1 Tuesday, 13th October, 1998
2 (Open session)
3 --- Upon commencing at 10.16 a.m.
4 JUDGE KARIBI-WHYTE: Good morning, ladies and
5 gentlemen. May we have the appearances, please?
6 MR. NIEMANN: Good morning, Your Honours. My
7 name is Niemann and I appear with my colleagues Ms.
8 McHenry and Mr. Huber for the Prosecution.
9 JUDGE KARIBI-WHYTE: May we have the Defence
11 MS. RESIDOVIC: Good morning, Your Honours.
12 My name is Edina Residovic. I'm representing
13 Mr. Zejnil Delalic, together with my colleague
14 Mr. Eugene O'Sullivan, professor from Canada. Thank
16 MR. MORRISON: Good morning, Your Honours.
17 I'm Howard Morrison. I appear for Mr. Mucic together
18 with Madam Buturovic and Mr. Greaves is consulting.
19 MR. KARABDIC: Good morning, Your Honours.
20 My name is Salih Karabdic, and I'm an attorney at law
21 from Sarajevo and I'm defending Mr. Hazim Delic,
22 together with Tom Moran, an attorney at law from
23 Houston, Texas.
24 MS. McMURREY: Good morning, Your Honours.
25 I'm Cynthia McMurrey, and along with Nancy Boler, we
1 represent Esad Landzo.
2 JUDGE KARIBI-WHYTE: We were going to start
3 with Mr. Moran this morning.
4 MR. MORAN: Yes, Your Honours. We will call
5 Dr. Tomic. He should be out in the hallway. Your
6 Honour, as we discussed yesterday, I'm sure the Court
7 is familiar with this report. I'm going to go over a
8 couple of areas. It will only take a few minutes, and
9 then open him to questioning from the Court, if that's
10 acceptable to you, Your Honour.
11 JUDGE KARIBI-WHYTE: Yes, I think so. Those
12 who have got the report have read it.
13 MR. MORAN: Yes, Your Honour. I just wanted
14 to have him here to be able to clarify things in the
15 report, because it is a question of law.
16 JUDGE KARIBI-WHYTE: I see there are some
17 difficulties in the translation.
18 MR. MORAN: Yes, Your Honour.
19 JUDGE KARIBI-WHYTE: In the report.
20 MR. MORAN: Yes, Your Honour.
21 (The witness entered court)
22 MR. MORAN: Your Honour, we did not use our
23 regular translator on this. This was a translation
24 done in Sarajevo, and it was sent to me by e-mail. That
25 was another reason why we wanted the doctor here.
1 JUDGE KARIBI-WHYTE: I think so, yes.
2 MR. MORAN: Your Honour, first, with the --
3 well, as soon as he takes the oath.
4 THE WITNESS: I solemnly declare that I will
5 speak the truth, the whole truth and nothing but the
7 JUDGE KARIBI-WHYTE: You may take your seat,
9 WITNESS: ZVONIMIR TOMIC
10 Examined by Mr. Moran:
11 Q. Good morning, Dr. Tomic.
12 A. Good morning.
13 Q. Doctor, would you introduce yourself to the
14 Court and tell them a little bit about your training,
15 background and experience?
16 A. I'm Dr. Zvonimir Tomic. I'm a lecturer at
17 the department for criminal law of the school of law at
18 the University of Sarajevo. I was born in Sarajevo in
19 1951 where I graduated the from the school of law. In
20 1984, I defended a doctoral thesis at the University of
21 Belgrade at the school of law. In 1990, I defended my
22 thesis under the title "Security Measures in the
23 Yugoslav Criminal Law." Is this enough?
24 Q. Yes, Doctor, one other question, and it's a
25 question I've never asked before in this Court, but
1 will you tell the Judges what your ethnic background
3 A. I'm a Croat.
4 MR. MORAN: Your Honours, with the help of
5 the usher, I have copies of English translations of
6 certain portions of the Criminal Code of the Socialist
7 Federal Republic of Yugoslavia, and I would move to
8 introduce those under the next number, whatever it is.
9 I believe I've already given them to the Prosecutor.
10 If I haven't, I'm sure they have got them other
12 THE REGISTRAR: It's Exhibit 111/3.
13 MR. MORAN: Thank you.
14 Q. Doctor, I see you have your Penal Code in the
15 original Bosnian Serbo-Croatian in front of you, and if
16 you like you can refer to it. The Court has read your
17 report and is familiar with it. However, it has been
18 pointed out and we have talked about a few translation
19 problems in it, one of the things I want to do is clear
20 up some of those.
