our brief. I

13 need not read them to you. But of course, one of the things that must be

14 assessed is the individual circumstances of the accused.

15 Now, looking at the procedural history of this case, what do we

16 see? We see that the Appeals Chamber, the first Appeals Chamber, when

17 considering this matter, clearly was not concerned with any detailed

18 argument from counsel or a consideration of the law regarding its powers.

19 But when it made the order to refer the case to a new sentencing Chamber,

20 what the Appeals Chamber called a reconstituted Trial Chamber, it did so

21 with what the second Trial Chamber interpreted as being a very narrow

22 mandate, namely, to consider only the issue of whether some adjustment of

23 sentence should be made because of the fact that certain cumulative

24 charges had been dismissed, and my learned friend Ms. Sinatra will deal

25 with the implications of that as a matter of the Court's discretion.

1 But the argument that I advance, which will be -- I do, really, on

2 behalf of both Mr. Landzo and Mr. Mucic. Mr. Delic has a slightly

3 different argument on this point. The argument that we advance is simply

4 this: that the Appeals Chamber certainly had the power to cause the issue

5 of sentence to be considered by a second Trial Chamber. That could have

6 been done, but we submit that it must have been done under Rule 117,

7 thereby giving the appellants what is referred to in the Rule as a new

8 trial according to law. And we submit that when the Rule speaks of a new

9 trial according to law -- Your Honour, I'm going to pause just so that I

10 can have a clear sight of the Bench.

11 When the Rule speaks of a new trial according to law, we submit

12 that that means a new trial which takes into account the relevant

13 provisions of the Statute, the Rules, and the law from other sources that

14 this Tribunal may consider. The fact is that that was not done.

15 A new trial need not have been a protracted affair. Nobody

16 suggests that the second sentencing Chamber had to reopen the issues which

17 had been already concluded by the first Trial Chamber or the first Appeals

18 Chamber as regards conviction, as regards the underlying facts of the

19 case, or even to reopen the various issues of mitigation or aggravation

20 that were placed before the first Trial Chamber. Those had all been

21 considered. But what the appellants, in our submission, were entitled to

22 was to place before the Court such facts as might bear on the question of

23 their individual circumstances not in November 1998 but in October 2001,

24 because in our respectful submission, those circumstances had necessarily

25 changed in that period of almost three years.

1 Your Honours, in a sense, the issue in this case comes down to

2 this: Will the Statute and the Rules be strictly applied or will the

3 Court, as invited to by the Prosecution, say, "Well, we need to have an

4 inherent power because it's necessary to make the appeal process work, and

5 that can only be done by the Appeals Chamber having certain inherent

6 powers to regulate the conduct of its own affairs."

7 Now, Your Honours, we do not dispute that the Appeals Chamber,

8 like any other court, has certain inherent powers. Clearly, when we're

9 talking about formal matters, such as correcting an error in the record,

10 when we're talking about dealing with a contempt in the face of the Court,

11 these are well-recognised powers. Nobody disputes that the Appeals

12 Chamber could exercise those powers. This is a different case. The

13 Prosecution argues that the Appeals Chamber has some kind of inherent

14 power to increase its own jurisdiction, to increase its own powers to an

15 extent not provided for either in the Statute or the Rules. They call

16 this a purposive or a theological interpretation. But Your Honours,

17 whatever name one gives to it, the fact is that this is a criminal court,

18 that the Appeals Chamber and the Trial Chambers are creatures of Statute,

19 and that the statutory provision in this case dealing with the powers of

20 the Court, Article 25(2), is not in any way grammatically ambiguous, and

21 we submit that it should be interpreted strictly and it should be

22 interpreted strictly in favour of the accused.

23 The other point that I should address is that the Prosecution

24 cites the Tadic case as being authority for the course of action taken by

25 the first Trial Chamber in this case.

1 Your Honours, we have set out in our brief something of the

2 detailed history of the Tadic case from which it is quite clear that when

3 Mr. Tadic was held to be guilty of further offences because of the Appeals

4 Chamber's ruling and the sentence was sent back to a new Trial Chamber

5 partly comprised of the original Judges, partly not, that Trial Chamber

6 did exactly what the appellants in this case contend should have been

7 done. They not only looked at the record of the trial, they also obtained

8 up-to-date information about Tadic from the United Nations Detention Unit,

9 and they allowed Tadic to make a statement as provided by Rule 100.

10 The appellants in this case ask the Trial Chamber, second Trial

11 Chamber, to permit that course of action also, and the Trial Chamber

12 interpreted the Appeals Chamber's order as being that that was not

13 permissible, that no evidence was required, and that the only issue was

14 the issue of an adjustment of sentence.

15 Your Honours, it's our submission that simply put, the Trial

16 Chamber have no jurisdiction to sentence the appellants, the second Trial

17 Chamber, because the order of the first Appeals Chamber exceeded the

18 powers that the Appeals Chamber has under Article 24(2) and 101(B). The

19 Appeals Chamber could have achieved its object by ordering a new trial

20 according to law on the limited issue of sentence, but it did not do so.

21 Lastly, the Prosecution contends while there was no prejudice to

22 the appellants through this because all the relevant matters had been

23 considered by the first sentencing Chamber. Your Honours, all the matters

24 which were required by the Rule were not considered by the first

25 sentencing Chamber because clearly, almost three years later, they were

1 not then available. And we say that the present position is that these

2 appellants were not properly sentenced because the second sentencing

3 Chamber lacked jurisdiction to do so.

4 Do Your Honours have any questions on these submissions?

5 JUDGE SHAHABUDDEEN: Judge Hunt.

6 JUDGE HUNT: Mr. Murphy, your principal argument as to why this

7 was an improper procedure is that you were denied the opportunity of

8 presenting up-to-date evidence; is that right?

9 MR. MURPHY: Your Honour, yes.

10 JUDGE HUNT: Of course the Appeals Chamber was being asked by you

11 to reduce your client's sentence, wasn't it?

12 MR. MURPHY: Yes, Your Honour.

13 JUDGE HUNT: And if it had gone ahead and upheld your appeal, it

14 would have then been open to the Appeals Chamber, the first Appeals

15 Chamber, to impose a fresh sentence.

16 MR. MURPHY: Yes.

17 JUDGE HUNT: But you never tendered any evidence before that

18 Appeals Chamber for that purpose, did you?

19 MR. MURPHY: Your Honour, no. The Prosecution drew attention to

20 that fact, but as the Prosecution put it in their brief, the proceedings

21 before the Appeals Chamber were not a de novo rehearing of the issue of

22 sentence.

23 JUDGE HUNT: That's not the point that I have asked you about.

24 You asked the Appeals Chamber to upset the sentence because it was

25 manifestly excessive.

1 MR. MURPHY: Yes.

2 JUDGE HUNT: Which would have required the Appeals Chamber, if it

3 had decided to do so itself, to have resentenced him.

4 MR. MURPHY: Your Honour, yes.

5 JUDGE HUNT: And that would have permitted you to have put forward

6 your up-to-date evidence, wouldn't it? That is the usual way these things

7 are done in appellate courts.

8 MR. MURPHY: Your Honour, before an Appellate Court, my

9 understanding is that the Appeals Chamber was looking at the record as

10 developed by the first Trial Chamber.

11 JUDGE HUNT: But in order to resentence him, it would have been

12 open to you to have brought the evidence up to date. Now, that can be

13 answered yes or no.

14 MR. MURPHY: It would have been open to us, Your Honour, to offer

15 that evidence to the Appeals Chamber.

16 JUDGE HUNT: And you didn't do so.

17 MR. MURPHY: We did not do so.

18 JUDGE HUNT: Have you got any reason for not doing so, other than

19 your misguided belief that it was -- that it only be available on a

20 de novo hearing?

21 MR. MURPHY: Your Honour, the issue on which we invited the

22 Appeals Chamber to rule was one of law based upon the wording of

23 Article 25(2). We had to bring to the Appeals Chamber's attention

24 something that had gone wrong in the first Trial Chamber relating to the

25 sentence. Now, for that purpose, the record before the Trial Chamber was

1 plainly relevant, but I would anticipate that if I had stood before

2 Your Honour on that occasion and said we have up-to-date information,

3 Your Honour might well have said to me, "How does that bear on whether or

4 not the sentence was excessive when imposed by the first Trial Chamber

5 which is the subject of the appeal?"

6 JUDGE HUNT: Well, perhaps it's because I've been on sitting on

7 one or other type of Appeals Chamber for many years, but I can assure you

8 I never would have had the audacity to say that. It is done every day in

9 appellate criminal courts.

10 MR. MURPHY: Well, Your Honour, I'm not familiar with the practice

11 in Your Honour's jurisdiction. I do know that in the jurisdiction in

12 which I began my practice, the Court of Appeals might possibly have

13 entertained up-to-date information, but they would be much more likely to

14 require a Trial Chamber or a Trial Court to do so. On the issue before

15 the Appeals Chamber would be one of law, namely, did the Judge of first

16 instance make a decision that was manifestly excessive or did the Judge

17 get it right within the discretionary framework available? And as I

18 understand it, Your Honour, that was the issue we brought before the first

19 Appeals Chamber.

20 Your Honour, if I may add one more thing to that. Even if we had

21 brought evidence forward at that time and the Appeals Chamber had made the

22 same order notwithstanding, namely that we have to refer it back to a

23 second Trial Chamber, we would still have contended that the state of

24 affairs would have to be examined at the date of the second sentence and

25 not at the date even of the -- of the judgement in the Appeals Chamber.

1 JUDGE HUNT: The only problem is you didn't say so.

2 MR. MURPHY: I don't know whether the issue was raised Your

3 Honour, at that time, and I think the possible referral back to a second

4 Trial Chamber, as far as I recall, was not expressly adverted to during

5 that appeal.

6 Unless the Bench has any other questions, I will defer to my

7 colleagues.

8 JUDGE SHAHABUDDEEN: Mr. Murphy, would you take a question from

9 Judge Gunawardana.

10 THE INTERPRETER: Microphone, Your Honour, please.

11 JUDGE GUNAWARDANA: You said that the Appeals Chamber referred the

12 case to the second Trial Chamber on the basis that they should look into

13 the effect of the acquittal on the cumulative charges.

14 MR. MURPHY: Your Honour, yes.

15 JUDGE GUNAWARDANA: Now, thereby this Court [indiscernible] refers

16 to the Appeals Chamber is limited. Then at the state that you said there

17 were changes that took place just after the first Appeals Chamber, the

18 first conviction in the first Trial Chamber and the hearing before the

19 second Trial Chamber, but what were the changes you had in mind?

20 MR. MURPHY: Well, Your Honour, the --

21 JUDGE GUNAWARDANA: Because you didn't lead any evidence, the only

22 issue before the second Trial Chamber -- the issue before second Appeal --

23 Trial Chamber was the issue to consider the effect of the cumulative

24 charges.

25 MR. MURPHY: Well, Your Honour, the point of the -- of any new

1 evidence or of perhaps getting a report from the United Nations Detention

2 Unit would be to satisfy the requirement which is laid down by

3 Article 24(2) and Rule 101(B) that the individual circumstances of the

4 accused be taken into account. And, Your Honour, we can't say -- I'm not

5 saying that that would necessarily have made a difference, because we

6 don't know, but --

7 JUDGE GUNAWARDANA: No. The point is you did not make any de novo

8 to lead any evidence of making sure the new circumstances. So all the

9 circumstances that prevailed before the first -- second Trial Chamber were

10 the same facts as it was before the first Trial Chamber except for the

11 fact of the cumulative charges.

12 MR. MURPHY: Well, Your Honour, yes. The -- the circumstances of

13 the cumulative charges, of course, were something that the first Appeals

14 Chamber said should be considered, and we did address that before the

15 second Trial Chamber. But that was a matter which could have been

16 considered, in any event, if the Appeals Chamber had ordered a new trial

17 under Rule 117. But in addition to that, we say that the Rules and the

18 Statute entitle the accused to have the opportunity of putting forward to

19 the sentencing tribunal such facts as they might be.

20 And I take Your Honour's point that it's possible these facts

21 would not have been regarded by the Court as significant, but nonetheless,

22 the appellants had the -- should have had the opportunity to present them,

23 and the accused should have been given the opportunity to make a

24 sentence -- a statement, rather, on sentence under Rule 100.

25 JUDGE GUNAWARDANA: But as my brother pointed out, Judge Hunt,

1 that you made no effort to do such thing at the hearing of the second

2 appeal.

3 MR. MURPHY: Your Honour, the -- there was a motion made to the

4 second Trial Chamber on behalf of Mr. Delic. Before any other motions

5 could be made, there was a ruling on that motion, and the second Trial

6 Chamber declined to entertain any further evidence. So we were, in fact,

7 precluded from introducing such evidence.

8 JUDGE GUNAWARDANA: Well, the second Trial Chamber made the order

9 on the facts that were available to them.

10 MR. MURPHY: I'm sorry, Your Honour, I didn't quite hear.

11 JUDGE GUNAWARDANA: So the second Trial Chamber made the order in

12 regard to sentence on the facts that were available to them at that time.

13 MR. MURPHY: Yes, Your Honour, they did, except for this: that the

14 Trial Chamber specifically said that it wasn't going to consider the

15 facts. I think we set out an extract from the Court's ruling in our

16 brief, and what the Trial Chamber said was, We have been instructed by the

17 Appeals Chamber only to consider one issue," and that issue was given that

18 these are proper sentences, should any adjustment be made to the sentences

19 because of the dismissal of the cumulative charges? At least was true in

20 Mr. Landzo's case. I know in Mr. Mucic's case there was an additional

21 issue, but the basic issue of jurisdiction was in that one order.

22 Thank you very much, Your Honour.

23 JUDGE SHAHABUDDEEN: Yes. Judge Meron now. Are you still up

24 standing, Mr. Murphy?

25 MR. MURPHY: Yes, Your Honour.

1 JUDGE MERON: Thank you. Mr. Murphy, let me clarify one point

2 with you, if I may. You do accept that the Appeals Chamber had the

3 authority itself to resentence?

4 MR. MURPHY: Your Honour, yes.

5 JUDGE MERON: And is it your position that the Appeals Chamber

6 would have had to take into account mitigating evidence not available

7 during the first trial?

8 MR. MURPHY: Your Honour, we might have offered that evidence, but

9 as I said in response to Judge Hunt, our understanding of the issue that

10 is required to be before an Appeals Chamber by Article 25 is whether or

11 not the Trial Chamber made an error because it imposed a manifestly

12 excessive sentence, and that would have to be looked at in the light of

13 the record as developed at that time.

14 Now, if the Appeals Chamber decided, after argument on that point,

15 to revise the sentence, of course we have no problem with that. That's

16 within the powers of the Chamber. If they had ordered a new Chamber to

17 consider the record and conduct a new trial on that issue, we have no

18 problem with that. All we're saying is that what cannot be done is that a

19 discrete issue, in a vacuum, without any reference to the record or the

20 new facts, can be referred to a Trial Chamber in this way.

21 JUDGE MERON: Thank you.

22 MR. MURPHY: Thank you very much, Your Honours.

23 JUDGE SHAHABUDDEEN: Mr. Murphy, just one small question from me,

24 if you don't mind. I ought to have been clearer than I am, having read

25 the pleadings and listened to your arguments, but I think it prudent to

1 ask you to clarify just one point for me, and that is to say this: Is it

2 your case that the new Trial Chamber misconstrued the decision of the

3 Appeals Chamber, or is it your case that the new Trial Chamber correctly

4 construed the decision of the Appeals Chamber? I'm referring to what you

5 have referred to as a narrow construction --

6 MR. MURPHY: Yes.

7 JUDGE SHAHABUDDEEN: -- placed by the new Trial Chamber on the

8 remit ordered by the Appeals Chamber. In one case, you would be directly

9 attacking the jurisdiction of the new Trial Chamber; in the other case,

10 you would be attacking it also, but indirectly, in the sense that your

11 real thrust would be against the vires of the decision of the Appeals

12 Chamber itself. Which is it?

13 MR. MURPHY: Your Honour, we would say that the Appeals Chamber

14 itself had no power to refer the matter in the way it did. I think we

15 would submit that the second Trial Chamber was certainly entitled to

16 construe the Appeals Chamber's order in the way it did, but our argument

17 is that if the Appeals Chamber did not have power to make that order, then

18 it would follow that the second sentencing Trial Chamber had no

19 jurisdiction to pass sentence.

20 JUDGE SHAHABUDDEEN: Would you confirm one other aspect for me?

21 That is to say that you are not contending on the basis that this Appeals

22 Chamber, this Bench, has a power to hear an appeal from the decision of

23 the previous Bench of the Appeals Chamber but that it has a power of

24 reconsideration? Is that your case?

25 MR. MURPHY: Your Honours have the power to affirm, reverse, or

1 revise any decisions taken by the Trial Chambers. And the decisions taken

2 by the Trial Chamber in this case, as far as Landzo is concerned, were to

3 hold -- firstly to hold that they had jurisdiction to pass sentence. That

4 was an issue that we had raised with the Trial Chamber by means of a

5 motion. And then, of course, the sentencing order itself made by the

6 Trial Chamber, Your Honours have power to deal with that order, to hear an

7 appeal from that order, under Article 25.

8 JUDGE SHAHABUDDEEN: You're not asking us, then, to hear an appeal

9 from the previous decision of another Bench of this same Appeals Chamber?

10 MR. MURPHY: No, Your Honour. The issue here is whether or not

11 the -- the only jurisdiction I believe Your Honours have is to consider an

12 appeal from the decision of the second sentencing Trial Chamber.

13 JUDGE SHAHABUDDEEN: The new Trial Chamber.

14 MR. MURPHY: Yes.

15 JUDGE SHAHABUDDEEN: One last question: Mr. Landzo appealed

16 against his conviction in respect of the death of Gotovac, but I

17 believe --

18 MR. MURPHY: I think Your Honour is thinking of Mr. Delic.

19 JUDGE SHAHABUDDEEN: Delic was also convicted in respect of the

20 death of Gotovac; that is true. But was Landzo also convicted in respect

21 of that death?

22 JUDGE HUNT: Yes, he was.

23 MR. MURPHY: Yes, he was, but that was not the subject of an

24 appeal, Your Honour.

25 JUDGE SHAHABUDDEEN: But did the Appeals Chamber dismiss an appeal

1 on that point?

2 MR. MURPHY: No. The Appeals Chamber -- the only action that the

3 Appeals Chamber took in Mr. Landzo's case was to dismiss certain

4 cumulative charges. They did not allow an appeal against a conviction on

5 the merits of any one of the charges.

6 JUDGE SHAHABUDDEEN: Now, in respect of the death of Gotovac,

7 Mr. Landzo had been sentenced to 20 years; is that right?

8 MR. MURPHY: Fifteen, I think, Your Honour. Fifteen. The maximum

9 sentence Mr. Landzo received on any one count was 15 years.

10 JUDGE SHAHABUDDEEN: Fifteen?

11 MR. MURPHY: Yes, and all the sentences in his case were ordered

12 to run concurrently.

13 JUDGE SHAHABUDDEEN: Thank you. My reading was inadequate on that

14 point. Thank you very much.