21 The first thing I want to ask you, Doctor, is
22 we've talked about and you're familiar with Judge
23 McDonald's decision on sentencing in the Tadic case,
24 the part about the maximum punishments and the death
25 sentence. Doctor, you have to answer "yes" or "no" so
1 the court reporter can take it down.
2 A. I have had an opportunity to review the Tadic
3 case in its entirety, and I'm familiar with the
4 sentence that was determined at the end of the
5 proceedings. The court applied in that particular
6 case, I don't know which methods were followed,
7 determined a 20-year imprisonment sentence, and as far
8 as I could see, the sentence was determined in respect
9 of only one criminal offence. Is there anything else?
10 Q. The thing I want to point you to, and it's in
11 paragraph 7, although you don't have a copy of it in
12 front of you in Bosnian, is the part where Judge
13 McDonald said that if a death sentence was authorised,
14 the alternative punishment was 20 years. That's in
15 paragraph 7 of her sentencing judgement. I want to draw
16 a distinction between a court having the discretion to
17 sentence to either death or 20 years, or whether the
18 death sentence first had to be assessed and then it
19 could mitigate the death sentence to 20 years. Do you
20 understand the distinction I'm drawing, Doctor?
21 A. (Nods)
22 Q. Would you explain to the Court how that
24 A. The Yugoslav criminal legislation provided
25 for capital punishment, prison, and a fine, a financial
1 type of punishment. The capital punishment could not
2 be determined for only one criminal offence. It always
3 had to be determined together, alternatively, with the
4 prison sentence, whose maximum was 20 years. That was
5 according to the Yugoslav criminal law at the time.
6 Therefore, the courts had an alternative, capital
7 punishment or 20 years imprisonment or, an alternative,
8 a prison sentence ranging from 5 to 15 years in
10 For offenders, it was possible to serve a
11 20-year prison sentence, and it was in a case of
12 amnesty or pardon. So a 20-year prison sentence could
13 be determined only for the most serious types of
14 criminal offences, and that particular sentence,
15 according to the law from 1976, was provided within the
16 Federal Criminal Code of the Socialist Federal Republic
17 of Yugoslavia in respect of only eight criminal
18 offences, whereas in the Republic Criminal Code, the
19 Criminal Code of Republic of Bosnia-Herzegovina, it
20 could be determined only in the respect of five
21 criminal offences.
22 With the presence of democratisation in the
23 former Yugoslavia, at the end of the 1980s, there were
24 a number of amendments done to the Criminal Code and
25 the 20-year prison sentence was deleted in all of the
1 relevant eight cases and later it was also deleted from
2 the Republic Criminal Code, that is, the Criminal Code
3 of the Socialist Republic of Bosnia-Herzegovina in
4 respect of all five criminal offences for which it was
5 provided. Therefore, a 20-year prison sentence could
6 not be determined for any type of criminal offence, and
7 the possibility was left for that type of sentence to
8 be replaced by capital punishment. Is there anything
9 else I can help you with?
10 Q. Yes, there is. I want to focus on the period
11 between May -- the law that was in effect between May
12 and December of 1992. First, in April 1992 by decree,
13 the newly independent Republic of Bosnia-Herzegovina
14 adopted the Federal Criminal Code; is that correct,
16 A. Yes, that's correct. On the 11th of April,
17 1992, in accordance with the decree law, the Federal
18 Criminal Code was adopted, and this is the last edition
19 of the Federal Criminal Code that was published before
20 the war. This was adopted as the Republic Criminal
21 Code, of course, with certain amendments. These
22 amendments related to the social system, because the
23 self-managing social system was no longer valid, and
24 also in respect to certain other things having to do
25 with the political system, the name of the country was
1 no longer Socialist Republic of Bosnia-Herzegovina but
2 Republic of Bosnia-Herzegovina.
3 Statements were also made in respect of armed
4 forces and so on. The rest of the text has, by and
5 large, remained the same, especially in regard to
6 punishment and sentencing.
7 Q. Now, let me focus, just for a second, on the
8 death penalty and the 20-year alternative. As I
9 understand it, and I want to make sure that everyone is
10 clear on this, that a court could, if the death penalty
11 was authorised by law, could assess the death penalty
12 and then immediately reduce it to 20 years; is that
14 A. Yes, that is correct. The court always had
15 the possibility to substitute the capital punishment
16 with a 20-year prison sentence. So at the beginning,
17 it was possible for the court to determine a 20-year
18 sentence for all criminal offences for which capital
19 punishment was provided for. The court always had the
20 choice. It could either determine the capital
21 punishment or 20-year prison sentence. That was one
22 possibility. The other possibility was, even if it did
23 determine capital punishment, a higher court, an
24 appeals court could substitute that punishment with a
25 20-year prison sentence, but the first solution was
1 commonly used.
2 Capital punishment was provided for in the
3 former Yugoslavia for a large number of cases as some
4 kind of prevention; however, the criminal punishment in
5 Yugoslavia was not imposed very often, and it was very
6 rarely executed. I know only of two cases where
7 capital punishment was determined as a sentence and
8 was, indeed, executed.
9 Here, I leave out certain trials that took
10 place in 1970 and 1971, the cases having to do with
11 some terrorist groups and counterrevolutionary
12 activity, endangering of the country and so on. Those
13 were exceptional circumstances and these cases are not
15 Q. Doctor, if the court did not first impose the
16 death penalty, what was the maximum punishment for any
17 crime, if the death penalty was not actually imposed?
18 Could the ...
19 A. The maximum punishment was 15 years in
21 Q. So long as the court did not impose the death
22 penalty; is that correct?
23 A. Yes.
24 Q. Okay.
25 A. The maximum punishment was 15 years in
1 prison, and the minimum punishment in prison was 15
2 days. That was the range of the prison sentence in the
3 former Yugoslavia. It was not possible to impose a
4 longer prison sentence than 15 years, except for the
5 alternative with the capital punishment, that is, the
6 20-year alternative. If you want me to, I can explain
7 this further on.
8 According to the ideological concept of the
9 Yugoslav criminal legislation, and under the influence
10 of the Yugoslav criminal theory, during the past 20
11 years, the courts were in favour of rehabilitation of
12 the offender, of the convict, because it was widely
13 believed that an offender, a convict, can reform and
14 readapt himself to the society and the family. These
15 long-term prison sentences were avoided, and they were
16 imposed only in respect of the most serious crimes and
17 in exceptional circumstances.
18 Q. Doctor, the sentencing practice then in the
19 former Yugoslavia, if I understand what your last
20 answer was, it was based on rehabilitation and not on
21 punishment for the sake of punishment or to retribution
22 or to make an example of someone; is that correct,
24 A. Yes, that is correct. When talking about the
25 purpose of punishment within the Yugoslav criminal law,
1 the dominant position was taken by the functional
2 relation between prevention and retribution. We wanted
3 to influence the offender and give him a chance to
4 rehabilitate. The idea was also to influence others
5 and to prevent commission of similar crimes again.
6 At the legal level, capital punishment did
7 exist for a number of criminal cases, but it had a
8 preventative function.
9 Q. Doctor, at this point, I would like to direct
10 your attention to Article 48 of your Penal Code.
11 Your Honour, that's on page 6 of the typed
12 portion. Just so you know where all these translations
13 came from, by the way, the typed portion was provided
14 to me by from Ms. Residovic, and she had that
15 translated, and the printed portion is out of Professor
16 Bassiouni's book, "Law of the Tribunal."
17 Q. As you know, Professor, all of the defendants
18 here are charged in multiple counts, with different
19 crimes in multiple counts. Under the law of the former
20 Yugoslavia, if someone were charged with multiple
21 counts, more than one crime in the same trial, when it
22 came time to set punishment for those, did the court
23 just set a punishment for each one and add them up, so
24 you may get three years on one case, five years on
25 another, ten years on another, and add them up, and you
1 would come up with 18 years? Or did it have some other
2 system for setting punishment where there is more than
3 one crime in the same trial?
4 A. What you have just mentioned relates to a
5 provision which existed at the time within the Penal
6 Code of the Socialist Federal Republic of Yugoslavia,
7 and it was intended for a so-called concurrence. It's
8 a legal -- theoretical, legal term. I don't know
9 whether it is going to be translated successfully, but
10 this relates to a number of crimes that were committed
11 for one and the same person. The condition was that
12 these crimes were tried at the same time.