15 JUDGE HUNT: You've confused me, I'm afraid, Mr. Murphy. You say

16 you are not arguing that the decision of the Appeals Chamber to send a

17 limited issue to a Trial Chamber was ultravires so far as the Appeals

18 Chamber is concerned.

19 MR. MURPHY: Yes, Your Honour, I do argue that.

20 JUDGE HUNT: Yes, you do? Well, then, your answer to Judge

21 Shahabuddeen surely would be: Yes, you are arguing that the first Appeals

22 Chamber had no power to do what it did.

23 MR. MURPHY: Yes.

24 JUDGE HUNT: You described it as per curiam, apart from some of

25 the more polite descriptions, which your colleagues don't seem to share.

1 But nevertheless, it is part of your case: The first Appeals Chamber had

2 no power to do what it did?

3 MR. MURPHY: Yes. But His Honour -- I understood His Honour's

4 question to be whether we were appealing against -- trying to appeal

5 against the order of the first Trial Chamber or the order of the

6 first -- of the second -- the first Appeals Chamber or the order of the

7 second Trial Chamber, and of course clearly we must appeal against the

8 order of the Trial Chamber under Article 25. I apologise if I misled the

9 Court on that.

10 JUDGE SHAHABUDDEEN: Thank you, Mr. Murphy.

11 MR. MURPHY: Thank you very much, Your Honours.

12 JUDGE SHAHABUDDEEN: Then we turn to Mr. Moran.

13 MR. MORAN: May it please the Court. Your Honour, I think I may

14 be able to clear up some of the confusion here. Mr. Delic is asking the

15 Appeals Chamber to reconsider the analysis in the Gotovac murder case

16 based on its decision in Kupreskic -- not Gotovac. Milosevic. And

17 because of that -- I think that's the confusion, Your Honour.

18 On the issue of the jurisdiction of the Trial Chamber, Delic takes

19 a slightly different view than that taken by Mucic and Landzo. What we

20 are doing is looking to the substance of what this Chamber did in the

21 initial appeal rather than the form that it did it in. It's our position

22 that the Statute gives the Chamber the authority to do three things, the

23 jurisdiction to do three things: It can affirm, reverse, or revise the

24 judgement of the Trial Chamber.

25 In this case, as applied to Delic, what the Appeals Chamber did

1 was vacate the sentence and remand it to a Trial Chamber for

2 reconsideration of sentence. Now, it was done in terms of an adjustment

3 and reconsider, but basically what the Appeal Chamber did was remand this

4 case down to a Trial Chamber.

5 Maybe at this point, Judge Hunt, may I try and answer our view on

6 your question to Mr. Murphy on presentation of evidence to the Appeals

7 Chamber in the first appeal. We appealed against sentence that it was

8 manifestly unjust. The Appeals Chamber, looking at the record set forth

9 in front of the Trial Chamber, found that it was not manifestly excessive

10 but vacated the sentence because of the cumulative convictions and the

11 appellate reversal as to count 1 of the indictment, the murder count, and

12 sent it back down. So the issue of whether the sentence, the initial

13 sentence, was manifestly excessive was not remanded to the Trial Chamber.

14 The issue of whether or not we should have presented evidence on that

15 never came up in this Chamber. We lost on that issue.

16 In effect, the way we view the initial judgement of the Appeals

17 Chamber as it affects Delic was to do two things: one, to have the Trial

18 Chamber reassess punishment in view of the reduction in total criminal

19 conduct, because this Chamber found that he had committed only one murder,

20 not two; and second, to determine whether or not the cumulative

21 convictions constituted harmful error. And that is our view of what this

22 Chamber's order to this second Trial Chamber consisted of.

23 I think I've pointed out the differences in views that we have

24 with the other appellants, and if there's any questions from the Court.

25 JUDGE SHAHABUDDEEN: Judge Hunt.

1 JUDGE HUNT: Mr. Moran, you say that the issue --

2 THE INTERPRETER: Microphone, please.

3 JUDGE HUNT: I'm sorry. You say that the issue never came up in

4 the first Appeals Chamber because you lost on that issue, but you didn't

5 know that you had lost on that issue until some months later when the

6 judgement was given.

7 MR. MORAN: Yes, Your Honour.

8 JUDGE HUNT: The question really is: You didn't propose any

9 evidence to be considered upon the basis that if you succeeded on your

10 argument that the decision was manifestly excessive, then you would be

11 entitled to bring up-to-date evidence to be considered on a complete

12 resentencing, and you didn't do it. Now, that's either yes or no again.

13 MR. MORAN: Your Honour, yes; in fact, we did not present

14 evidence. I agree with you, Your Honour.

15 JUDGE HUNT: Now, the other question I want to ask you: In your

16 reply, you have a reference to a decision of the US Supreme Court, or at

17 least to a reference to a statement made by Justice Scalia, in which he

18 describes something as a proverbial bombshell or blockbuster. Did you

19 cite that case merely because he has used that phrase in relation to

20 something else, or did he deal with this issue that we're concerned with

21 here as to the basis of review of the factual sufficiency of the

22 evidence?

23 MR. MORAN: Your Honour, it was because of the language that

24 Justice Scalia used and because it shows that a court can take a second

25 look if there is a blockbuster or a bombshell, not because it's a directly

1 white-horse case to the facts in this case.

2 JUDGE HUNT: And you seem to concede that this bombshell or

3 blockbuster that you are trying to make the Kupreskic judgement into is

4 nothing new on this side of the Atlantic, is it?

5 MR. MORAN: It's awfully new on my side of the Atlantic, Your

6 Honour.

7 JUDGE HUNT: Well, yes. The new world may have different ideas.

8 But nevertheless, it's certainly not new law on this side of the Atlantic,

9 is it?

10 MR. MORAN: No, Your Honour.

11 JUDGE HUNT: Or, I hasten to add, in the northern hemisphere. But

12 you have never referred back to what the Prosecution has put to you about

13 a previous decision of this Tribunal, which raised exactly the same issue

14 upon the same issue as to sufficiency of evidence, and that was in the

15 Kunarac case, on the motion to acquit, and that was given in July 2000.

16 MR. MORAN: Yes, Your Honour.

17 JUDGE HUNT: Well before Kupreskic.

18 MR. MORAN: Yes, Your Honour.

19 JUDGE HUNT: And well before the Celebici appeal.

20 MR. MORAN: Yes, Your Honour.

21 JUDGE HUNT: There was no -- you never asked the Appeals Chamber

22 to look at it upon that basis. You used the word "reliability" on a

23 number of occasions, although I think rather interchangeably with

24 "credibility," but you never asked us to look at that upon that basis.

25 MR. MORAN: Yes, Your Honour. And the reason we did not is it's

1 my opinion that a judgement, an opinion from this Chamber on a final

2 judgement, final consideration, is considerably more persuasive and

3 binding than a Trial Chamber's order on a motion for judgement of

4 acquittal.

5 JUDGE HUNT: It may be more binding, but your argument was that

6 this was new to the jurisprudence of this Tribunal, and it certainly

7 wasn't.

8 MR. MORAN: It was new to the jurisprudence of the Tribunal, Your

9 Honour, to the extent that it was the first time this analysis was used by

10 this Chamber, and binding upon it.

11 JUDGE HUNT: I won't keep asking you the same question.

12 MR. MORAN: Yes, Your Honour.

13 JUDGE HUNT: But you have no other explanation?

14 MR. MORAN: No, Your Honour.

15 JUDGE HUNT: I assume that you didn't know about Kunarac.

16 MR. MORAN: Your Honour, I may have overlooked it, and if I did,

17 it's my fault, not my client's.

18 JUDGE SHAHABUDDEEN: Mr. Justice Gunawardana.

19 JUDGE GUNAWARDANA: Mr. Moran, If I understood right, you used the

20 word that the first Appeals Chamber vacated the sentence.

21 MR. MORAN: Yes, Your Honour.

22 JUDGE GUNAWARDANA: Is that what you meant?

23 MR. MORAN: Yes, Your Honour.

24 JUDGE GUNAWARDANA: So at the time the case went back to the

25 first -- the second Trial Chamber, there was no sentence in respect of

1 these charges?

2 MR. MORAN: Your Honour, in my view, in the form -- or

3 substance-over-form view of the Appeals Chamber's initial judgement in

4 Celebici, while it used the words many times "adjustment," under the

5 Statute, what it did was reverse the Trial Chamber's judgement as to

6 sentence, because it did not affirm it and it did not revise it. So the

7 only possibility left is it reversed it.

8 JUDGE GUNAWARDANA: The legal effect would have been completely

9 different if the sentence was vacated.

10 MR. MORAN: Your Honour, perhaps "vacated" is the wrong word.

11 "Reversed" would be the word under the Statute.

12 JUDGE HUNT: Can you just tell me where we reversed it? If you

13 look at the disposition, where does it say?

14 MR. MORAN: Yes, Your Honour. Your Honour, it's -- looking at the

15 substance of what you did, as opposed to the form, fitting it into the

16 Court's jurisdiction under Article 25, what you did not do was affirm, and

17 you did not revise.

18 JUDGE HUNT: And we did not reverse.

19 MR. MORAN: Then, Your Honour --

20 JUDGE HUNT: I'm asking you where it is.

21 MR. MORAN: What you -- "remanded for adjustment," is the phrase

22 that you used, and there's no question about that, Your Honour. I

23 completely agree with you. That is the phrase that you used. The

24 question that I -- rather than taking the position that some of the other

25 appellants take, that you did not have the authority to do that, what I'm

1 saying is you look at the substance of what you did.

2 JUDGE GUNAWARDANA: If you take up the position that the Court has

3 vacated the -- the first Appeal Chamber vacated the order, then the second

4 Trial Chamber, could not have -- could it have affirmed the sentence? I

5 really think that it could not.

6 MR. MORAN: Your Honour, if this Chamber did not have the

7 authority to do what it did under the Statute, then the second Trial

8 Chamber would never have obtained jurisdiction over the case.

9 JUDGE GUNAWARDANA: That's a slightly different situation now. If

10 the first Appeals Chamber vacated the order, the second Appeal -- Trial

11 Chamber confirming the sentence if they thought it fit with the acquittal

12 and the cumulative charges.

13 MR. MORAN: Your Honour, I'm not sure that I exactly understood

14 what you're asking, but let me try to answer it. Your Honour, if you

15 could clarify your question just a little bit. I'm not exactly sure what

16 you're asking.

17 JUDGE GUNAWARDANA: If at the time the case went back to the

18 second Trial Chamber there was no sentence in respect to these charges,

19 the first Appeal -- the second Appeal -- Trial Chamber could not have

20 confirmed the sentence or given the same sentence. It was already

21 decided.

22 MR. MORAN: Your Honour, as to each of the three appellants, the

23 order from the first Appeals -- from the Appeals Chamber was somewhat

24 different. What it was as to Mr. Mucic was that the initial sentence was

25 manifestly too low; what it was as to Mr. Delic was that there was less

1 criminality; and what it was as to all three was to consider what effect,

2 if any, the cumulative convictions had on the original Trial Chamber's

3 assessment of punishment.

4 JUDGE GUNAWARDANA: Thank you.

5 MR. MORAN: Yes, Your Honour.

6 JUDGE SHAHABUDDEEN: Judge Meron.

7 JUDGE MERON: Thank you, Mr. President. Mr. Moran, I draw your

8 attention to paragraph 42 in the decision, in the sentencing judgement of

9 the reconstituted trial court, and I read:

10 "In the case of the three accused, the totality of their criminal

11 conduct has not been reduced by reason of the quashing of the cumulative

12 convictions."

13 I would ask you to comment on that. How do you respond to this?

14 MR. MORAN: Yes, Your Honour. The totality of the conduct, the

15 acts that the defendants were convicted of did not change based upon the

16 quashing of the cumulative convictions. That is correct.

17 Now, as to Mr. Delic, there was an appellate acquittal on one of

18 the two murder counts, and so in his case, there was a reduction in the

19 total amount of criminal conduct for which he was found to be

20 responsible.

21 JUDGE MERON: But with regard to my question which pertained to

22 cumulative convictions, you do agree with this statement of the Trial

23 Court?

24 MR. MORAN: I very much agree with it, Your Honour.

25 JUDGE MERON: Are you not, Mr. Moran, in effect asking our Court

1 to reduce Article 2 sentences on the ground that Article 3 sentences have

2 been quashed as being impermissibly cumulative?

3 MR. MORAN: Yes, Your Honour. The issue Mr. Delic has presented

4 on that ground is whether or not the Trial Chamber used the correct

5 analysis to determine that the cumulative sentences did not affect the

6 overall sentences that were imposed by the initial Trial Chamber. That is

7 exactly the issue that this Chamber remanded to the Trial Chamber to

8 determine whether or not there was an effect. And the issue that we have

9 presented is that the Trial Chamber here essentially used two separate

10 harmless error rules, two different rules to determine whether or not

11 error was harmful or harmless, and both of them were in the absence of

12 proof of whether the error was harmful or harmless.

13 One is applied to Mr. Mucic and the comments on his failure to

14 testify, where the Trial Chamber said essentially, "In the absence of

15 evidence we will find some harm," and then the Article 3 cumulative

16 conviction issue where the Trial Chamber essentially said, "We find no

17 evidence that it was harmful. Therefore, we're going to make no

18 adjustment."

19 And so the issue that we're presenting to this Chamber, Mr. Delic

20 is presenting, is whether or not the Trial Chamber used the correct legal

21 standard to reach its conclusion, which is a pure legal issue.

22 JUDGE MERON: Thank you.

23 JUDGE SHAHABUDDEEN: Mr. Moran, you said earlier on this morning

24 that -- words to the effect that the remit encompassed two purposes. One

25 was to make adjustments dictated by the quashing of the convictions

1 relating to cumulative offences. I see that in the remit. And the other

2 one was this: that the new Trial Chamber should, I think, undertake a

3 reduction of the sentence in the light of the total criminal conduct of

4 your client.

5 What part of the remit would say so? What part of the remit

6 concerns total criminality aside from adjustments to be made for the

7 quashing of cumulative convictions?

8 MR. MORAN: Your Honour, I'm looking for -- I don't have that

9 judgement in front of me tabbed. If you'd like, I will send something to

10 the -- I'll post a submission, one-page letter pointing to the paragraph.

11 But there is a paragraph in the majority opinion from the Appeals Chamber

12 that talks about and it uses the word "adjustment" based on the --

13 JUDGE SHAHABUDDEEN: Total criminality?

14 MR. MORAN: Based on the dismissal of the murder count, count 1

15 murder conviction.

16 JUDGE SHAHABUDDEEN: All right.

17 MR. MORAN: And it does use that word "adjustment".

18 JUDGE SHAHABUDDEEN: You are not now in a position to point to

19 something in the remit. It's a little over a page.

20 JUDGE HUNT: If it's not in the remit, if I may help. What you

21 are looking for is paragraph 712 and also 713 in the majority judgement as

22 to whether any adjustment should be made in the sentences.

23 MR. MORAN: Yes, Your Honour.

24 JUDGE HUNT: That's the reference in each case.

25 MR. MORAN: Yes, Your Honour. I believe I cited that in my brief,

1 but I don't have the tabbed judgement in front of me.

2 JUDGE HUNT: But there's nothing -- you agree there's nothing in

3 the remit.

4 MR. MORAN: There's nothing in the remit; that is correct.

5 JUDGE SHAHABUDDEEN: Is there something that you would like to

6 advert to in paragraphs 712 and 713 which have been helpfully mentioned by

7 Judge Hunt, something which bears on total criminality?

8 MR. MORAN: Your Honour, paragraph 713, for example, says: "The

9 Appeals Chamber has determined that the conviction for Delic on counts 1

10 and 2 must be quashed on the basis it is not open to the Trial Chamber to

11 have convicted on these counts. It would be convenient when the matter is

12 remitted for the new Trial Chamber --"

13 JUDGE SHAHABUDDEEN: I see. Now, could we turn to a point

14 mentioned by Judge Hunt. It concerns the blockbuster reference in your

15 briefs.

16 Did you raise the question of sufficiency of evidence, in

17 particular this distinction between credibility and reliability, before

18 the Appeals Chamber on the last occasion --

19 MR. MORAN: No, Your Honour.

20 JUDGE SHAHABUDDEEN: -- when you were before it?

21 MR. MORAN: No, Your Honour, I did not.

22 JUDGE SHAHABUDDEEN: Would you say that raises a difficulty for

23 you now raising the point?

24 MR. MORAN: Your Honour, our position is and has to be that

25 Kupreskic is this Chamber's holding on the analysis that this Tribunal

1 should use. That was not available at the time this Chamber ruled in

2 Celebici. It was not available at the time we filed our briefs in

3 Celebici. Maybe I was remiss in not looking at the orders on

4 interlocutory motions in other Chambers, other Trial Chambers. If I was,

5 that is my fault.

6 JUDGE SHAHABUDDEEN: May I ask you this question: Underlying your

7 submissions, it appears to me an assumption that the old Appeals Chamber,

8 on that point, took a decision or an approach which is at variance with

9 the Kupreskic jurisprudence.

10 MR. MORAN: Your Honour --

11 JUDGE SHAHABUDDEEN: Is that -- is that your case?

12 MR. MORAN: Your Honour, first, when you said "the old Appeals

13 Chamber --"

14 JUDGE SHAHABUDDEEN: That is the Appeals Chamber which decided on

15 the 20th of January.

16 MR. MORAN: Yes, Your Honour. It's -- and I think we've briefed

17 this just in general, but it's our position that there is one Appeals

18 Chamber for the ICTY and that's this Chamber. The individual members may

19 change from time to time, but there is only one Appeals Chamber.

20 Now, that having been said, the Kupreskic decision had not been

21 rendered at that time, and I had not asked the Appeals Chamber at that

22 time to consider it in the view of the Kupreskic analysis because I didn't

23 know that there would be a Kupreskic analysis.

24 JUDGE SHAHABUDDEEN: Let me put this to you: Assuming that the

25 point was at all adverted to before the Appeals Chamber, did the

1 Prosecution raise an issue about it? Did the Prosecution take the

2 position that the Kupreskic-type analysis was inapplicable, was

3 incorrect?

4 MR. MORAN: Your Honour, they did not because we did not raise the

5 Kupreskic-type analysis.

6 JUDGE SHAHABUDDEEN: Well, I have before me the transcript of the

7 arguments before the Appeals Chamber, dated 7 June 2000, in which

8 Mr. Karabdic was arguing, and at page 497, he said: "I have to stress

9 that identification by voice is highly unreliable and insufficient to show

10 beyond reasonable doubt that this actually happened."

11 Then at page 526, 527, 528, you will see that the Prosecution, in

12 effect, did not contest that proposition about the need, if I may

13 translate that, to be cautious, in assessing evidence based on voice

14 identification.

15 Then in the decision, at page 485, the decision of the Appeals

16 Chamber of 28th of February 2001, there is this which is said:

17 "As is clear from the above discussions, the other matters raised

18 by Delic as undermining the credibility of the witnesses are not, in the

19 view of the Appeals Chamber, of such a character as would require a

20 reasonable Trial Chamber to reject their evidence. The Appeals Chamber is

21 satisfied that on the evidence before the Trial Chamber, it was open to

22 accept what was described as the fundamental features of the testimony."