13 There were several possibilities for
14 punishment in the former Yugoslavia for that type of
15 criminal transaction. There were three models that
16 were applied. The first one was the so-called model of
17 absorption. The second one, the model of aspiration,
18 and the model of cumulation. These principles were
19 contained within Article 48.
20 According to the system of absorption, when
21 dealing with several criminal offences, if capital
22 punishment was provided for one of the criminal
23 offences encompassed by the indictment, the capital
24 punishment would absorb all other punishment that could
25 have been determined for that type of transaction.
1 According to the same system, if the most severe
2 sentence was 20 years in prison, so that type of
3 sentence would absorb all other sentences.
4 There could have been, for example, five
5 various criminal acts and five sentences to be
6 determined, and if the most severe sentence was 20
7 years of punishment, it would absorb all other
8 sentences. This is in order to avoid serving long-term
9 prison sentences, and this was in accordance with the
10 principle of the socialist system at the time, that
11 there was always hope and that the person could always
12 reform and that the person could eventually return to
13 his environment and lead a normal life.
14 The second model that was applied at the
15 criminal system of the former Yugoslavia was the model
16 of aspiration. Aspirations regards, really, connecting
17 with the idea of making the sentence harsher. For each
18 particular offence, the court would determine a
19 sentence, and then at the end, it would determine, it
20 would impose only one sentence. According to the
21 system of aspiration, if there were, for example, three
22 criminal offences that were committed, and the three
23 sentences, let's say three, five, and seven years in
24 prison, according to the system of accumulation applied
25 by certain countries, that would mean that the person
1 would serve 27 years. According to our system, this
2 would have been 15 years in prison. That is the
3 maximum prison sentence that could be imposed according
4 to the law. There could have been, for example, 20
5 various criminal acts, but the maximum penalty would be
6 15 years in prison, because that was the longest prison
7 sentence that was provided for in our system.
8 This method was applied for other criminal
9 offences as well, for less severe criminal offences,
10 for petty theft, for example, and similar types of
11 offences. It was possible for example, for a young
12 offender to spend three years committing such criminal
13 offences, and he could have committed, I don't know,
14 100 petty thefts, so the maximum prison sentence for
15 that type of offence would be 8 years.
16 According to that principle, the sentence,
17 the final sentence, had to be higher than the maximum
18 sentence, maximum individual sentence. If, for
19 example, the sentences were three, eight, nine, and ten
20 years, so the maximum sentence could be ten years plus
21 one month, up until 15 years in prison. If dealing
22 with criminal offences for which this type of prison
23 sentences were provided for.
24 Therefore, the final sentence had to be one
25 month longer than the longest sentence determined in
1 respect of a particular offence, but it had to be lower
2 than the sum of all these sentences.
3 Q. We talked about, I think yesterday or the day
4 before, about -- I used an example of a particular
5 serial murderer from the United States, a man named
6 Theodore Bundy. Do you remember our discussion about
8 A. Yes.
9 Q. Mr. Bundy had murdered a lot of people over a
10 period of years, throughout the United States. I asked
11 you if the court chose not to assess a death sentence
12 on Mr. Bundy, what would be the maximum punishment that
13 a court could have assessed against Mr. Bundy under
14 Yugoslav law? Do you remember that? The maximum in
15 prison term, if the death sentence was not imposed, and
16 what was that maximum prison term, Doctor?
17 A. According to the Yugoslav legal system, the
18 maximum -- there could have been, for example, a
19 hundred murders, and the capital punishment was
20 provided for each of them. So if capital punishment
21 was not imposed, then the punishment, an alternative,
22 would have been a 20-year prison sentence. For a
23 simple murder, a simple case of homicide or intentional
24 killing as you call it here, there was a prison
25 sentence that was provided for, and it was 15 years.
1 That was the maximum prison sentence.
2 Q. One last question, and I think that I'll be
3 done and the Judges may have some questions and the
4 Prosecutor may have some. Let me direct your attention
5 to Article 142 of the Penal Code. Specifically, I want
6 you to look at the first few words of it, "Whoever
7 should in violation of international law, during war,
8 armed conflict, or occupation," that's the portion I
9 wish you to focus on. Did that law cover acts which
10 would have occurred, say, during a rebellion or an
11 internal armed conflict, or did that just apply to
12 cases of international war? If you want to know the
13 reason I'm asking, I'll tell you.