23 Was it the case that the Prosecution really relied on alternative

24 material for the submission for which it was contending?

25 MR. MORAN: Your Honour, in all candor, I do not believe and I do

1 not recall that the issue was joined between the Defence and the

2 Prosecution on that issue as clearly as it should have been. And perhaps

3 Mr. Karabdic and I did not advocate it as well as we should have, and

4 perhaps the Prosecution did not respond to it as clearly as it might have

5 if we'd have had -- if all of us would have had Kupreskic in front of us

6 and had joined the issue in those terms. They were just not joined in

7 those terms, in the terms of Kupreskic.

8 JUDGE SHAHABUDDEEN: Is it -- finally, is it open to this Bench to

9 take the view that the previous Bench of the Appeals Chamber presumably

10 acted in conformity with the jurisprudence to which you are adverting?

11 MR. MORAN: Your Honour, in a case that the Prosecution has just

12 distributed to the Court, a Canadian Supreme Court case called Sarson,

13 S-a-r-s-o-n - and it's just presented to you. I got my copy this

14 morning. I saw a copy last night - the -- there is a discussion about

15 changes in the law while a case is "in the judicial system." And what the

16 Court said there, and I think it's to a great extent our position, that

17 when there is a change -- in the case of Sarson, it was a finding that a

18 Canadian Statute was in violation of their Charter of Rights and,

19 therefore, could not be applied, that as long as the case is in the

20 judicial system, then an Appeals Court that is properly seized with the

21 case can correct that error.

22 That is wholly consistent with a holding of the Supreme Court of

23 the United States in a case, and I'll spell this and read the citation

24 slowly so that everybody can get it --

25 JUDGE SHAHABUDDEEN: And you would say that that applies whether

1 or not the issue, as distinguished from the authority, was referred to in

2 the Court below?

3 MR. MORAN: Your Honour, I think that it makes -- of course, we're

4 not referring it in the court below. We're referring to the analysis in

5 this Chamber. But it is my view that the Kupreskic Turnbull analysis is

6 substantially different than the analysis that had been conducted in

7 earlier cases.

8 And is that a change in the law? It's at least a change in the

9 application of the law, and it's at least a change in the way that the

10 Appeals Chamber analyses factual decisions from the Trial Chambers. And

11 it's a substantial change, and it's the kind of thing that in -- under

12 Sarson and other cases, in the interests of justice can be corrected at

13 least so long as the case is in the judicial system. And Celebici clearly

14 is in the judicial system. It's clearly within your discretion to

15 correct -- to at least relook.

16 And if I'm wrong on my application of the Kupreskic analysis,

17 that's fine. Well, it's not fine, but if I'm wrong on my analysis, I'm

18 wrong, but it's well within this Chamber's discretion to correct that

19 error because the case is still within the judicial system.

20 JUDGE SHAHABUDDEEN: Judge Hunt.

21 JUDGE HUNT: Perhaps this is a question which should go to one of

22 your colleagues, but you are into this issue now. Whereabouts in

23 Celebici, in the first Appeals Chamber's judgement, does it deny that

24 reliability is relevant?

25 MR. MORAN: It does not.

1 JUDGE HUNT: It does not. And indeed in many cases it refers to

2 the question of reliability in relation to the particular matters that you

3 have raised or that you raised there.

4 MR. MORAN: Yes, Your Honour.

5 JUDGE HUNT: Despite the fact that your use of "reliability" may

6 well have been interchangeable for "credibility" in your submissions, the

7 Appeals Chamber did in fact consider reliability.

8 Now, you are going a long way, if I may suggest, to say that

9 because you didn't know of something in the Tribunal's jurisprudence that

10 this is new law.

11 MR. MORAN: Your Honour, the jurisprudence of this Tribunal is, of

12 course, an evolving jurisprudence and it's a rapidly evolving

13 jurisprudence. But I would suggest that the most important -- you're

14 right. It was new to me. But is it new -- is an order from a Trial

15 Chamber, which is not even a judgement, on a motion for instruction -- for

16 judgement of acquittal, is that law of the Tribunal at the same level that

17 the jurisprudence of this Tribunal is decided by this Chamber?

18 JUDGE HUNT: I suggest to you that anybody who knew of it and who

19 didn't try and run it would be derelict in his duty.

20 MR. MORAN: I wouldn't disagree.

21 JUDGE HUNT: It wouldn't have mattered if it had been a decision

22 of the Registrar. It is part of the jurisprudence of the Tribunal. So it

23 had already been adopted, if you need to adopt such things. After all,

24 this is a court of general jurisdiction in relation to criminal matters.

25 You don't have to find something in writing in everything that we do.

1 MR. MORAN: Your Honour, if I am -- if I was remiss in not finding

2 that judgement -- that order, again I will accept full responsibility on

3 that rather than my client having that responsibility.

4 JUDGE HUNT: I am still not getting an answer to my question. My

5 question was that if counsel had known of it and had not raised it, he

6 would have been derelict in his duty.

7 MR. MORAN: I --

8 JUDGE HUNT: You are I think, now confessing that you didn't know

9 of it. Well, that's fair enough. But nevertheless, your whole

10 proposition depends upon this being some sort of new law of the Tribunal.

11 MR. MORAN: Your Honour, it -- one, I am confessing I didn't know

12 about it.

13 JUDGE HUNT: After all, this Court, when it decides questions of

14 whether there should be a reversal of a decision, is not always looking in

15 its own written jurisprudence for some proposition. We have to formulate

16 propositions which are known to the law generally.

17 MR. MORAN: Yes, Your Honour.

18 JUDGE HUNT: And that is the way in which it has worked since the

19 beginning. And this was, I think, the third appeal heard by the Appeals

20 Chamber, and there had been several heard from the Rwanda Tribunal, and

21 you will find bits and pieces here and there. But you don't have to find

22 it somewhere in a written judgement of this Chamber in order to raise it

23 before a new Appeals Chamber.

24 MR. MORAN: I would agree with you, Your Honour, that --

25 JUDGE HUNT: If you do agree -- if I may just put this to you: If

1 you do agree, then how can you describe this as new law which somehow

2 brings into account this new world idea of the law of the case?

3 MR. MORAN: Yes, Your Honour. Well, it is at least to this extent

4 new law: It is new law in that it is newly binding upon this Chamber.

5 Prior to that, it was not. If it -- is it new law that it came out of the

6 whole cloth? No, it is not. It is not new law out of the whole cloth.

7 Clearly it was not.

8 JUDGE SHAHABUDDEEN: Mr. Moran, what Judge Hunt is saying there,

9 if I may state it, conforms to a general view that every practising lawyer

10 knows of a distinction between credibility and reliability. A distinction

11 has to be drawn between a principle and cases which illustrate the

12 principle. The case you had in mind illustrated the principle, but the

13 principle pre-existed that case and that is the position which I believe

14 the Appeals Chamber took, did it not?

15 MR. MORAN: The Appeals Chamber in the initial appeal?

16 JUDGE SHAHABUDDEEN: Yes.

17 MR. MORAN: Your Honour --

18 JUDGE SHAHABUDDEEN: The passage which I read out to you --

19 MR. MORAN: Yes, Your Honour.

20 JUDGE SHAHABUDDEEN: -- it was brief, but it didn't have to be

21 longer than that on the point.

22 MR. MORAN: Yes, Your Honour. The way that I recall framing the

23 issues to the Trial Chamber on initial submission was framed not in the

24 way that you are discussing reliability as opposed to credibility. I may

25 very well be wrong. I may have said something somewhere in a brief. Lord

1 knows I wrote enough on that case. Too much. But as I recall the way the

2 issues were presented in general to this Chamber was she couldn't remember

3 anything or you couldn't -- it was mainly a credibility. And even if you

4 believe this witness, that, standing alone, was insufficient to justify

5 and to sustain a conviction.

6 JUDGE SHAHABUDDEEN: Thank you.

7 MR. MORAN: Yes, Your Honour.

8 JUDGE SHAHABUDDEEN: Thank you, Mr. Moran. There being no other

9 questions, you may take your seat.

10 Then we will hear Mr. Kuzmanovic, who will speak to us on, I

11 think, the right to silence.

12 Ready, Mr. Kuzmanovic?

13 MR. KUZMANOVIC: Yes. Thank you, Your Honours. Mr. Morrison and

14 I will share our -- the time that I have, and I will begin by discussing

15 what the Court correctly termed the right of silence. I may have

16 mentioned it as the Fifth Amendment issue because that's the issue that

17 I'm most familiar about but it's actually a 21(4)(g) issue, which is

18 contained in the Article.

19 Before I talk about that 21(4)(g) issue, I would like to talk very

20 briefly about the sentencing standard. We've talked at some length about

21 that. Mr. Murphy and Mr. Moran have both talked about that. But in our

22 view, Your Honours, we believe that the new Trial Chamber failed to follow

23 the standard analysis in taking in account not only the gravity of the

24 offence in sentencing but the individual circumstances. And we believe

25 that the new Trial Chamber did not follow paragraph 787 of the Appeals

1 Chamber's decision. And I quote that section of the paragraph: "It is

2 essential that the sentencing Judge is in possession of the fullest

3 information possible concerning the defendant's life and circumstances."

4 And in our view, the new Trial Chamber, in not getting specific

5 information about our particular client and updating that information did

6 not have the fullest information possible concerning his life and

7 circumstances. We did not see any indication pointing to the record that

8 the new Trial Chamber exercised any analysis of this second factor, and we

9 believe that's an essential part of the sentencing standard that has

10 evolved at the Tribunal.

11 Other than presumably what it had reviewed in the written

12 judgements, the only real observation of our particular client was in the

13 few times that we had either as a Status Conference or during the course

14 of argument. So we believe that it's difficult, if not impossible, for a

15 sentencing Judge or Judges to have the fullest extent of information

16 possible when it merely has the record only before it on a resentence.

17 With respect to the 21(4)(g) issue, the right of silent, we are

18 adamant that this particular issue is fundamental. And we note that the

19 Appeals Chamber, in paragraph 783 of its decision, said that this was an

20 absolute prohibition including sentencing. The prohibition of a negative

21 inference of the failure to testify.

22 I have provided both the Prosecution and the Appeals Chamber with

23 two cases, and believe me, it took a great deal of time and effort of

24 digging around to find something with at least some similar fact pattern

25 and situation in which this principle can be demonstrated.

1 Obviously this is from an American standpoint, and I did look at

2 more than just the American case law on this, but the two cases that I've

3 submitted, one defines the principle, and the other is an Appellate

4 Court's decision on that principle, applying it to the particular facts of

5 that same case. And the two case, Your Honours, I'm referring to, the

6 United States Supreme Court case is Mitchell versus the United States,

7 which was a 1999 case. And the subsequent Appeals Court decision was

8 again United States versus Mitchell, applying what the Supreme Court said

9 in that case to the particular facts.

10 I won't get bogged down in detail in the facts, but suffice it to

11 say that I think one of the more important issues discussed in the remand

12 portion of the Appellate Court decision applying the Supreme Court

13 decision was the fact that the government in that particular case -- there

14 was an argument as to whether or not sentence should be vacated, with the

15 government saying that the -- there is no need to do so because existing

16 record would support the Trial Court's initial decision, and with the

17 counsel for the accused arguing that the sentence should be vacated.

18 And the bottom line in that situation was that after the

19 submissions, the Appeals Chamber said, "Look, we don't have the original

20 Judge here. If we had the original Judge here, that would be an easy

21 decision for us to make. But original Judge is not here. He has since

22 retired from the Bench. And the only fair way to do it would be to have a

23 full rehearing in front of a new Judge."

24 And while not necessarily needing or requesting a full hearing on

25 the issue of sentencing, we believe that at minimum the new Trial Chamber

1 should have had before it the full circumstances and full updating, so to

2 speak, of Mr. Mucic's life and circumstances at the time that it was going

3 to make its decision.

4 Based on those two cases, Your Honour, those are my particular

5 submissions. I will reserve of the balance of my time for Mr. Morrison

6 unless there are questions.

7 JUDGE HUNT: Mr. Kuzmanovic, in relation to the Court of Appeals

8 when it was sent back to them in the Mitchell case, you will notice that

9 they did consider whether they should send a limited issue to a court but

10 decided in the circumstances of that case it would not be appropriate.

11 MR. KUZMANOVIC: Correct.

12 JUDGE HUNT: But they contemplated that it could have been

13 appropriate to have sent a limited issue back.

14 MR. KUZMANOVIC: I think -- that's correct, Your Honour. And I

15 any in that particular instance the limited issue could have been sent

16 back had, in my view, in my reading, the original Trial Judge been

17 available. And I think had we had the original Trial Chamber available, I

18 don't think we would have that issue to raise.

19 JUDGE HUNT: Well, then, can we assume that your objection to the

20 process that was adopted is that it was wrong because the original Trial

21 Chamber, or at least some Judges of it, were not available but it would

22 have been within the jurisdiction of the Appeals Chamber to have sent a

23 limited issue back to be determined?

24 MR. KUZMANOVIC: I think at least as it pertains to my client, a

25 limited issue could have been sent back as long as the Trial Judge or the

1 Trial Chamber in that point on that full life characteristics available

2 and a full updating, for example, of Mr. Mucic's life and characteristics

3 at the time that it had to make that decision. And that wasn't done in

4 this case.

5 JUDGE SHAHABUDDEEN: Thank you. Thank you very much. We will

6 hear your colleague now.

7 THE INTERPRETER: Microphone for Your Honour.

8 MR. MORRISON: Your Honours, I just want to raise just one

9 matter. It's in line with what His Honour Judge Hunt referred to a few

10 moments ago this morning, that the Court is a Court of general

11 determination in criminal law. And what I want to invite Your Honours to

12 develop is a sense of disquiet about one aspect of Mr. Mucic's case.

13 It is plain and it was recognised by the Appeals Chamber that the

14 criticism by the original Trial Chamber concerning Mr. Mucic's failure to

15 testify was unsustainable. In purporting to give full effect to that

16 criticism, the resentencing Trial Chamber elected to reduce the sentence

17 that they thought was appropriate from ten years down to nine years, thus

18 a reduction of one year.

19 In my submission, the object of the exercise was to give full

20 effect to the Appeals Chamber's determination that the original Trial

21 Chamber was in error. And to give full effect to that criticism, one had

22 to reduce the sentence by a measure of the damage that the original

23 determination might have given. And I say "might have given" because I

24 refer back to the -- what's in the judgement of the second resentencing

25 Chamber at paragraph 21.

1 The last two sentences, or three sentences:

2 "The Appeals Chamber held that the Trial Chamber erred in making

3 the remark."

4 The remark that was in error was he, Mr. Mucic, had declined to

5 give any oral evidence, notwithstanding the dominant position he played in

6 the facts --

7 THE INTERPRETER: Would the counsel please read slower.

8 MR. MORRISON: It goes on:

9 "Since in the context it is indicated that the Trial Chamber

10 regarded the failure in adverse light, and whilst not clear that the Trial

11 Chamber treated Mucic's failure to testify as an aggravating circumstance,

12 the remark left open the real possibility that it did so."

13 JUDGE HUNT: You are being asked to read more slowly.

14 MR. MORRISON: I am sorry.

15 "The Trial Chamber is directed to," and I quote,"consider the

16 effect, if any, of that error on the sentence to be imposed on

17 Mr. Mucic."

18 The consideration of the effect that was directed by the Appeals

19 Chamber to the resentencing Tribunal was heard and is set out in paragraph

20 27, and it was dealt with in this way, paragraph 27 of the redetermination

21 judgement:

22 "As to the original Trial Chamber's adverse comment as to Mucic's

23 failure to testify during his trial, it is not possible for this Trial

24 Chamber to ascertain the precise effect, if any, which the comment may

25 have upon his sentencing."

1 Well, I stop there. That, with respect, must be right. It was

2 not possible for any Trial Chamber to ascertain the precise effect of the

3 previous Trial Chamber. The previous Trial Chamber was no longer in

4 existence and the Judges were no longer Judges of this Tribunal.

5 They go on to say:

6 "However, the Trial Chamber is not in a position to say that it

7 had no effect. Under those circumstances, the Trial Chamber is of the

8 view that since it may have had an effect, the original sentence should be

9 reduced accordingly."

10 But they then go on to underline how they view that, and they say

11 this:

12 "However, this can be given proper effect by a small reduction."

13 They recognise in paragraph 27 that the one year reduction is a

14 small reduction.

15 The disquiet I invited Your Honour to entertain is this: that the

16 defective reasoning - and that that is the only way to properly describe

17 it in the original Trial Chamber's determination as to Mr. Mucic's failure

18 to testify - was so manifest in a system where the burden of standard of

19 proof remains upon the Prosecution, and it's so basic a defect that it

20 goes to the heart of the whole criminal process. Where a defect goes to

21 the heart of the criminal process, or where it might have gone to the

22 heart of the criminal process, then the redress has to be as fundamental

23 as the original error may well have been.

24 My submission is simple. One year is not a fundamental redress.

25 Even if the sentence - and I say that for the limited purpose of this

1 aspect of the appeal - even if the sentence of ten years was held to be

2 appropriate, the reduction of one year, in my respectful submission, was

3 little more than a gesture towards redressing the balance. The reduction

4 for a fundamental error ought to be fundamental in equity and law; it

5 ought to be a great deal more than 10 per cent. That is a matter for

6 discretion. It's not a matter for my discretion; it's a matter for Your

7 Honours' discretion.

8 JUDGE SHAHABUDDEEN: Judge Hunt.

9 JUDGE HUNT: Mr. Morrison, you say that this was so manifest, this

10 error. One would have expected, would we not, for the Trial Chamber

11 to have given other than a manifestly inadequate sentence for your

12 client? If they had given an enormous sentence, you would draw the

13 inference fairly easily that they had given a considerable amount of

14 weight to this issue. One of the things that was being sent back to the

15 Trial Chamber, as the judgement makes clear, is to find out what effect it

16 had. So they had to start off with the fact that a seven-year sentence

17 had been imposed, which had been held to be manifestly inadequate. That

18 does not suggest, or at least it does not suggest to me, that the Trial

19 Chamber had given such a fundamental effect to this mistake they made.

20 MR. MORRISON: With great respect, Your Honour, the fact that the

21 original Trial Chamber may have been grossly in error as to more than one

22 aspect of its reasoning is even more reason to entertain disquiet rather

23 than less, because we cannot know, and it may be that in determining the

24 sentence of seven years, they had taken into account the defect, as they

25 perceived it, in him not giving evidence, by increasing an original

1 grossly defective sentence of, say, three and a half years. They might

2 have doubled it.

3 JUDGE HUNT: You ask us, then, to assume that they were not only

4 wrong in the assessment of seven years, but they were grossly wrong,

5 because they probably started at three and a half.

6 MR. MORRISON: It's a possibility.

7 JUDGE HUNT: Well, yes, but a possibility isn't sufficient,

8 surely.

9 MR. MORRISON: A possibility -- where there has been a series -- I

10 temper what I say, of course, out of respect to the former members of the

11 original Trial Chamber. Where there have been a series of manifest errors

12 in a judgement, the best policy, in my respectful submission, for an

13 appellate tribunal is to take a very long and distant view of the original

14 decisions and reapply the basic principles.

15 JUDGE HUNT: But you do have to show that the Trial Chamber erred

16 in some identifiable way. Was it outside the exercise of their discretion

17 to say that because it was impossible - and after all, they saw the

18 history of it - that one year was sufficient?

19 MR. MORRISON: Two points. First of all, of course, this is an

20 appeal not from the original Trial Chamber, and therefore the

21 determination of the original Trial Chamber is, as it were, passed into

22 history.

23 JUDGE HUNT: I'm sorry. I was talking about the second Trial

24 Chamber.

25 MR. MORRISON: Yes.

1 JUDGE HUNT: Was there an error that they made in assessing one

2 year?

3 MR. MORRISON: Your Honour, yes, because if the defect is a defect

4 that goes to the heart of the system, and effectively a reversal or an

5 ignoring of the burden and standard of proof, which is what it amounts to,

6 it's such a fundamental defect that the redress has to be seen by an

7 impartial observer, somebody in the public gallery looking inside and

8 saying, "That was a defective piece of reasoning, a fundamentally

9 defective piece of reasoning. It went to the heart of the burden and

10 standard of proof in a criminal case." What is the redress going to be?

11 Is the redress going to be nominal or is the redress going to be

12 fundamental? If they walk out of the building saying the redress has been

13 nominal, they may not have a great deal of confidence in the system. If

14 they walk out of the building saying,"It's not exactly what I would have

15 done, but, yes, that's a fundamental redress," then there is confidence in

16 the system, and that is the general consideration of criminal

17 jurisdiction, about which I have no doubt Your Honour was referring a few

18 moments ago.

19 JUDGE HUNT: I think that what you're trying to do is to obtain

20 compensation for your client for the error the Trial Chamber made, if I

21 may put it as baldly as possible.

22 MR. MORRISON: I don't think the word passed my lips.

23 JUDGE HUNT: No, but that's the effect of it. You're saying that

24 the Trial Chamber should have disregarded what they thought would be an

25 appropriate sentence, without the reference to the impermissible

1 observation, by overcompensating your client so that the public would

2 understand how fundamental the error had been.

3 MR. MORRISON: First and foremost, in my submission, the error is

4 inarguably fundamental. It's about as basic an error as one would expect

5 to see coming out of a court dealing with an adversarial system where the

6 burden and standard of proof lies upon the Prosecution. I'm sorry if

7 those are in strong terms, but it is; it's a basic and fundamental error.

8 It's the sort of error that if one made it as an advocate standing in

9 court in my jurisdiction, you'd have your ears pulled off by the judge.

10 It's that fundamental. And therefore, to maintain a degree of confidence

11 in the system, where there has been a fundamental error, even if it was a

12 question of overcompensating - and I don't concur, with great respect,

13 that it is. I say it's simply a proper balancing exercise - it is better

14 that it is seen to be -- that that sort of error is seen to be so

15 dismissed that it will not occur again in the future.

16 JUDGE HUNT: I suppose it would be a fairly fundamental error by a

17 Trial Chamber to overlook the fact that the accused had spent two years in

18 custody before the trial and hadn't taken that into account in the

19 sentence to be imposed. That would be fairly fundamental, wouldn't it?

20 MR. MORRISON: Depending on the circumstances of the case, it may

21 well be, yes.

22 JUDGE HUNT: Yes. But you wouldn't suggest, would you, that the

23 sentence should be adjusted by more than the period that the fellow had

24 spent in custody awaiting the trial?

25 MR. MORRISON: It may, in the circumstances, if the period in

1 custody was so fundamental, it may amount to an abuse of process, and

2 there may be an argument as to that, but that would be an argument which

3 would have been raised before trial.

4 JUDGE HUNT: Have you found any authority for this sort of

5 approach?

6 MR. MORRISON: Equity.

7 JUDGE HUNT: That's not an authority.

8 MR. MORRISON: It's a principle, and it's a principle upon which

9 this Court is founded, all courts are founded.

10 JUDGE HUNT: Equity means a fair adjustment. You're asking for an

11 overcompensatory one.

12 MR. MORRISON: Your Honour, it's a matter for discretion. If you

13 ask me that question and expect me to agree with it, I would respectfully

14 decline to do so.

15 JUDGE SHAHABUDDEEN: Judge Gunawardana.

16 JUDGE GUNAWARDANA: Can you tell us the circumstances in which the

17 trial had made the observation in respect of what circumstances relating

18 to the accused that he said an adverse inference can be drawn?

19 MR. MORRISON: Well, is Your Honour asking me what the original

20 Trial --

21 JUDGE GUNAWARDANA: Yes.

22 MR. MORRISON: -- Trial Chamber said? That is to be found -- I'm

23 sorry. It is alluded to in the judgement of the second sentencing

24 Tribunal. It's at paragraph 21, Your Honour. I quote. The whole

25 paragraph bears reading:

1 "The final matter relating to Mr. Mucic concerns remarks made by

2 the Trial Chamber, when imposing sentence upon him, when it said that the

3 accused had made concerted and sustained efforts where he could intimate,"

4 that must be intimidate, "witnesses and to suborn favourable evidence from

5 them."

6 That was a subject of a -- there was no evidence as to that, and

7 that was a subject of a separate complaint.

8 MR. MORAN: Excuse me, Your Honours. My client has been

9 signalling me. He would like to have -- could he have a five-minute

10 recess or a ten-minute recess?

11 JUDGE SHAHABUDDEEN: Mr. Morrison, would it be convenient, then,

12 if we suspended at this time for 15 minutes?

13 MR. MORRISON: I'm grateful for Your Honour's question. The

14 answer must be yes, because, as it were, my convenience is matched by the

15 defendant's inconvenience.

16 JUDGE SHAHABUDDEEN: We'll suspend for 15 minutes.

17 --- Recess taken at 10.40 a.m.

18 --- On resuming at 11.02 a.m.

19 JUDGE SHAHABUDDEEN: The Appeals Chamber stands resumed.

20 Mr. Morrison, you have the floor.

21 MR. MORRISON: Much obliged. Your Honour, I had just reached the

22 part of paragraph 21 where the original Trial Chamber indicated in their

23 judgement about Mr. Mucic, and I quote:

24 "His demeanour throughout the proceedings suggests that he appears

25 to have regarded this trial as a farce and an expensive joke."

1 All I can say about that is that that was purely, obviously, the

2 Trial Chamber's view of Mr. Mucic. There's no evidence one way or the

3 other as to how he regarded the trial. That is simply, in my respectful

4 submission, a prejudicial remark which is uneasy, in light of what they

5 immediately say afterwards:

6 "He has declined to give any oral evidence, notwithstanding the

7 dominant position he played in facts giving rise to the prosecution of the

8 accused persons."

9 They there make the juxtaposition between his declination to give

10 evidence and their view that he held a dominant position. In those

11 circumstances, in my respectful submission, they must have held that as a

12 very prejudicial feature of the case, otherwise why make the remarks as

13 they did, in those terms and in the context of what they said before?

14 JUDGE GUNAWARDANA: Thank you.

15 MR. MORRISON: May I just go back, Your Honours, to deal with the

16 matter, having had the opportunity to think about it a little more. His

17 Honour Judge Hunt made the observation about the comparison between

18 somebody being in custody pre-trial. Thinking about that, with great

19 respect, there can be no real nexus between somebody being in custody

20 pre-trial, because that doesn't affect any prejudicial view of the

21 Tribunal during the course of the trial itself. It's a separate issue.

22 But what it might come to is this. And one always hesitates to draw upon

23 personal experience, but I must, because it illustrates the matter

24 nicely.

25 I have been involved in a case where a person in England was

1 waiting, not in custody, but simply waiting for trial for three years, for

2 no other reason than the Crown Prosecution service had been dilatory.

3 When it came to his trial, he was duly tried for stealing money from the

4 company in which he worked and was convicted and sentenced. Inevitably,

5 he was sentenced to a custodial sentence for breach of trust. The trial

6 judge made the remark - in my submission, quite properly - that he was

7 reducing the sentence passed upon the defendant because of the amount of

8 time he had spent in custody -- amount of time he had spent waiting for

9 his trial, and therefore the inevitable stress and strain upon him was

10 greater than it would have been for most people. So in as far as there's

11 an analogy at all, it would be a proper analogy, in my respectful

12 submission, at the sentencing stage but not at the determination of guilt

13 or innocence.

14 JUDGE SHAHABUDDEEN: Thank you, Mr. Morrison.

15 One small question, Mr. Morrison. You were good enough to give us

16 your experience in your jurisdiction, and you said something to the effect

17 that the right to silence was absolute and a member of the bar who

18 infringed that right would be in danger of having his ears pulled. What

19 has happened with the 1994 United Kingdom act which I believe qualified

20 the right of silence in certain ways? Has it been repealed?

21 MR. MORRISON: No, no. With great respect, Your Honour

22 misunderstood the analogy I was making. I wasn't saying that the right of

23 silence was as sacrosanct in my jurisdiction. I only wish it was. I said

24 that in many jurisdictions it's sacrosanct, where there's an adversarial

25 process. What I meant to say was, or what I meant to say was - and I

1 think the transcript will bear me out - that if an advocate made an error

2 as basic as that, not necessarily that error, but an error as basic as

3 that, in front of a Tribunal, he would be heavily criticised for it. It's

4 the seriousness of the error, not necessarily the actual context of the

5 error.

6 JUDGE SHAHABUDDEEN: So you weren't necessarily adverting to the

7 position in your own jurisdiction.

8 MR. MORRISON: I wish I could. It's a source of, for me

9 personally, some embarrassment.

10 JUDGE SHAHABUDDEEN: Did you have a case which went to the

11 European Court of Human Rights, and that court, in effect, held - I

12 believe I'm correct in this, but I'm open to qualification - that the

13 right to silence may be varied depending on the strength of the case which

14 the accused has to meet?

15 MR. MORRISON: Under the HCR ruling in the case in point, and I

16 can't --

17 JUDGE SHAHABUDDEEN: Murray's case.

18 MR. MORRISON: Your Honour, yes. -- is that Strasbourg determined

19 it to be a qualified right and one of proportionality, and proportionality

20 is one of the features of the Human Rights Act in the United Kingdom that

21 gives effect to the HCR legislation. But we are blessed in this Tribunal

22 that we don't have the 1994 act.

23 JUDGE SHAHABUDDEEN: Good. But we have this, do we: We have it

24 from the Appeals Chamber, after a thorough and careful examination of

25 comparative jurisdictions, that the right is absolute and it applies to

1 the sentence stage as well. But now there's a question of waiting,

2 waiting the effect of a breach of that right, say as it pertains to the

3 conviction stage and as it pertains to the sentencing stage. Could we

4 properly, in your opinion, take into account the qualifications which

5 exist in certain jurisdictions on the operation of that right to weight

6 the effect of the breach of the right? In this case, after all, the

7 adverse comment made by the Trial Chamber occurred during the sentencing

8 stage, I believe, and not during the conviction stage. What do you say

9 about that?

10 MR. MORRISON: It would be disingenuous to suppose that an

11 appellate chamber couldn't take that view, but it would have to be, in my

12 respectful submission, very sure that it could determine with some

13 certainty the degree of prejudice that had actually had been engendered,

14 and the difficulty is in most cases - and it's certainly the difficulty in

15 this case - that one cannot tell. It is speculative as to the degree of

16 prejudice that was applied by the original Trial Chamber. It's not as

17 speculative as it might be, because we can see the comments in paragraph

18 21, where they're not only saying he declined to give oral evidence, but

19 the accused was criticised for his demeanour, and indeed quite falsely -

20 and I say that without reproach, because there was no evidence of it -

21 made concerted and sustained efforts to intimidate witnesses. There was

22 no basis for that remark whatsoever. There was no evidence. And had

23 there been a suggestion he had done that, he would have faced contempt

24 proceedings. That was, with respect, a curiously prejudicial remark.

25 But to go back to Your Honour's question: Plainly, if it was

1 possible, by an analysis of the judgement, if the judgement had been so

2 carefully written and had descended into such particulars that you could

3 see exactly what the extent and formation of the prejudice was, then the

4 approach of the Appeal Chamber could well be one that Your Honour

5 advocates. It would have been an extremely dangerous approach, in my

6 submission, and likely to be -- the temptation might be in those

7 circumstances to - subconsciously at least - to submerge the principle

8 under the facts, and in my respectful submission, the principle must

9 always prevail.

10 JUDGE SHAHABUDDEEN: Thank you, Mr. Morrison. You have been very

11 helpful. On behalf of the Bench, I thank all counsel who have spoken on

12 behalf of the appellants.

13 I would now turn to the Prosecution.

14 [Appeals Chamber confers]

15 JUDGE SHAHABUDDEEN: I'm sorry. Yes. There are some individual

16 issues left to be dealt with by Mr. Moran and then by Ms. Sinatra.

17 MR. MORAN: May it please the Court. I think that in the

18 questioning we pretty well got into all of the issues we've raised.

19 Mr. Karabdic is going to discuss in a little bit of detail the Kupreskic

20 analysis and how it applies to the cases that we have.

21 I think the only other thing that I would just stress is on the

22 issues of presenting mitigating evidence. We clearly, I think, preserve

23 that error in the Trial Chamber. We presented what we thought we could

24 prove, and the Trial Chamber wouldn't even accept that filing.

25 With that, Your Honour, Mr. Karabdic will discuss the facts.

1 JUDGE SHAHABUDDEEN: Yes, Mr. Karabdic.

2 MR. KARABDIC: [Interpretation] Your Honours and the Presiding

3 Judge of this Chamber mentioned that at the previous hearing before the

4 Appeals Chamber, I spoke about the unacceptability of identification,

5 voice identification, and my submissions were not accepted, because at

6 that time this Tribunal had different law.

7 In the Kupreskic case a completely different position was taken

8 when much stricter criteria were applied for identification. In that

9 case, the position of the English and American law was accepted, and this

10 position was presented in the Appeals Chamber judgement in the Kupreskic

11 case, thus becoming the law of this Tribunal. So this is a new case law

12 for this Tribunal.

13 Therefore, Mr. Delic has a right to request that the new, more

14 advantageous law be applied to him, the new law that has been adopted in

15 the meantime. And in light of this new case law, the testimony that was

16 admitted in the original trial would not be accepted now, notwithstanding

17 the fact that the Trial Chamber was of the view that those witnesses spoke

18 what they believed to be the truth. However, this truce [as interpreted]

19 of theirs and their testimony in general was not acceptable enough to come

20 to the conclusion that Delic in fact did call out the name of the late

21 Milosevic.

22 In addition to that, I would also like to state that there are two

23 witnesses, Novica Djordjic and Milenko Kuljanin who said that they

24 recognised the voice. However, these two witnesses were contradictory in

25 their presentation and description of this entire event. We have

1 mentioned this on earlier occasions.

2 This Tribunal is well aware of the fact that the Prosecution has a

3 statement of one of the witnesses in which it is said that that inmate in

4 the tunnel number night [as interpreted] on that fateful night recognised

5 the voice of a completely different person, not of Mr. Delic. In view of

6 that, I believe that the -- that the request for revision should be

7 granted and that Mr. Delic should be acquitted on this count.

8 This is dictated not only by the interest of justice but also by

9 the duty of this Tribunal to base it's decisions on the truth alone. I

10 think that what was determined in the original judgement is seriously

11 undermined now and that this conclusion is not in accordance with the new

12 law adopted in the Kupreskic case.

13 I would like to say that for us continental lawyers, this may seem

14 somewhat unusual. However, in the common law system which is applied

15 here, there is case law which becomes law by the judgements being passed

16 and that case law has the same value as the statutory law.

17 Do any of Your Honours have any questions regarding this?

18 I would also like to say something about the sentence. My learned

19 colleague made his submissions claiming that the Trial Chamber did not act

20 in accordance with the decision of the Appeals Chamber, the second Trial

21 Chamber. However, I would like to say that within the instructions given

22 to the second Trial Chamber, this Trial Chamber did not adhere to them.

23 This Trial Chamber put into the instructions received from the Appeals

24 Chamber the words "if any," and it did so completely on its own, thus

25 hurting the interests of my client. In doing so, the Trial Chamber

1 disobeyed the fact that the instructions of the Appeals Chamber are

2 mandatory for the Trial Chamber.

3 The Trial Chamber also through -- the Trial Chamber violated the

4 right of my client to have his sentence reduced in accordance with

5 paragraph 1 of the Appeals judgement. Many arguments and many things

6 that -- that are in favour of my client were thus disregarded. And it

7 should not have been so because that was contrary to the instructions of

8 the Appeals Chamber.

9 The second error made with respect to the sentencing, made by the

10 Trial Chamber, is -- is the one that pertains to the length of discussion

11 of the deeds that were still attributed to Mr. Delic. And based on the

12 analysis of the graveness of these deeds, the Trial Chamber issued a new

13 sentence, which in my opinion is a trial de novo, at least with respect to

14 the sentence.

15 The Trial Chamber assessed the mitigating circumstances on its own

16 without giving an opportunity to the parties to present their arguments on

17 the issue. The Trial Chamber also completely neglected the mitigating

18 circumstances, both those that were presented by the counsel of the

19 accused and those that were acknowledged in the initial judgement of the

20 initial Trial Chamber.

21 In my opinion, the 20-year sentence should be taken as such --

22 should have been taken as such by the Trial Chamber and analysed the

23 extent to which the conviction on count 1 affected the length of the

24 sentence. This crime under count 1 was the gravest crime for which

25 Mr. Delic was prosecuted, and it pertained to the murder of an old,

1 feeble, ill man, a murder committed out of base motives, a murder that was

2 committed as a revenge.

3 It is true that this crime is what mostly led to the sentence of

4 my client. Therefore, the Chamber should have assessed that fact and

5 adjust the sentence accordingly. A sentence so adjusted would be a

6 sentence for total criminal behaviour of Mr. Delic less the crime under

7 count 1. However, under Article 41 of the Criminal Code of Socialist

8 Federal Republic of Yugoslavia, which under Article 65 of this Tribunal's

9 Statute is applied or should be taken into account when sentencing the

10 accused, sets forth that in sentencing, the Chamber should also analyse

11 the social danger of the deed as well as the social danger posed by the

12 perpetrator. This reduction of the sentence to which I alluded so far

13 would only pertain to the reduction of sentence which is caused by the

14 reduced social danger of the crime committed. However, after vacating the

15 conviction under count 1, Delic may not be considered a person -- the same

16 person that was described in the Trial Chamber judgement. All of these

17 negative characteristics given by the Trial Chamber in its judgement are

18 mostly based on his conviction under count 1.

19 Therefore, I think that since it is established that Mr. Delic is

20 not the kind of person he was believed to be by the Trial Chamber, the

21 original Trial Chamber, a further reduction is due because he is not the

22 dangerous person he was described by the original Trial Chamber.

23 Therefore, I believe that the proposal we gave in our appeals brief is

24 well grounded.