14 A. I would like to know, yes.
15 Q. In her sentencing decision in the Tadic case,
16 Judge McDonald said that this applies only to
17 international armed conflict, but that by -- that she
18 would look at it in sentencing Mr. Tadic. What I want
19 to get at is whether, in fact, Article 142 just applies
20 in international war or whether it would apply during
21 an armed conflict that was not an international war?
22 A. In the provision of Article 142, whoever is
23 in violation of the international law during the war,
24 armed conflict or occupation, it is -- the internal
25 conflict is never mentioned. This could be interpreted
1 both as either the international or internal conflict.
2 So, I would not agree with the view that this refers
3 only to international armed conflict. I don't think
4 that that is a correct interpretation of this
6 MR. MORAN: Your Honours, because the Court
7 is familiar with his report, and if you have any
8 questions, I'm going to pass the witness. If the Court
9 has some questions, I'm sure he would be happy to
10 answer them, or if the Prosecutor has some.
11 JUDGE JAN: I just want to ask one question.
12 What was the ordinary punishment provided under the
13 Yugoslavian law in respect of wilful murder or wilful
14 killing, the ordinary punishment?
15 THE WITNESS: The ordinary punishment was 5
16 to 15 years in prison. That would be for when you talk
17 about wilful killing in Article 36 of the Criminal
18 Code, it would be the -- I worked on this in 1991.
19 With my students now, we're working on a new draft, but
20 the minimum sentence is five years. The sentence could
21 range from 5 to 15 years for ordinary murder. Now, for
22 aggravated murder, which would be section 2, the
23 minimum sentence would have been 10 years, so that
24 would mean 10 to 15 years or death penalty. In other
25 words, 10 to 15 years or death penalty, which could be
1 substituted by a 20-year prison sentence, either in the
2 first instance or at the appellate level.
3 JUDGE JAN: I don't have this section 32.
4 MR. MORAN: Your Honour, I don't have it
5 either, and we'll provide it. We'll get it to you
7 JUDGE JAN: Were there any guidelines
8 provided by the law where death penalty provided that
9 it should not be imposed in such cases?
10 A. You mean the limits in the --
11 JUDGE JAN: The two punishments, death or 20
12 years imprisonment, did the law provide any guidelines
13 in cases where the death penalty should be imposed or
14 in cases where the death penalty should not be imposed,
15 or was it left merely to the discretion of the judge?
16 A. Death penalty is the most serious form of
17 punishment in the Yugoslav Criminal Code, as well as
18 any others, but it had certain limitations. One was
19 the limitation in actually determining it. It was at
20 both the federal level and the federal units which were
21 six, and at one period, eight. It was at one point,
22 part of the constitutional system. In 1974, after the
23 new constitution was adopted, in 1976, a new Criminal
24 Code was passed on 1 July, 1977. At that time, the
25 federal units, which meant six republics and two
1 autonomous provinces which made up the Federal Republic
2 of Yugoslavia, they were supposed to pass their own
3 codes. So as of 1 July, 1977 until 1990, there were,
4 actually, nine laws in force in Yugoslavia, one
5 federal, six republican and two provincial. In 1990,
6 the Republic of Serbia changed its constitution and
7 denied the right of the --
8 JUDGE JAN: You said on the 11th of April,
9 1992, the state of Bosnia-Herzegovina adopted a Federal
10 Criminal Code. We are more interested with the Federal
11 Criminal Code than the earlier laws.
12 A. Yes, that is correct.
13 JUDGE JAN: Under the Federal Criminal Code,
14 because all these offences with which the accused are
15 charged were committed after the 11th of April.
16 A. Yes.
17 JUDGE JAN: That's what I wanted to find
18 out. What was the position under the federal criminal
20 A. In the federal criminal law, in the
21 provisions of Article 37, the death penalty was
22 regulated. In section 1, it says that the death
23 penalty cannot be prescribed by the republican or
24 provincial legislatures as the main punishment for the
25 criminal act. In other words, it always had to be in
1 the alternative with a prison sentence, either a
2 20-year sentence or a 15-year sentence.
3 JUDGE JAN: In Article 37, it talks about a
4 serious crime. How do you distinguish it as far as
5 murder is concerned? It is serious or not serious.