25 Any questions, Your Honours?

1 JUDGE SHAHABUDDEEN: Thank you. Thank you very much.

2 We will now give the floor to Ms. Sinatra who will speak to us on

3 individual issues which remain in respect of Mr. Landzo.

4 MS. SINATRA: Thank you very much, Your Honours. We were given an

5 instruction not to regurgitate our briefs, and so I intend to make this as

6 brief as possible. I just wanted to bring to the attention of the Court

7 that during the Kupreskic discussion earlier, Judge Hunt astutely and

8 correctly brought to our attention that the jurisprudence of this Tribunal

9 is based upon general principles of justice and general principles of

10 fundamental law whether we find it written in one of these case studies or

11 not. And Mr. Landzo and the other appellants in this case, we all agree

12 with that premise. We are here out of the principles of fairness.

13 We also support and agree with the arguments proposed by Mr. Mucic

14 regarding the fundamental unfairness of the interpretation by the second

15 Trial Chamber of the first Trial Chamber -- of the first Appeals Chamber's

16 mandate. And the first Appeals Chamber stated that it remits to a Trial

17 Chamber to be nominated by the President of the Tribunal the issue of what

18 adjustment, if any, should be made to the original sentences imposed on

19 Hazim Delic, Zdravko Mucic and Esad Landzo to take account of the

20 dismissal of these counts.

21 The Trial Chamber further ordered that the calling of further

22 evidence was unnecessary since the Appeals Chamber had defined the issues

23 so narrowly. And the Trial Chamber, the second Trial Chamber, rejected

24 any attempt by the appellants to -- by the accused to introduce any

25 further evidence at that time.

1 So if we look at Article 24(2) and Rule 101(B), we can understand

2 that the requirements of those under sentencing, no matter which Trial

3 Chamber it is, would require further evidence. The current circumstances

4 of the accused must be reflected in any new sentence.

5 Instead, what we found were three new strangers on a second Trial

6 Chamber and who at minimum should have heard evidence regarding the

7 current circumstances of the accused prior to sentencing. This is the

8 same kind of fundamental principle of law that Judge Hunt referred to

9 earlier.

10 As far as the cumulative charging and sentencing is concerned, we

11 support and we also find relevance in the propositions and suggestions of

12 Judge Hunt and Judge Bennouna in their separate opinions in the first

13 appeal.

14 I think that that warrants -- I know that you have this before

15 you, but just for the record, the authors of the separate opinion

16 recognised certain issues that apply to sentencing why evidence should

17 have been presented and how this sentencing affects not only how much time

18 the accused will be serving but also where he will serve his sentence,

19 whether he will be allowed to be patrolled. And the authors say

20 secondly - sorry - "We give our reasons as to why cumulative convictions

21 in relation to the same conduct, as well as cumulative penalties in

22 sentencing are impermissible. The fundamental question raised by this

23 issue is that it is necessary to avoid any, any prejudice being caused to

24 an accused by being penalised more than once in relation to the same

25 conduct. Prejudice to the rights of the accused are the very -- or the

1 very real risk of such prejudice lies in allowing cumulative

2 convictions."

3 I'm sure this Court is familiar with this separate opinion, but it

4 goes on and on to explain how the sentence, even if the sentence remained

5 the same after they dismissed the Article 3 convictions, that this

6 sentence will affect future decisions on sentencing, release, parole, and

7 rights of the accused while being detained.

8 Well, at this point, I think we agree with the arguments of Mucic

9 and my esteemed colleague Mr. Murphy and we would like to reserve the

10 right for rebuttal after the Prosecution's position.

11 Do you have any questions?

12 JUDGE SHAHABUDDEEN: Thank you, Ms. Sinatra. Thank you.

13 MS. SINATRA: Thank you.

14 JUDGE SHAHABUDDEEN: Now, I hope I'm correct this time in saying

15 that that ends the case for the appellants. If so, I do give the floor to

16 leading counsel for the Prosecutor, Mr. Farrell.

17 MR. FARRELL: Thank you, Your Honour. I'll be speaking in

18 relation to two matters - excuse me, Your Honour. I'll be speaking in

19 relation to two matters this morning and then my colleagues will speak to

20 what are essentially the substantive issues in the Prosecution's

21 submission on the appeal. The three real or substantive issues relate to

22 the effect of the dismissal of the cumulative conviction, the effect of

23 the adverse comment to testify and the effect in Mr. Delic's case of the

24 quashing of convictions.

25 The dismissal -- the effect of the dismissal of the cumulative

1 convictions and the affect of the adverse comment to testify will be dealt

2 with by my colleague Ms. Brady, and the effect of quashing the convictions

3 will be dealt with by my colleague Mr. Carmona.

4 There are two other issues, somewhat preliminary matters, that are

5 raised by the appellants or at least one of the appellants, and the other

6 appellants. One relates to jurisdiction, and the other relates to a

7 request by Mr. Delic to reconsider the original Appeals Chamber's decision

8 in light of Kupreskic. It's those two, as I would submit, preliminary

9 matters, the jurisdictional issue and the review based on Kupreskic, which

10 I will address.

11 I hope, in light of the time, to finish simply within about 15 or

12 20 minutes and leave some time for questions and then allow my colleagues

13 to speak, so I'll simply start with the first issue, which is the

14 jurisdictional one.

15 Essentially, the submission of the appellants is that they wanted

16 a complete rehearing on sentence. They have, therefore, formulated their

17 ground of appeal to try and achieve that result. They attack the remittal

18 on the basis that there was no jurisdiction to remit, and then they

19 proceed to do an interpretation both under Article 25 and Rule 117.

20 First, before dealing with that issue, the first submission I wish

21 to make, quite simply, is that these appellants are asking this Appeals

22 Chamber to review its decision that it implicitly had the power to remit.

23 I appreciate the distinction of Mr. Murphy that the appeal was from the

24 Trial Chamber's refusal on their motion to jurisdiction, but as you

25 recall, the motion itself was that the Appeals Chamber did not have the

1 authority to remit. So -- and therefore, it was actually challenging a

2 decision of the Appeals Chamber and is now seeking to challenge that

3 again.

4 As it is essentially a motion for reconsideration, they put

5 forward two submissions essentially. One, that the decision was per in

6 curiam and that the other was there were no submissions made on this

7 issue. With respect, it's the Prosecution's position that the Appeals

8 Chamber clearly addressed their mind to this issue, was fully informed of

9 it. The Appeals Chamber was fully aware, of course, of its previous

10 decision in Tadic where it recognised the right to remit, and obviously

11 was aware of the issue in Tadic where it was remitted for a particular

12 purpose.

13 The second submission they've made is that there was no

14 submissions on this issue before the Appeals Chamber, and, therefore, they

15 should be permitted to raise the issue, the jurisdictional issue, now

16 that's in their briefs.

17 There were no submissions made on this issue, that's correct. But

18 as we know from the Appeals Chamber's decision in Jelisic, the right to

19 make submissions is generally in situations where a party's rights are

20 affected. The rights that they claim which are affected are the right to

21 introduce mitigating evidence and their right to make submission on the

22 change in the law since their original sentence.

23 With respect, there is no right to admit mitigating evidence on

24 the resentence. In fact, if the Appeals Chamber can revise, as they did

25 in Aleksovski, without hearing any mitigating evidence at the point of

1 revision after it was determined that the sentence was unjust, the Appeals

2 Chamber, therefore, has demonstrated that they don't -- are not required

3 to hear mitigating evidence at the time of the resentence be it by the

4 Appeals Chamber on a revision or be it by the Trial Chamber.

5 As well as, we're aware from the President's decision in

6 Kolundzija where the President released Mr. Kolundzija on early release,

7 the President took into consideration the post-conduct -- I'm sorry,

8 post-trial or post-conviction conduct, and therefore there is a right to

9 hear this material, hear this evidence.

10 Regarding their other right or their claim that they were

11 prejudiced, which is they were not able to make submissions on the

12 subsequent decisions, the subsequent jurisprudence, with respect, the

13 issue of parity is not applicable. The Appeals Chamber determined, based

14 on full submissions and argument, what the appropriate sentence was for

15 these three appellants. The subsequent case law of this Tribunal cannot,

16 therefore, change the original decision of the Appeals Chamber and the

17 issue of parity is something which can be raised when you challenge the

18 sentence itself. It's not something that you can ask for a re-visitation

19 of your sentence.

20 In light of those submissions, it's submitted that the Appeals

21 Chamber's implicit decision to remit cannot be appealed in this case, and

22 the Appeals Chamber did make a determination that it had the authority to

23 remit at that time. And unless the Court grants leave to reconsider its

24 implicit decision, that matter has already been dealt with by the Appeals

25 Chamber.

1 Those would be my submissions on an initial preliminary issue

2 about whether or not this can even be raised at this stage.

3 Regarding the substantive issue of jurisdiction, I simply make one

4 point. The appellants state that where the law -- sorry, the Statute is

5 unambiguous, it cannot be interpreted to result in the approach that the

6 Prosecution submits, and they point to Article 25, I think it's fair to

7 submit that Article 25 is not an Article which is unambiguous on this

8 issue. There's no power to remit specifically, expressly stated under

9 Article 25. It's not an unambiguous interpretation. Article 25 does not

10 give -- under the specific wording does not say the word "remit." In

11 fact, as this Court has already stated, Article 25 doesn't even permit an

12 appeal against sentence. But this Court has found that it's implied.

13 Clearly it's implied in the reversal, that if the matter is reversed or if

14 the matter is dealt with by the Appeals Chamber, it certainly must have

15 the power to remit. And Rule 117(C), according to the appellants'

16 argument is, in my respectful submission, is that 117(C) therefore limits

17 the authority under Article 25. They admit there's a power to remit.

18 They admit that it's implied under Article 25. But then they say the

19 power to remit has to be only for a full sentencing because look at

20 Article 117(C).

21 Well, with respect that's backwards. Article 235 of the Statute

22 is the enabling legislation which creates the power to remit in the first

23 place. Rule 117 doesn't limit the power to remit, it simply is a

24 procedure if you do remit the matter back or if you do -- you do have the

25 authority of the procedure for sending it back for retrial.

1 If I can just, secondly, deal with their reliance on Tadic. The

2 appellants argue that Tadic is not authority -- sorry, is authority for

3 remittal but not authority for remittal for a limited purpose. With

4 respect, that was never addressed in Tadic. It was not a submission that

5 was dealt with in Tadic, and it was not specifically addressed by the

6 Court. But what's interesting is that Tadic, in fact, unless I may have

7 misunderstood Mr. Murphy's submissions, but if I haven't, the Landzo reply

8 brief, I think it's at paragraph 5, seems to state that the Tadic remittal

9 was a new trial on the issue of sentencing as a whole. With respect, it

10 wasn't. What happened in Tadic was that it was not -- it didn't consider

11 all the -- taking into account all the previous offences for the accused

12 for which he'd originally been convicted as is stated in the reply brief,

13 unless I've misread it. It only sent it back on the ones for which the

14 Prosecution appeal was successful. So it didn't accepted it back for a

15 new full hearing on all the offences, it sent it back for a limited

16 purpose which is those sentences for which the Prosecution's appeal should

17 result in conviction. So with respect, it did permit a remittal for a

18 narrower issue than a full sentencing on all the counts.

19 Then the next point is, well, could it then be sent back for even

20 a narrower issue, which is a remittal on the three issues for which there

21 was an error? And with respect, I see no reason either in the law or in

22 the Statute, in the terms of the Statute, which would result in anything

23 different.

24 And lastly, I note once again that though it wasn't specifically

25 addressed, the Appeals Chamber in Kupreskic decided to take into

1 consideration in relation to Mr. Santic a matter with respect to his

2 cooperation. This is post-trial. There was cooperation by Mr. Santic,

3 and it was raised as part of his sentence.

4 The Kupreskic Appeals Chamber, it was submitted by the

5 Prosecution, could do two things. They could sent it back, if they felt

6 it necessary, on that single issue, or they could actually decide it

7 themselves. In my submission, in paragraphs 461 and 462 of Kupreskic, the

8 Appeals Chamber recognised it had the authority to remit it back on that

9 single issue, but the wording it stated was that the Appeals Chamber

10 decided it was not necessary in the facts of this case. Once again,

11 though it's not specifically addressed, it is implicitly recognised.

12 And lastly, addressing the claim that even if there was a limited

13 hearing, they should have -- mitigating evidence should have been heard in

14 any event, that that denial created some type of prejudice or unfairness.

15 Without resubmitting, the hearing was for a limited purpose. The

16 mitigating evidence up and to the point of trial was dealt with by the

17 Trial Chamber and reviewed by the Appeals Chamber. There was no

18 mitigating evidence submitted at the time of the Appeals Chamber, so

19 essentially the time we're looking at is not actually from the first Trial

20 Chamber to the second Trial Chamber but presumably the time frame when

21 they claim they couldn't put it forward, which would be from February 2001

22 until October 2001, which was the new sentencing date.

23 In my respectful submission, there is no error in not permitting

24 at the second sentencing hearing the mitigating evidence. As I stated in

25 Aleksovski, when they revised the decision, they didn't take into

1 consideration mitigating evidence, and I don't think there's an assertion

2 that that was an error.

3 As well, though it's not directly on point, the Appeals Chamber in

4 Jelisic has held that post-conviction conduct, specifically in Jelisic he

5 attempted to put forward a report from the detention centre was not found

6 to be admissible on the appeal. Now, it's arguable that the reason

7 that -- this is also found and noted by the Kupreskic Appeals Chamber in

8 footnote 741.

9 Now, it's arguable that the Jelisic Appeals Chamber declined to

10 hear post-conviction conduct on the basis that it could not be used to

11 attack the sentence. The sentencing judgement clearly couldn't have been

12 in error because it didn't have that conduct before it.

13 I won't go through it now, but I draw your attention to the

14 language. It's -- it's a little uncertain in that the language in Jelisic

15 was that the post-sentence behaviour is not relevant to any issue before

16 the Trial Chamber - that's understandable - nor is it capable of being

17 considered by it. Now, it doesn't really make sense because, of course,

18 it wouldn't even be available at the time it considered. But if what it's

19 saying is that that type of conduct is not relevant to the initial

20 sentencing, then the analysis is one of what is the purpose for which the

21 Chamber addresses the sentencing issue? In my submission, the initial

22 Trial Chamber has a full hearing and therefore, of course, it's

23 considered.

24 Appeals Chamber will not accept post-conviction conduct because of

25 the nature of its hearing. It's not a new sentencing hearing. It's to

1 review the original sentencing hearing. The Appeals Chamber has the

2 discretion, I would submit, not necessarily to receive mitigating evidence

3 as it did in Aleksovski, and it just revised the sentence once it found

4 there was an error.

5 And where the remittal is for a limited purpose, then once again

6 the Trial Chamber has a discretion in this case to address the issues for

7 which it was remitted, just like in relation to all the other functions

8 performed by either the Trial Chamber or the Appeals Chamber in relation

9 to sentencing and in relation to -- in considering whether they should

10 take into consideration post-conduct behaviour.

11 Those are my submissions on that issue before I move to the

12 second.

13 JUDGE SHAHABUDDEEN: Judge Hunt.

14 JUDGE HUNT: Mr. Farrell, let's take the situation which I

15 understand to be the usual one in a criminal appeal court where there has

16 been an appeal against sentence. Everybody would agree that it's not a

17 rehearing on sentence and, therefore, additional evidence is not

18 admissible on that issue. But once an error has been accepted, the

19 Appeals Chamber has to revise the sentence, to use the wording of the

20 Statute.

21 It may be that the nature of the error made by the Trial Chamber

22 is such that the Appeals Chamber may consider it is necessary to

23 resentence.

24 Now, in each of the cases here, there was an appeal against

25 sentence, and it was suggested there had to be a resentence. So that if

1 each of the appellants had, as I believe they should have, put on material

2 for consideration only if they had been successful in their appeal against

3 sentence, do you suggest the Appeals Chamber could have refused to hear

4 it? Because that seemed to be the effect of what you were saying earlier

5 on.

6 MR. FARRELL: That's the exact issue, Your Honour, and it's an

7 interesting one. In the jurisdictions I'm aware of and I think similar to

8 the ones you're aware of, the Appeals Chamber would probably consider that

9 evidence.

10 The issue is what is it relevant to? It's not relevant to the

11 criminal conduct. It's not mitigating of the criminal conduct. It's not

12 relevant to the original sentence, and it's not relevant to the errors for

13 which the Appeals Chamber has to revise the original sentence.

14 JUDGE HUNT: Well, certainly the Trial Chamber should have been

15 able to foresee into the future, as well as anybody could, as to what

16 their conduct may be likely to be, for example, on matters of

17 rehabilitation. And if that is a matter which should be taken into

18 account in a resentencing, can the Appeals Chamber refuse to accept it?

19 MR. FARRELL: I think, and I don't want to seem harsh here because

20 I think it's within the discretion of the Appeals Chamber to accept it,

21 the flip side, of course, is what you are implying. Well, then, do they

22 have the discretion to reject it?

23 JUDGE HUNT: Yes.

24 MR. FARRELL: And the question is if it is a matter to be

25 considered -- if the sentencing is actually to determine what is the

1 appropriate sentence for the conduct for which the convicted person has

2 been convicted, and if the post-conduct behaviour is relevant, as in

3 Kolundzija, to release, then the Court could. I mean, that's the purpose

4 of the sentence, is something to determine what his sentence should be

5 placing him back at the time in relation to the criminal conduct for which

6 he's been convicted. As long as there's an avenue where that can be

7 considered and it is considered in the release or the execution or service

8 of the sentence, then it may not be an error by the Appeals Chamber to

9 decline to hear it.

10 JUDGE HUNT: But aren't you taking a very narrow view of the

11 matters which any sentencing Court have to consider? It's not simply the

12 criminal conduct. It's also prospects of rehabilitation that must be

13 relevant. The -- assume that they had seen the light and were prepared to

14 confess what they had done and that they recognise the error of their

15 ways. The Rules of the Tribunal do not encourage that sort of evidence

16 during the course of the trial because it has to be given in the course of

17 the trial, and there are no longer separate sentencing proceedings, a

18 matter which, to use a phrase I have some unease about. But that is the

19 fact. They can't do it then. Why should they not be entitled to say, "I

20 have seen the error of my ways. I have done a terrible thing, and I have

21 accepted some religious tenets," or something, if they had put it

22 forward?

23 MR. FARRELL: Of course and I recognise the distinction you're

24 making and you have made, of course, to my learned colleagues.

25 The first submission is that that is an issue which goes to the

1 execution of the sentence, in my submission. That's an issue that goes to

2 whether or not the person should be released early or what consideration

3 should be given because of the fact that they have in fact admitted guilt

4 or taken steps to find other ways to relieve themselves of the burden.

5 But without trying to mislead the Court, of course I recognise

6 that the Appeals Chamber in Kupreskic has recognised that post-conviction

7 cooperation with the Prosecution is a relevant factor. Therefore, it's,

8 quite frankly, post-conviction conduct. But that -- if I can make one

9 final comment. It may not be assisting any more. But that's because of

10 the specific Rule which indicates that that factor is to be considered,

11 because it appears that the Rules are trying to encourage that sort of

12 conduct. And that's an exception to what I say is the general sentencing

13 regime.

14 JUDGE HUNT: Thank you.

15 JUDGE SHAHABUDDEEN: Judge Gunawardana.

16 JUDGE GUNAWARDANA: I believe I understood you right. You are

17 saying that the appeal cannot be reheard, in a matter of saying. So that

18 is the position. The reference has always to be limited when you refer it

19 back to the Trial Chamber. The guidance given in this instance was to

20 look at it from the position of the effect on the cumulative charges. So

21 my question is: Can the Appeals Chamber restrict its scope when it makes

22 that order?

23 MR. FARRELL: In the Prosecution's submission, yes, it can.

24 There's authority to remit. There's authority to remit for particular

25 purposes. It's been done. And it can remit solely for the purposes that

1 are to be -- where there was some error. In my respectful submission - I

2 mean, I'm just reiterating what is said in the Celebici Appeals Chamber

3 judgement - the purpose for which it's being sent back is not the purpose

4 for which my learned colleagues are asking the sentencing to take place;

5 it was for the limited purpose to correct and to safeguard against any

6 possible errors in result of the three issues that were raised by the

7 Appeals Chamber, and to protect the appeal rights. For that limited

8 purpose, they do have the jurisdiction to send it back, and the Appeals

9 Chamber has recognised the power to remit. The only issue in dispute

10 here, as I've indicated, appears to be the scope of the power to remit,

11 and in my earlier submissions, Your Honour, I have submitted that there is

12 nothing in the Articles or the Rules which prevent it, and the Articles

13 have been interpreted to permit it.

14 JUDGE GUNAWARDANA: In complying with the direction that was given

15 to the Trial Chamber, it is circumscribed to look at the issues and

16 according to only matters related to the issue that is referred to.

17 MR. FARRELL: Yes, that's my position. Thank you.

18 JUDGE SHAHABUDDEEN: One little question, Mr. Farrell.

19 MR. FARRELL: Yes, Your Honour.

20 JUDGE SHAHABUDDEEN: It's probably not germane to a great deal of

21 the discussion, but I noted with interest your submission that Rule 107(C)

22 therefore limits the authority under Article 25 of the Statute. Do you

23 recall saying words to that effect?

24 MR. FARRELL: Your Honour, I was putting forward that that would

25 be the ultimate position of the appellants. That's not the position --

1 JUDGE SHAHABUDDEEN: I see.

2 MR. FARRELL: That's not the position of the Prosecution.

3 JUDGE SHAHABUDDEEN: If one contends for the proposition that a

4 Rule could limit the Statute, what one is contending for is that a Rule

5 could amend the Statute. That is not on, is it?

6 MR. FARRELL: Clearly, the Prosecution's position is -- yes.

7 JUDGE SHAHABUDDEEN: Now, you also said that the Appeals Chamber,

8 if it were exercising its own competence to resentence, is not required to

9 hear mitigating evidence. Do I recollect right your total submission to

10 be that although the Appeals Chamber is not required to hear mitigating

11 evidence, it may, in a proper case, do so?

12 MR. FARRELL: Yes, Your Honour.

13 JUDGE SHAHABUDDEEN: In this case, I believe, somewhere in the

14 text of the judgement there's a reference to a new complete rehearing

15 being required, to be undertaken by the new Trial Chamber, the

16 reconstituted Trial Chamber. Is it possible to entertain an argument

17 where that shows that the Appeals Chamber did make a decision as to

18 whether new evidence was to be heard and that it decided no new evidence

19 is to be heard, and it was on that basis that the remission was made?

20 MR. FARRELL: That would be the Prosecution's submission, yes.

21 The specific wording --

22 JUDGE SHAHABUDDEEN: I see. Thank you.

23 Judge Hunt.

24 JUDGE HUNT: Paragraph 712.

25 MR. FARRELL: 712 and 713. Thank you.

1 If I may just comment on the second issue, if I can leave this

2 issue. If there's no further questions, I'll speak to the second issue,

3 and in light of the timing, I'll simply just inform you of the

4 Prosecution's position.

5 JUDGE SHAHABUDDEEN: Yes. Your time is still running.

6 MR. FARRELL: Actually, my time, compared to my colleagues, is

7 probably up.

8 The second issue relates to Mr. Delic's request for a review in

9 light of the revolutionary law in Kupreskic. I think the Court clearly,

10 by its questions, is fully aware of the Prosecution's submissions, and I

11 don't think I need to go into them. I'm fully prepared to answer any

12 questions.

13 The Prosecution's position essentially is there's a preliminary

14 issue. Despite the very interesting arguments of whether or not we should

15 adopt the law-of-the-case doctrine or whether res judicata applies,

16 whether this is a final judgement or not final judgement, the issue

17 doesn't even arise if the Court finds that Kupreskic is not a fundamental

18 change in the law. If the Court was to find that it was, then the issue

19 would be whether or not, if there is a change in the law, the Court would

20 be permitted to hear it, whether the conviction is final. And therefore

21 it's res judicata, or whether or not the case remains open.

22 The Prosecution's submission is that when you look at the way the

23 Celebici appeal was argued, the grounds of appeal and the submissions on

24 reliability and credibility, the Appeals Chamber addressed exactly what

25 was requested of it, and it cannot now be faulted for not addressing an

1 issue which was not before it. Secondly, the Appeals Chamber did actually

2 address both credibility and reliability, and therefore this issue doesn't

3 even arise.

4 In light of the fact that I'm cutting into my colleagues' time,

5 unless there are any questions on that issue, which I'd be happy to

6 answer, those are the comments I have to make.

7 JUDGE HUNT: A small matter. Paragraph 6.16 of your submissions,

8 when you venture into this law-of-the-case doctrine, you say the

9 difference between them is whether there is a final judgement. Now, where

10 does that fit into the law of the case?

11 MR. FARRELL: Sorry. I'm not sure if I understand your question.

12 The law of the case is that you can continue to revise up until the point

13 where there's a final judgement. After the final judgement, res judicata

14 kicks in between the parties, and therefore you cannot seek to have a

15 matter revisited if there's an intervening decision. That's my

16 understanding.

17 JUDGE HUNT: Yes. That's what I thought you were going to say.

18 But when we have a final judgement here, a final judgement on conviction.

19 Is that the final judgement you're speaking about?

20 MR. FARRELL: That's specifically it. And though I wasn't going

21 to get into it, if I may, the final judgement here is the judgement on

22 conviction. And what's interesting is that that has implicitly, despite

23 counsel for Mr. Delic's submissions, in my respectful submission, without

24 taking away his right to comment on this, of course, that's implicitly

25 recognised by Mr. Delic. Mr. Delic filed a motion for review on the basis

1 of new evidence which affected his conviction. He said in his motion for

2 review that he meets all the requirements necessary to bring a review

3 under Rule 119. Now, I don't want to pretend that this issue has been

4 litigated or it's been addressed, but clearly he can't have both. I mean,

5 if it is a final judgement, as determined by Barayagwiza, which ultimately

6 determines the issue, then he can't come now and rely on law-of-the-case

7 doctrine. If it's not a final judgement, then he shouldn't have brought a

8 motion for review, because the matter is still pending before the Appeals

9 Chamber and he could have filed it as additional evidence. But that's not

10 the case.

11 In this case, as well, in the decision on the motion for review,

12 the Appeals Chamber found that there was an ultimate decision, an ultimate

13 or final decision on conviction. Since that is the case, in my respectful

14 submission, you can't reopen up the conviction appeal in the middle of a

15 sentencing hearing, and that's why, despite my friend's comments that the

16 technical arguments were somewhat silly, the Prosecution pointed out that

17 it would have to constitute either one of two -- it would have to

18 constitute a motion for reconsideration properly in relation to a

19 conviction which was final.

20 JUDGE HUNT: You saw the point of the question. The next question

21 is: You, of all people, I think, would be eminently suited to explain to

22 us what the Canadian case means about "in the flow of the litigation," or

23 some such phrase, the case that you've just produced.

24 MR. FARRELL: Yes. I actually argued that at the trial level, so

25 I do have some intimate knowledge of it.

1 JUDGE HUNT: It's an interesting case, but how does that

2 expression fit into the final decision of the law of the case, which I

3 know comes from a different part of the continent.

4 MR. FARRELL: Of course. Thank you. My understanding of the

5 Sarson decision was that if you're still before the court, if you're still

6 in the proceedings, you can raise it. And the argument is that if, during

7 the time from which you are convicted - by the Trial Chamber, of course -

8 and the time that you appeal, the law changes, you're not bound, when you

9 stand before the appellate chamber, to the law that was in effect at the

10 time of the trial chamber. You can rely on subsequent decisions that are

11 in effect and controlling, if I can use the word, at the time of your

12 appeal. If your appeal is final, and two years later there is a change in

13 the law, you cannot come back and try to somehow put yourself back in the

14 system. And in fact, in the Sarson case - it's in the record, so I'm not

15 trying to put any evidence on the record - the applicants in the Sarson

16 case actually first recognised that and went and applied actually for an

17 extension of time to file a notice of appeal. That was denied. They

18 therefore brought a habeas corpus application and tried to argue that

19 their detention was illegal because it was based on a provision which was

20 no longer constitutional. The Court, despite that, said: You're no

21 longer before us on -- in that case, to be fair, it was on everything. I

22 mean, it wasn't like here, where we're still before you on appeal. But my

23 submission would be that the principle there is the same and that the

24 conviction appeal is final, and the conviction appeal is not before you on

25 this issue.

1 JUDGE HUNT: If that is so, your submission would be: We are not

2 in the flow of the case still here because there's been a final judgement

3 on conviction.

4 MR. FARRELL: That's correct.

5 JUDGE SHAHABUDDEEN: Thank you, Mr. Farrell.

6 MR. FARRELL: Thank you. Ms. Brady will address the next issue.

7 I'll just move out of the way.

8 JUDGE SHAHABUDDEEN: Ms. Brady.

9 MS. BRADY: May it please the Court. Your Honours, my colleague

10 Mr. Farrell has already informed you about the grounds of appeal that I'll

11 be addressing on this morning, and there are two of them. One is in

12 relation to the common ground of appeal raised by all three appellants

13 concerning the effect of the dismissal of the cumulative convictions on

14 sentence, and the other is the one that's raised specifically by the

15 appellant Mucic in relation to the third ground of his appellate brief.

16 Now, Your Honours, this morning we have not heard too many

17 arguments directly on the question of the effect of the dismissal of the

18 cumulative convictions on sentence, that is, the sentencing Trial

19 Chamber's dealing with that question. There were some submissions made by

20 Ms. Sinatra on behalf of Landzo, and I'll deal with those, and there were

21 also some tangential submissions made on behalf of all three of the

22 appellants relating to the nature of the proceedings, the proper scope of

23 the proceedings before the second Trial Chamber, which do tangentially

24 relate to this issue.

25 In my arguments, I'd like to flesh out some of the arguments we

1 made in the response brief in order to show you that the focus of this

2 question which is now before you on this issue needs to change, and it's a

3 narrow focus on this question. It's this: Did the second Trial Chamber

4 make an error of law or commit a discernible error in the exercise of its

5 sentencing discretion by failing to reduce the appellants' sentences on

6 their Article 2 convictions on the basis that their Article 3 convictions

7 were dismissed? And as the learned Judge Meron this morning pointed out

8 when he noted paragraph 42 of the second Trial Chamber's reasoning, that

9 paragraph, and paragraphs 34 to 42 that precede it, show, in the

10 Prosecution's position, that it did not make an error. Now, of course,

11 paragraph 42 sets out a summary conclusion as to why the second Trial

12 Chamber thought that the dismissal of the cumulative convictions should

13 have no effect on their sentence for the remaining counts, and, Your

14 Honours, this was after they had engaged in what we say was an entirely

15 appropriate analysis. Moreover, if I could briefly go to that analysis,

16 I'll show Your Honours that it is one that reveals no error.

17 Firstly, and most importantly, following the Appeals Chamber's

18 instructions and the many observations made by the Appeals Chamber on the

19 importance of the totality principle in sentencing, what the second Trial

20 Chamber did was to look at the totality of the appellants' criminal

21 conduct in order to reach a final sentence to reflect the totality of the

22 culpable conduct and overall culpability of the appellants.

23 Now, this morning Mr. Mucic and, if I heard correctly --

24 THE INTERPRETER: Could the counsel please slow down.

25 MS. BRADY: -- both said something to the effect that the second

1 Trial Chamber had no basis, no record upon which it was doing this

2 exercise. But we disagree with that. In fact, apart from the

3 mitigating -- what I would call the up-to-date mitigating evidence, which

4 my colleague Mr. Farrell has dealt with, in fact it did have the full

5 record before it, setting out the full circumstances of the crimes of

6 these three appellants. For Mr. Mucic, the second Trial Chamber goes into

7 a summary of the criminal conduct underlying his Article 2 convictions,

8 and then went on to consider the reasons why his original sentence was

9 considered inadequate by the Appeals Chamber, and then went on to also

10 consider the possible effect of the first Trial Chamber's adverse

11 reference to his failure to testify, and all this in light of the Appeals

12 Chamber's ten-year sentence indication.

13 For Mr. Delic, the same thing. If one looks at the approach of

14 the second Trial Chamber, it summarised the criminal conduct for which he

15 was convicted under the Article 2 and noted that the Appeals Chamber had

16 rejected his claim that his original sentence was excessive, and held that

17 while some reduction would be given in light of the acquittal for one

18 wilful killing, this would be slight in view of the serious offences for

19 which he was convicted.

20 Same analysis done in terms of Landzo.

21 Your Honours, we submit that the appellants haven't shown that in

22 doing so, the second Trial Chamber erred in concluding that the totality

23 of their criminal conduct was not reduced by quashing the cumulative

24 convictions, and that sentences of 15 years for Mr. Landzo, 18 years for

25 Mr. Delic, and 9 years for Mr. Mucic do indeed reflect the application of

1 the totality principle.

2 Now, this totality principle and the application there by the

3 second Trial Chamber shows why some of the arguments which had been put

4 forward by the appellants in their appellants' brief are too simplistic.

5 For example, merely because a defendant stands convicted of fewer

6 offences, his sentence must be reduced. Or because the first Appeals

7 Chamber thought the Article 2 offences were more specific than the Article

8 3 ones, somehow the overall assessment of his conduct is less. It's also

9 too simplistic to say that a person who is convicted of many crimes should

10 generally receive a higher sentence than one convicted of only one crime.

11 Both of these submissions fail to appreciate this totality principle in

12 sentencing.

13 Now, apart from the totality principle, which was clearly at the

14 forefront of the second Trial Chamber's mind, let's not forget as well

15 that the second Trial Chamber had, in fact, the benefit of the first Trial

16 Chamber's reasoning on this issue by way of the judgement, and this shows

17 that it was more -- that the second Trial Chamber was more than entitled

18 to conclude as it did, in paragraph 42, that the original Trial Chamber

19 specifically had this totality factor in mind in passing the sentences,

20 which clearly would have been the same without the cumulative convictions.

21 Now, we agree that one of the determinative factors when a matter

22 is remitted in this fashion back after dismissal of convictions on appeal

23 may well be the original sentencing Tribunal's intention. We take no

24 issue with that statement raised by two of the appellants. And in fact,

25 the first Appeals Chamber asked the second Trial Chamber to do this. In

1 paragraph 769, when referring to dismissals under Article 3 for Mr. Mucic,

2 the first Appeals Chamber held that this will require that the sentencing

3 consequences be considered by a reconstituted Trial Chamber which will no

4 doubt consider whether the remarks of the original Trial Chamber indicate

5 that there should be no adjustment downwards in the sentence imposed.

6 What we do say is that when they did this review or look at what

7 the first Trial Chamber had done, that the presumption-of-harm test that

8 the appellants say should have been applied actually doesn't apply here.

9 And the reason is this: Because if you look at the first Trial Chamber's

10 judgement, this shows, in several portions of that judgement, that it was

11 aware of the need not to impermissibly cumulatively punish but instead to

12 focus on sentencing for the totality of their criminal conduct.

13 Your Honours, there are several factors which we rely on for

14 this. Firstly, they make -- the first Trial Chamber made several

15 references in its judgement to the question of sentence being dependent

16 upon the particular circumstances of the crime and the role of the accused

17 in it; secondly, the use of concurrent and identical sentences for each of

18 the offenders. Now, while we agree that using concurrent sentences will

19 not of itself prove that the sentencing Tribunal is live to this

20 possibility of cumulative punishment - and indeed this principle was

21 recently upheld in the Kunarac Appeals Chamber decision - that the

22 prejudice is not automatically cured. Your Honours, we submit that a

23 reasonable interpretation of what the first Trial Chamber did shows that

24 it was specifically using this technique of concurrent sentences to avoid

25 cumulative punishment, that this was what it had firmly in its mind, and

1 we read the second Trial Chamber's notation of this in paragraph 34 to

2 support our interpretation of that approach.

3 Finally, Your Honours, the first Trial Chamber also referred to

4 the need to avoid double punishment for the same conduct based on

5 convictions for 7(1) and 7(3), which we submit shows an awareness that the

6 sentence must accurately recognise the gravity of the offences and reflect

7 the totality of the accused's criminal conduct. So even in the situation

8 where there are permissible cumulative convictions, it still must be at

9 the forefront of the Trial Chamber's mind not to punish twice for the same

10 conduct. Clearly, it can punish for the additional element represented by

11 that permissible cumulative conviction, and we would point Your Honours to

12 Your Honours' observations, the Appeals Chamber in this case, Celebici, at

13 paragraph 769.

14 So in summary on this point, Your Honours, we -- and we would like

15 to actually just address the submission made by Ms. Sinatra this morning

16 about the stigma and the problems in cumulative sentencing and the

17 reliance on the dissenting opinion of Judges Hunt and Bennouna. What we

18 say is this: that the Appeals Chamber decision which quashed the Article 3

19 convictions, that's what removed the stigma could result from the

20 cumulative Article 3 convictions and any potential collateral problems or

21 prejudice relating to early release or subsequent convictions in another

22 jurisdiction. And in remitting the matter back to the second Trial

23 Chamber in this manner for reconsideration, in which they adopted a very

24 careful approach, both totality and looking at the original sentencing

25 Tribunal's intention, this has removed any potential now for impermissible

1 cumulative sentencing, and so for this reason, Your Honour, we would ask

2 Your Honours to dismiss this ground of appeal.

3 Your Honours, before turning to the second ground related to the

4 effect of the first Trial Chamber's adverse comment on Mucic's failure to

5 testify, I'd ask Your Honours if you have any questions on the cumulative

6 convictions and sentencing point.

7 JUDGE HUNT: Ms. Brady, may I suggest perhaps that it's a narrower

8 issue even than the one you have put forward. Whilst I'm flattered that

9 some of the appellants seem to think that what I and Judge Bennouna said

10 in our dissenting opinion should be the law, on this particular issue,

11 what we said was consistent with the majority decision as to whether or

12 not the Trial Chamber, when they had imposed cumulative convictions, had

13 in fact added to the length of the sentence, and that is the issue which

14 was sent back to the Trial Chamber to determine.

15 So it's a very narrow issue: Was the Trial Chamber wrong, on an

16 appealable basis, in saying that the sentences would clearly have been the

17 same without the cumulative sentences? That's an issue, that's a finding

18 of fact which the appellants have to demonstrate is wrong on an appealable

19 basis, one which no reasonable Trial Chamber could have reached, and that

20 is the test which both the majority judgement and the minority judgement

21 posed as the issue for the new Trial Chamber to determine. That's the

22 simple issue, as I see it. Now, I don't think that anything you've said

23 is inconsistent with that, but have you got any problem with that as the

24 issue?

25 MS. BRADY: Absolutely not, Your Honour. In fact, that is the

1 issue that we would like to narrow this ground to. And the submissions

2 that we've made go to show why there was no error in that consideration of

3 that issue, because the second Trial Chamber bore in mind the two most

4 fundamental circumstances: the totality of the criminal conduct, as well

5 as the first Trial Chamber's original intent. I would submit -- we would

6 submit that as an abundance of caution, they looked below to what the

7 first Trial Chamber did, and they were satisfied that the intention of

8 that first Trial Chamber could be discerned and that no extra or harsher

9 punishment had been imposed merely by the imposition of a sentence for

10 Article 2 and Article 3 offences for the same underlying conduct.

11 JUDGE HUNT: Thank you.

12 JUDGE SHAHABUDDEEN: Judge Gunawardana.

13 JUDGE GUNAWARDANA: [Microphone not activated]

14 THE INTERPRETER: Microphone, please.

15 JUDGE GUNAWARDANA: Did the acquittal on Article 3 charges in any

16 way weaken the evidence that was available against the Article 2 charges

17 in the proof of the ingredients of the offence of Article 2?

18 MS. BRADY: Your Honour, if I understand your question correctly,

19 you're asking whether the Article 3 counts were based on the same conduct

20 as the Article 2 counts or the same evidence?

21 JUDGE GUNAWARDANA: I'm asking on the impact of the acquittal on

22 Article 3. My question is: Did the acquittal on Article 3 charges weaken

23 the evidence in regard to the proof of the ingredients in respect of

24 Article 2 charges?

25 MS. BRADY: No, it did not, Your Honour.

1 JUDGE GUNAWARDANA: Thank you.

2 JUDGE SHAHABUDDEEN: May I follow up, Ms. Brady, the last question

3 this way: In this case, the first Trial Chamber proceeded on the basis

4 that the sentences, though multiple, were to be concurrent. Is there such

5 a thing as individualisation of sentences, that is to say, that a sentence

6 must be appropriate to the circumstances of the particular conviction in

7 respect of which it is imposed?

8 MS. BRADY: Your Honour, if the thing of individualisation of

9 sentences is that the sentence must be imposed for the totality of the

10 culpable conduct, well, then, we would say yes, that individualisation of

11 sentence is really about meeting -- rendering a sentence which meets the

12 appropriate -- which meets the conduct of the crime, among other things,

13 of course, taking into account mitigating and aggravating circumstances.

14 But if we understand the concept of individualisation of sentences

15 correctly, it's derivative, it's a corollary of the principle of totality,

16 the totality principle in sentencing, and the totality principle gives

17 effect, more or less, to the fact that the sentence will be based on the

18 individual circumstances of both the crime and the offender.

19 JUDGE SHAHABUDDEEN: Let me put it --

20 MS. BRADY: I don't know if that answers Your Honour's question.

21 JUDGE SHAHABUDDEEN: Partly. Let me put it this way to you: My

22 recollection is that Delic was convicted of the murder of Milosevic. Is

23 that right?

24 MS. BRADY: Yes, that's right.

25 JUDGE SHAHABUDDEEN: And was sentenced to 20 years?

1 MS. BRADY: That's right, Your Honour.

2 JUDGE SHAHABUDDEEN: That stands, does it?

3 MS. BRADY: That conviction is upheld, Your Honour.

4 JUDGE SHAHABUDDEEN: Well, is there anything on the record which

5 suggests that imposing that 20-year sentence, in respect of the death of

6 Milosevic, on Delic, the first Trial Chamber took into account his

7 criminal conduct in respect of any other conviction? Or would it be

8 this: Is there something in the record which suggests that if the first

9 Trial Chamber had convicted Delic only on count 3, only on count 3, that

10 the sentence of 20 years which it imposed would have been less?

11 MS. BRADY: Your Honour, I can't think of a specific statement or

12 anything on the record made by the first Trial Chamber which would prove

13 Your Honour's point, but what Your Honour's point may prove is that Trial

14 Chambers, because we have -- we are allowed -- there is a situation where

15 cumulative convictions are permissible, just in the same way as a global

16 sentence may be imposed for a multitude of conduct, it doesn't show that

17 one piece of conduct is raising the stakes, as it were, on consideration

18 of the same conduct on a different count. I'm not sure if that completely

19 makes sense, Your Honour. I think I would have to have some further

20 thought on Your Honour's question.

21 JUDGE SHAHABUDDEEN: I appreciate that, Ms. Brady. That ends your

22 submissions?

23 MS. BRADY: On that point.

24 JUDGE SHAHABUDDEEN: Judge Hunt.

25 JUDGE HUNT: The Article 2 charge, of which Judge Shahabuddeen was

1 asking about, was for wilful killing. The Article 3 charge, for which the

2 conviction has now been quashed, is murder. And the issue which I think

3 was being posed to you was: Is there anything in relation to the murder

4 charge which would have increased the sentence for wilful killing?

5 MS. BRADY: Not in our submission, Your Honour.

6 JUDGE HUNT: That's what I thought it was, but I just thought I'd

7 draw your attention to the specific two charges that were laid. And it's

8 the wilful killing one that we are left with instead of the murder one.

9 And was there anything additional in the murder charge, in relation to the

10 proof of the murder charge, that would have increased the sentence?

11 MS. BRADY: No, Your Honour, because the conduct was the same, and

12 that's why the cumulative conviction was dismissed.

13 JUDGE SHAHABUDDEEN: Judge Meron.

14 JUDGE MERON: Thank you, Mr. President.

15 Thank you very much, Ms. Brady, for your argument. Let me just

16 start by agreeing with the comments made earlier this morning by Judge

17 Hunt, referring to his opinion in Celebici, jointly with Judge Bennouna,

18 on the real risk of prejudice which is involved in allowing cumulative

19 convictions for the same conduct. May I also point out that of course

20 this particular comment of his which has been

21 adopted by the Appeals Chamber in the Kunarac case. We really must be

22 extremely careful, therefore, in dealing with this question of cumulative

23 convictions, which explains the comments made by my colleagues.

24 In this context, I would like to ask you a question. May I draw

25 your attention to footnote 1458, paragraph 854, page 305, of the appeals

1 judgement. There the Appeals Chamber stated, and I quote:

2 "Because the convictions on the Article 2 counts, based on the

3 same conduct as the quashed Article 3 counts, remain, the adjustment

4 required in relation to the quashing of the convictions may not

5 necessarily be a substantial one."

6 Now, does this language not suggest that some downward adjustment

7 was in fact contemplated by the Appeals Chamber? Could we have your

8 comments on that, Ms. Brady?

9 MS. BRADY: Yes, certainly, Your Honour. This argument was also

10 put by the appellants that the Appeals Chamber, by remitting -- it shows

11 that it thought that the sentences were decreased, and they point to

12 certain language in the Appeals Chamber judgement to try and illustrate

13 that.

14 Your Honour, there are various references throughout the Appeals

15 Chamber's judgement to what the proper scope -- the mandate of the second

16 Trial Chamber on this issue. In fact, there are some eight or so

17 references to this question. Your Honours, we do realise that that

18 footnote exists, but if one looks at paragraphs 431 and 710 to 712, I

19 think that the clear language of this shows that the Appeals Chamber was

20 setting a clear mandate for the second Trial Chamber. It wasn't making a

21 judgement that the adjustment must occur; it was asking the second Trial

22 Chamber to consider whether an adjustment for the remaining counts was

23 required. Your Honours, in this regard, I also note that the second Trial

24 Chamber dealt specifically with this argument when it was put before them,

25 and in paragraph 39 it called the argument misconceived and that it had

1 misrepresented the Appeal Chamber's meaning. Thank you.

2 JUDGE MERON: Thank you, Ms. Brady.

3 MS. BRADY: Your Honours, in light of the time, I'll be very brief

4 on the ground of the --

5 [Appeals Chamber confers]

6 JUDGE SHAHABUDDEEN: Ms. Brady, the consensus is that you may

7 proceed, on the understanding that you will, as usual, observe the

8 principles of brevity.

9 MS. BRADY: Thank you, Your Honour. I always try to.

10 Your Honour, this question concerns the submissions made by Mucic

11 that breach of the principle that no adverse use can be made of the

12 accused's exercise of his right not to testify requires a substantial

13 reduction of his sentencing, and they also advert to the question: Why

14 the difference in treatment between the second Trial Chamber's approach to

15 this error and their approach to the cumulative conviction one.

16 Mr. Morrison directly, and Mr. Moran, asked why this difference was in

17 existence.

18 It's because of this: The first Trial Chamber's remark about his

19 failure to give evidence not only disclosed an error, but left open the

20 real possibility that it was treated as an aggravating factor on

21 sentence. So therefore, the remit, or the question before the

22 sentencing -- the second Trial Chamber was: How much of a reduction?

23 Does this affect the final sentence that we impose? On the other hand,

24 when dealing with cumulative convictions under Article 2 and 3, it was not

25 that the Appeals Chamber said this was an error which led to impermissibly

1 cumulatively punish. That was the question, the very question, for the

2 second Trial Chamber. So that explains the difference in approach.

3 As for the principle itself and whether or not it's so fundamental

4 as to require a fundamental breach, we have already asserted this in our

5 brief, and our position is that this breach is not so fundamental that the

6 second Trial Chamber made an error by not giving it a substantial

7 reduction. We say that the reliance on US case-law in this instance is

8 somewhat misplaced. Firstly, as Your Honours well know, this Court

9 doesn't do a wholesale incorporation of the laws of any one particular

10 country into its jurisprudence. Secondly, when the Appeals Chamber itself

11 upheld that there had been a breach of the principle, it canvassed many

12 jurisdictions, including the United Kingdom and the European Court of

13 Human Rights, which basically showed that in many jurisdictions this

14 principle is being watered down.

15 So from that we -- it's difficult to get into an argument based on

16 a sort of relativity of rights, but we submit that this right is not of

17 such fundamental importance as to require a substantial reduction. And in

18 terms of the cases provided by Mr. Mucic's counsel, in particular, the one

19 that he has provided to us yesterday, the Mitchell case, that case, even

20 if it does stand for the proposition that someone would get a substantial

21 reduction in sentence for such an error is distinguishable from the case

22 at hand. In the Mitchell case, a factual adverse inference as to the

23 amount of drugs supplied by a defendant was drawn from an accused person's

24 silence, and this quantum of drugs had direct implications for the

25 sentence of this person. In effect, it was completing an element of the

1 crime, although it was at the stage of a plea. Whereas for Mr. Mucic,

2 here the adverse comment, if any, was to treat it as an aggravating factor

3 in consideration of an appropriate sentence for what had already been

4 established as his criminal conduct.

5 In brief, Your Honours, in view of the seriousness of Mr. Mucic's

6 crimes and his role, we submit that there was no error, that the second

7 Trial Chamber did not venture outside of its scope of its discretionary

8 sentencing framework by imposing a nine-year sentence for his crimes, and

9 for this reason we ask that you dismiss this ground.

10 Thank you, Your Honours. If you have any questions on that issue,

11 I'd be happy to take them.

12 [Appeals Chamber confers]

13 JUDGE SHAHABUDDEEN: Ms. Brady, there are no questions from the

14 Bench.

15 We will suspend now for 15 minutes and then we will return and

16 hopefully conclude, if we can, with the cooperation of our interpreters,

17 if they are so disposed. Thank you.

18 --- Recess taken at 12.40 p.m.

19 --- On resuming at 12.58 p.m.

20 JUDGE SHAHABUDDEEN: Ready, Mr. Carmona?

21 MR. CARMONA: Indeed, Your Honour.

22 JUDGE SHAHABUDDEEN: I understand that you will finish within ten

23 minutes.

24 MR. CARMONA: Ten minutes, yes.

25 JUDGE SHAHABUDDEEN: That will enable us to keep time. We want to

1 balance it fairly between the two sides.

2 MR. CARMONA: Yes. Your Honours, I will be handling two

3 particular grounds of Delic. This is in relation to grounds 6 and 7.

4 However, there is a need, in fact, to respond to some arguments raised by

5 my learned colleagues on the other side in relation to two particular

6 issues.

7 My learned friend on the other side has indicated that there is a

8 witness that recognised a different voice. I wish to say very

9 categorically that this, in fact, was the subject of a motion by the

10 Defence to open review of proceedings, where the statement was exhibited.

11 And in that decision on the motion for review on the 20th of April, 2002,

12 it was dismissed. Any attempt through the proverbial back door to

13 reconsider or reassess this particular fact must not be encouraged or

14 endorsed. That door must not only be shut, it must be locked.

15 Additionally, in relation to my learned friend Moran on the other

16 side, he indicated a lack of awareness in relation to the Kunarac

17 judgement. In that particular motion for review, the decision, the

18 learned Appeals Chamber had mentioned very categorically that the Appeals

19 Chamber will not intervene, at paragraph 15, because of an

20 attorney's -- of one attorney adopting one position or in hindsight

21 effecting an error. It is only when the decision made was of such a

22 nature in the circumstances of the case as to have led to a miscarriage of

23 justice.

24 When one looks at the nature of the cross-examination in relation

25 to all of those witnesses, when one looks at the motion to dismissal, when

1 one looks at the final brief, counsel quite competently attacked the

2 quality of the evidence led by the Prosecution and, therefore, in fact,

3 notwithstanding his being fully au courant with the tenets of that

4 particular decision that no miscarriage resulted.

5 If I may now move on to the particular ground of appeal. The

6 first is that the first Trial Chamber erred by importing the words "if

7 any" into their consideration of adjustment of sentence in respect of

8 Delic's acquittal on counts 1 and 2. This, very critically, is an area of

9 new interpretation, and I think in this regard I wish to quote, in part

10 but in extenso, a particular judgement, Stoddardt, of 1909, 2 Criminal

11 Appeal Reports, which is in our brief, by Lord Chief Justice Alverstone,

12 where he says, in relation to the issue of reviewing summing-ups, he

13 says:

14 "This Court does not sit to consider whether this or that phrase

15 was the best that might have been chosen, or whether a direction which has

16 been attacked must have been fuller or more conveniently expressed, or

17 whether other topics which might have been dealt with on other occasions

18 should be introduced. The Court sits here to administer justice and to

19 deal with valid objections to matters which may have led to a miscarriage

20 of justice."

21 It is the position of the Prosecution that notwithstanding the

22 input, if any, that there is no miscarriage of justice and that in fact

23 there is no prejudice to, in fact, the appellant.

24 On this issue of general awareness as to what the Trial Chamber,

25 the constituted Trial Chamber, saw its role and its mandate as, it is

1 important to appreciate that there was a motion for clarification, a joint

2 motion, which the appellants made or filed in relation to determining what

3 ought -- the scope of the briefs ought to be and what is the scope of the

4 oral hearing. In that particular decision, the Trial Chamber very

5 categorically said that in fact they would be dealing in relation to Delic

6 but what adjustment, if any, should be made to the sentence of Hazim Delic

7 after the Appeals Chamber quashed his conviction in relation to count 1

8 and 2.

9 It is submitted that this decision not to raise the matter again

10 with the Trial Chamber is an indication that the appellant was in

11 agreement with the interpretation given to the particular order and made

12 the submissions accordingly --

13 THE INTERPRETER: Could the counsel please slow down.

14 MR. CARMONA: Certainly. He was not, therefore, prejudiced in the

15 conduct of his submissions as reflected in the scope and breadth of his

16 arguments.

17 Additionally, one should realise a note in paragraph 32 of the

18 second Trial Chamber's ruling in dealing with ancillary issues that are

19 dismissed in relation to parole, commutation of sentence and

20 re-allocation. It said that these issues are wholly irrelevant to the

21 issue remitted before it, namely, adjustment of sentence in light of the

22 various acquittals. The Trial Chamber was -- indeed stated very matter of

23 factly what its mandate was. In other words, what we need to determine is

24 what was the object and purpose of the order, and this must be done from

25 the position of an intelligent interpretation of that particular order.

1 When the Chamber, at paragraph 712, said that it would be

2 convenient - rather, 713 - said that it would be convenient, when the

3 matter is remitted, for the new Trial Chamber also to consider what

4 adjustment should be made, this was made in the context of what went

5 before. Also, obviously would have meant in like manner.

6 Apart from that, when one looks from a -- strictly from a sense of

7 nomenclature, when one considers what is meant by considering, it merely

8 means -- it means evaluating the merits and demerits of the particular

9 position.

10 In that regard, it is the submission of, in fact, the Prosecution

11 that the submission of, in fact -- the submission of the appellant Delic

12 is an exercise, an adventure in technicality, and this, in fact, type of

13 technicality was addressed in Barayagwiza by the learned

14 Judge Shahabuddeen, who indicated that whether a party - and this is in my

15 brief - was or was not subject to an unfair procedure is a matter of

16 substance, not technicality. And this is borne out by the fact that the

17 appellant attorney, in submission, emphasised, throughout the tenor of his

18 address, that in fact what he was concerned with is substance and not

19 form. It is ironic that he is now attacking form.

20 When one looks at the entire ambit of the order, it was obvious

21 that the discretion in relation to the whole issue of sentence was, in

22 fact, left with that reconstituted Trial Chamber within the specific

23 confines. And insofar as the appellant has not been able to show that he

24 was prejudiced in any way, this particular ground of appeal must fail.

25 In any event, when one considers that in the disposition reference

1 is made to original sentences in the context of the issue of a judgement,

2 it may well be that in fact that the Appeals Chamber was in fact putting

3 on an inquiry that original sentences were being reviewed and would be

4 readjusted.

5 So, Your Honours, it is important to appreciate that in dealing

6 with this particular ground of appeal, that we must not adopt a

7 microscopic approach to an assessment of a ruling. And this is borne out

8 by the fact that recently, in the case of -- in the recent decision of

9 Kunarac that was given on the 12th of June, 2002, where in fact the

10 particular Appeals Chamber had to deal with an alleged omission with

11 regard to credit for time served. In that particular -- those particular

12 paragraphs, paragraphs 363 to 365, the Court resorted to looking at the

13 record in determining whether, in fact, there was indeed an error.

14 In this particular instance, we are on a better footing. The

15 Appeals Chamber can look not only at the record but at the actual

16 judgement in itself, contextually and in relation to what is the spirit

17 and object of that disposition.

18 My learned friend on the other side, at paragraph 57 of his brief,

19 appears to be making a ground, putting forward a position that in part

20 appears incomprehensible. But if he's intimating that he was misled and

21 that his arguments did not establish -- could have been better placed, he

22 has not shown how the interpretation left him uncertain as to the nature

23 of the exercise. It is trite that the appellate process is not intended

24 to fill a lacuna, a trial, or to correct a mistaken strategy at trial.

25 If I may now move on to the second aspect of the particular ground

1 dealing with the adjustment of the Delic's sentence in relation to the

2 quashing of his convictions in count 1 and 2.

3 It is important to note initially that as much as, in fact, it has

4 been put forward that counts 1 and 2 were quashed, it represents one

5 criminal conduct. It is important to note that the appellant concedes

6 that Delic's overall sentence cannot be less than 15 years, which is the

7 length of the next most serious crime he received in relation to the

8 counts of torture by way of rape.

9 Again I have to be careful in indicating to the Court that this

10 argument with regard to 15 years must not be seen as a back-door attempt

11 or should not be seen or in fact should be -- should, in fact, be -- that

12 the Appeals Chamber should be critical of viewing this as a possible

13 attempt on the part of the appellant to revisit the issue of the argument

14 in relation to maximum sentences in the former Yugoslavia. However, by

15 insisting on a 15-year maximum, what, in fact, the appellant has done is

16 illustrate quite succinctly that a discretion exercised by the

17 reconstituted Trial Chamber was proper and reasonable when one considers

18 that a particular sentence they gave was, in fact, 18 years.

19 I will not, for purposes of economy, go into the actual offences

20 for which, in fact, he was convicted, apart from indicating that in

21 paragraph 715 they are outlined, and more specifically that they were

22 termed "rather sadistic" and described in very derogatory terms by the

23 Trial Chamber in the context of criminal culpability.

24 I submit finally that when one considers the sentence, that the

25 particular dismissal in no way vitiated the inherent criminal conduct of

1 this appellant. And insofar as we can look at the authority of Musema,

2 which indicates that an Appeals Chamber has -- that a Trial Chamber has a

3 discretion -- and this was endorsed by Musema, in Musema, for genocide.

4 One of the rapes was, in fact, dismissed, yet the Court found that life

5 imprisonment was the appropriate sentence.

6 In this particular case, notwithstanding the dismissal of that

7 particular count, the Court was of the view that he did deserve, in fact,

8 a certain diminution and gave it to him in the form of two years.

9 It is the submission of the Prosecution, and I say this because,

10 in fact, I have -- I made a promise to the Appeals Chamber that I would in

11 fact take ten minutes, I stand by the arguments that we have presented in

12 our appeal brief, and we submit, in fact, that the appellant has not shown

13 that he was in any way prejudiced by the fact that the -- by the Appeals

14 Chamber indicating omitting the word "any," "in any," and also in relation

15 to the dismissal of those two -- of those two counts in the indictment.

16 Essentially, Your Honours, these are my submissions.

17 JUDGE SHAHABUDDEEN: One question from Judge Gunawardana.

18 JUDGE GUNAWARDANA: When you said criminal conduct of the accused,

19 did you mean that the same ingredients go to prove both the offences under

20 Article 2 and Article 3?

21 MR. CARMONA: I'm saying, for example, these two offences

22 represent two distinct offences. They were two distinct offences, and,

23 therefore, they attracted the corresponding penalty.

24 JUDGE GUNAWARDANA: Under penalty, the ingredients of one offence

25 match the other.

1 MR. CARMONA: Indeed. Indeed, under the cumulative conviction

2 concept.

3 JUDGE GUNAWARDANA: Will it necessarily result in the gravity of

4 the conviction under 2?

5 MR. CARMONA: What is important to note is that in fact in

6 relation to the murder of Milosevic, the appellant, in fact, received 15

7 years. Yes, 15 years. Sorry, 20 years. So that as much as, in fact, for

8 example, they represent two distinct offences and as much as, in fact,

9 they fall under the rubric of cumulative convictions, it is the submission

10 that it wouldn't have affected the final sentence. And if, in fact, it

11 did, Your Honours, as -- if the Court was of the view that, in fact, it

12 did result in a particular diminution, a particular accounting, they did

13 give it to him in the form of two years. And this particular exercisable

14 discretion was found to be quite reasonable.

15 JUDGE GUNAWARDANA: But the diminution of conviction was the same

16 as the conviction under 2, Article 2.

17 MR. CARMONA: Yes.

18 JUDGE GUNAWARDANA: The diminution under Article 2.

19 MR. CARMONA: Your Honour, what in fact transpired is that the

20 particular appellant was charged with two killings and one particular

21 killing, in fact, he was found not guilty of. This is no relation to

22 Gotovac. The Court was of the view that there may be a need to readjust

23 the particular sentence in the context of that particular finding and to

24 send the particular matter back to be considered by the Trial Chamber.

25 The Trial Chamber, in fact, took that into consideration and in so doing

1 decided, for example, that -- that two years was the type of accounting he

2 would in fact have received, and they did that.

3 JUDGE SHAHABUDDEEN: One question, Mr. Carmona. And this is just

4 to clear my own mind on a proposition which I believe you made.

5 You were talking of the dismissal of the motion for the production

6 of additional evidence. I'm not clear whether your submission was to the

7 effect that the dismissal of that motion operated to preclude the

8 appellants from arguing that on the basis of the record as it otherwise

9 stood, the sufficiency of evidence principle was not satisfied.

10 MR. CARMONA: Indeed, My Lord, Your Worship.

11 JUDGE SHAHABUDDEEN: That's your proposition?

12 MR. CARMONA: Your Honour, indeed, yes. That we are, in fact,

13 saying basically that -- yes. In we, in fact, saying that as much as, in

14 fact, the particular motion in fact dismissed the particular attempt to

15 lead additional evidence, if I may say it, that in any event, in fact, the

16 Appeals Chamber was of the view that it did not raise any additional

17 argument to warrant an additional review.

18 JUDGE SHAHABUDDEEN: That is a different position today. All

19 right. I'll try and understand that. Thank you very much.

20 MR. CARMONA: You're welcome.

21 JUDGE SHAHABUDDEEN: Does that conclude the case for the

22 Prosecution?

23 MR. CARMONA: Yes, indeed it does.

24 JUDGE SHAHABUDDEEN: Yes. Well, then, I return to the

25 appellants. You have 15 minutes in which to reply. Who is going to do

1 this?

2 MR. MORAN: Your Honour, I think we're going to break it up, and I

3 have just a few --

4 JUDGE SHAHABUDDEEN: Just a minute.

5 MR. MORAN: I have a few short matters.

6 JUDGE SHAHABUDDEEN: I understand that some flexibility is needed,

7 so we will overstep the 15 minutes a little but not too much.

8 MR. MORAN: Thank you, Judge. Judge, as the last thing you were

9 questioning the Prosecution about on that order from the Trial Chamber,

10 there's a case from my jurisdiction I think should be read by all lawyers,

11 and it stands for the proposition that when a Judge makes a decision, if

12 you don't like the decision, you obey what the Judge says and then you

13 appeal it later. And that's exactly what we did. The Trial Chamber made

14 a decision. We respected the Trial Chamber's decision, and we're

15 appealing it later. If that's the wrong thing to do, I'd like to know of

16 something different that wouldn't be contemptuous adventures in

17 technicality. When he read that quote from you, Judge Shahabuddeen, it

18 reminded me of a Judge I used to practice before named John Onion. And

19 Judge Onion used to say, "There is no such thing as a technicality. It's

20 either the law or it's not." And things are either the law or they're

21 not.

22 Judge, this Tribunal, and I think all courts, don't sentence

23 crimes. You sentence people who are convicted of committing crimes. And

24 there's a big difference.

25 In this case, what we asked to do -- what my client asked to do at

1 the second Appeals Chamber -- or second Trial Chamber at resentencing was

2 to present some evidence in mitigation, which could have been done in

3 writing, which in fact was presented in writing and was rejected, and he

4 wanted the opportunity to stand up in front of those Judges and say he has

5 thought about what he was charged with, he has thought about what occurred

6 in the former Yugoslavia and to show remorse for the acts that he

7 committed. That's all we asked.

8 Burden of proof. The -- at least as to Delic, this case was sent

9 back for two reasons, and at this point I'll just discuss the reassessment

10 for cumulative sentencing. There is no evidence in the record one way or

11 the other as to whether that affected the judgement of the original Trial

12 Chamber. There's no way to know. Short of picking up the telephone and

13 calling the original members of the Trial Chamber, we'll never know

14 whether that affected them.

15 The question is: Was it error? Yes, this Trial Chamber has said

16 it was error. And the next question is: If it's error, should the

17 Defence, the victim of the error, have to prove that he was harmed, or

18 should the person who benefited from the error, the Prosecution, have to

19 prove that the defendant was not harmed? I submit to you that the

20 beneficiary of an error should be required to prove lack of harm.

21 Two other things and then I'll sit down. There was a question

22 about a final judgement. When I used words "final judgement" -- and a lot

23 of us come from the same legal tradition but we speak a slightly different

24 language, when I say the words "final judgement," what I mean is a

25 judgement that disposes of all parties, all issues, and there is nothing

1 left for any Court to do except put the judgement into effect. I think

2 that is what's contemplated by both Rule 92 ter and Rule 117, that there

3 would be one judgement, not a separate judgement for sentencing and a

4 separate judgement for conviction. And that judgement is final, in my

5 view, when all of the issues that were in that litigation have been

6 finally decided, all of the parties have been finally decided and disposed

7 of and there is nothing for the Chamber to do or for the Tribunal to do

8 except execute the judgement.

9 Under that view, there is no final judgement in Celebici as to

10 anything. There are judgements, but there is no final judgement.

11 And the last thing is, Judge, even under the Rule 115 cases, as I

12 understand them, if there is a pure miscarriage of justice, this Chamber

13 will consider new evidence. And I'm asking you to consider essentially

14 new arguments. I would submit to the Appeals Chamber that a wrongful

15 conviction, by definition, is a miscarriage of justice, and I would submit

16 to the Appeals Chamber that if a conviction will not withstand a

17 sufficiency of the evidence review, under our law it's a wrongful

18 conviction and would be a miscarriage of justice.

19 Unless the Chamber has some questions, I'll let my colleagues --

20 JUDGE SHAHABUDDEEN: No. Thank you, Mr. Moran.

21 Would any counsel for the other appellants wish to speak? We

22 still have a few minutes to go.

23 MR. KUZMANOVIC: Yes, Your Honour. Mr. Morrison and I both have

24 some brief submissions to make in rebuttal. I will go further since I'm

25 standing.

1 My rebuttal submission deals with the cumulative convictions

2 issue. The Prosecutor has relied on and discussed today paragraph 42 of

3 the new Trial Chamber's judgement, and to go along with something that

4 Mr. Moran said, it is difficult if not impossible to peer inside the minds

5 of those original Judges and see what they have determined. And by that I

6 just read one sentence in paragraph 42. Actually, two sentences:

7 "In the case of the three accused, the totality of their criminal

8 conduct has not been reduced by reason of the quashing of the cumulative

9 convictions."

10 There's no citation or anything in the record or anything that's

11 referred to.

12 "The original Trial Chamber specifically had this factor in mind

13 in passing the sentences which clearly would have been the same without

14 the cumulative convictions."

15 Again, no citations to the record. And it begs the question: How

16 do you know that the original Trial Chamber specifically had this factor

17 in mind? And that's problematic for us on the cumulative conviction

18 issue.

19 The other portion of that, Your Honours, is that in the original

20 Appeals Chamber's decision, impact of the cumulative convictions on

21 sentencing at paragraph 431, the sentence reads:

22 "The Appeals Chamber acknowledges that if the Trial Chamber had

23 not imposed double convictions, a different outcome in terms of the length

24 and manner of sentencing might have resulted."

25 And note that the language is "sentencing," not "adjustment."

1 Because this is a matter that lies within the discretion of the Trial

2 Chamber, this Chamber remits the issue of sentencing, not adjustment, to a

3 Trial Chamber to be designated by the President of the Tribunal. And

4 that, to me, indicates an intent, at least, through that paragraph 431

5 that there will be a sentencing. Not necessarily a hearing, but at least

6 some kind of evidence to bring the new Trial Chamber up to speed on the

7 facts and circumstances of each particular accused at that stage in time

8 in their lives.

9 Those, Your Honours, are my submissions unless there are any

10 questions.

11 JUDGE SHAHABUDDEEN: Thank you. Thank you very much.

12 MR. KUZMANOVIC: I'll leave the balance to Mr. Morrison.

13 JUDGE SHAHABUDDEEN: Mr. Morrison.

14 MR. MORRISON: Your Honours, two very brief matters. Ms. Brady in

15 her reply espoused the test of a real risk of prejudice. In Mr. Mucic's

16 case there isn't a risk of prejudice. The prejudice is palpable and is

17 demonstrated by the wording in the original Trial Chamber's judgement and

18 in the context not only of the wording but of the other criticisms they

19 make of him. And so we say it is not a question simply of redressing a

20 risk, redressing an actual prejudice, not merely to compensate Mr. Mucic

21 but also to bring the system into public confidence.

22 The second point she makes by analysis with what was ascribed to

23 as the watering down of the right to silence in other jurisdictions is

24 that in the Trial Chamber's original judgement in this case, and the

25 Appeals Chamber's original judgement in the case the right to silence was

1 defined as absolute. If the Prosecution are now seeking to amend that

2 from being absolute to conditional, then a proper basis for such a radical

3 change of jurisprudence would have to be made and no such basis has been

4 made or even alluded to in these proceedings. Thank you.

5 JUDGE SHAHABUDDEEN: Well, thank you very much. The Bench has

6 been --

7 You desire to speak?

8 MR. MURPHY: Yes, Your Honour. I just have one or two things, if

9 I may, on behalf of Mr. Landzo.

10 JUDGE SHAHABUDDEEN: Yes, yes.

11 MR. MURPHY: Your Honour, the ultimate issue in this appeal on the

12 jurisdictional ground is really a very simple one, and that is whether the

13 Tribunal will follow its own Statute and Rules.

14 The Prosecution suggests that Article 25(2) can be interpreted

15 purposively because it is in some way ambiguous, and they pray in aid the

16 contention that Article 25(2) does not specifically, for example, provide

17 a right of appeal against sentence. But what Article 25(2) clearly does

18 is to give the Appeals Chamber the power and the duty to affirm, reverse,

19 or revise the decisions taken by the Trial Chambers. Sentencing is a

20 decision taken by the Trial Chambers, and that follows clearly from the

21 wording of the Rule.

22 In this instance, the interpretation of Article 25(2) as being

23 ambiguous sets up a conflict between that Rule -- or that Article and

24 Article 24, because the sentencing law of this Tribunal is that under

25 Article 24, the individual circumstances of the accused should be taken

1 into account when sentencing, and Rule 101(B) makes that mandatory.

2 Now, what happened in this case was that the second Trial Chamber

3 found itself in a position where it was called upon to sentence the

4 appellants without complying with these mandatory provisions, and we say

5 that that's a matter of law and that it's wrong. And we don't -- and,

6 Your Honours, when we used in our brief the expression "per in curiam," we

7 don't intend to be critical of the first Appeals Chamber for this. The

8 matter wasn't raised. It wasn't argued, and it was understandable that

9 such an order might be made. But we've had the opportunity now to look at

10 it in the light of the Articles and the Rules.

11 Now, the Prosecution continues to say, well, Tadic provides

12 authority for remitting on a discrete issue. Your Honours, if you will

13 look at the portions from Tadic that we've cited, you will see that what

14 happened there was effectively and could be described as a new trial

15 according to law. That's all these appellants want. They --

16 And the final point, addressing the matter that has been raised:

17 Well, could the appellants have introduced new evidence before the first

18 Appeals Chamber relevant to sentence? Apparently, this is the practice in

19 some jurisdictions. I have consulted with my learned friends on the

20 Defence side, and I think, modestly, we have between us a good number of

21 years both in England and the United States and we have never collectively

22 known a case where that has been done. We have known cases where the

23 Court of Appeal has said that such evidence is inappropriate because it's

24 irrelevant. The issue before the Appeals Chamber is that did the

25 sentencing court get it right or not at the time.

1 Now, if such a rule is introduced, and it may be that the Appeals

2 Chamber feels that that rule has merit, that the appellant should

3 introduce new evidence, we feel we should make the Appeals Chamber aware

4 that the inevitable result of this will be an application under Rule 115

5 to admit additional evidence in any future case in which there is an

6 appeal against sentence. It will become the automatic practice of the

7 Tribunal. Under the existing law, we would submit that that was not

8 required and indeed would have been inappropriate.

9 So for those reasons, Your Honours, unless you have any questions,

10 those are my submissions in rebuttal.

11 JUDGE HUNT: Mr. Murphy, I don't have a question, but I do have a

12 warning. It could never be admissible under 115 because it's not a

13 rehearing. You may be able to, as Mr. Farrell conceded, put in material

14 which is relevant to a resentencing.

15 MR. MURPHY: You would have to do that under some Rule, Your

16 Honour.

17 JUDGE HUNT: No, you don't. A Trial Chamber, under the Rules --

18 I'm sorry. Any Chamber, including the Appeals Chamber, can receive

19 evidence which is relevant to the issue which it has to determine. It

20 sounds as if you've been in a civil law system all your life and I know

21 that's not true.

22 MR. MURPHY: It's not true.

23 JUDGE HUNT: So I am absolutely astounded that you would put that

24 submission.

25 But it is not under 115. It would be evidence which is relevant

1 to the resentencing. And as Mr. Farrell has suggested, it would be in

2 relation to a very limited number of issues that could be relevant.

3 MR. MURPHY: Your Honour, in a way I'm glad to hear that because

4 clearly it is material that ordinarily should be before a sentencing

5 Court. My point is that under the Rules as now established, it appears to

6 be the case that when we come to the Appeals Chamber, the -- what the

7 Appeals Chamber is going to do to affirm, reverse, or revise the decisions

8 taken by the Trial Chamber. And so our position was that in that case,

9 the evidence should be relevant to the situation as it was before the

10 Trial Chamber, which is the basis of the appeal.

11 All I'm saying to the Court, with the greatest of respect, is that

12 if this is to be the Rule, then of course under whatever Rule, it will

13 become automatic for appellants to introduce this kind of evidence in

14 every appeal against sentence, and we don't feel that that has been the

15 law of the Tribunal hitherto, but clearly it would be open to the Tribunal

16 to adopt a Rule to that effect.

17 Unless the Court has any other questions. I'm much obliged, Your

18 Honours.

19 JUDGE SHAHABUDDEEN: Mr. Murphy, may I wrap it up by putting to

20 you my impression of the case on whole? That is that the appellants

21 concede that there could be what you have referred to as a discrete remit

22 but that a new Trial Chamber was obliged to hold a trial on issues

23 relevant to the remit. Was that your case?

24 MR. MURPHY: That's correct, Your Honour, yes.

25 JUDGE SHAHABUDDEEN: Thank you very much.

1 MR. MURPHY: Yes. Thank you, Your Honours.

2 JUDGE SHAHABUDDEEN: You may be seated.

3 Well, then, that concludes the hearing, and the Appeals Chamber

4 will reserve its judgement in the normal way. You will be notified of the

5 progress of events. Thank you. The Court is adjourned.

6 --- Whereupon the Appeals Proceedings adjourned

7 at 1.35 p.m.

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