6 Murder is murder.
7 A. In Article 37, the death penalty -- again,
8 let me -- this is a limitation in determining. Now,
9 this would be part of the limitation of how it was
10 going to be passed.
11 JUDGE JAN: Thank you.
12 A. The death penalty could be passed only in the
13 most serious cases of criminal acts, which are provided
14 for in the law, which means that the federal or
15 republican legislator had to, that is, the people who
16 worked on it, they had to assess through the concept of
17 abstract social danger, whether a case merits to be
18 considered the most serious crime. So my colleagues,
19 experts, were the ones who worked on these laws and
20 determined the abstract, the imagined danger to
21 society. On the basis of that, certain criminal acts
22 were construed and the punishments determined. I can
23 tell you for an example, in the republican law, in
24 section 2 for murder, death penalty or minimum sentence
25 of 15 years. One of the examples that they give,
1 whoever kills someone in a brutal way merits that
3 What does it mean, "cruel and brutal way"?
4 Let's say that a victim was tortured for an hour or a
5 couple of hours, he was subjected to pain and
6 suffering, or if the murder was committed, let's say
7 that somebody wants to kill their spouse or their
8 parents, and they may tell them that they will be
9 giving them medicine, whereas, they would give them
10 poison, and the victim is not aware that he or she is
11 being killed. They are not aware of what is happening
12 to them and are unable to defend themselves. They
13 trusted them. So for a case like that, the republican
14 law provides the death penalty.
15 Your Honour, I don't know if I understood you
16 correctly, the other provisions -- the death penalty
17 could not be given particular categories for criminal
19 JUDGE KARIBI-WHYTE: Let's go over this. Do
20 you still have the death penalty as a form of
22 A. Can you specify which state do you have in
23 mind, which country?
24 JUDGE KARIBI-WHYTE: Well, in the Republic of
25 Yugoslavia, the former -- yes, is this still a form of
1 punishment in the former Republic of Yugoslavia?
2 A. Your Honour, I must admit to you that I'm not
3 familiar with the new legislation of the current
4 Federal Republic of Yugoslavia which concerns the two
5 republics. I'm not abreast with the developments
6 there. In the last eight years, I have not been in
7 that country. I can maybe tell you about what is
8 happening in Slovenia. The death penalty has been
9 abolished, as well as in Croatia, and in
10 Bosnia-Herzegovina, the new law has not been adopted
11 yet, but it envisages also abolishment.
12 JUDGE KARIBI-WHYTE: From your explanations,
13 you have two situations where 20 years could be
14 substituted for the death penalty. Apart from that,
15 you have minimum sentences. No one could serve a term
16 below 15 days and nobody could be punished for a period
17 beyond 15 years. These are minimum sentences under the
18 Republic of Yugoslavia codes; is that not so?
19 A. Yes, that is correct. Let me clarify one
20 point here. The regular legal framework of the
21 Yugoslav legislation regarding imprisonment ranged from
22 15 days to 15 years. That was the absolute -- the
23 general minimum was 15 days, and the general maximum
24 was 15 years. The prison sentence of 20 years was an
25 exception, which was provided for in the law as a
1 sentence for certain individual cases. This was both
2 in the federal and republican legislations. But I
3 pointed out that on 28 June, 1990, the eight instances
4 in which the death penalty -- for which the death
5 penalty was provided were deleted. They were
6 subsequently deleted from the republican law as well,
7 so that at the time when the war began, there was no
8 provision for a 20-year sentence in any legal
9 provision, in any of the laws in the former
10 Yugoslavia. There was only the 20-year prison sentence
11 as the alternative to the death penalty.
12 The legislators also had to provide a
13 specific legal framework for each individual crime.
14 Let's say for a rape, the framework was 1 to 10 years,
15 and this was the guideline for the courts. The range
16 would have been 1 to 10 years. They couldn't have gone
17 through that ceiling to 11 years, even though the
18 general maximum was 15 years. That was the case then
19 and it is so now.
20 JUDGE KARIBI-WHYTE: What I'm trying to
21 stress is it appears that you adopt a provision of
22 maximum sentences and minimum sentences. The
23 sentencing principles of the Code adopt such a policy
24 that you could not sentence for more than so many years
25 and not less than so many years. It is only in respect
1 of when you substitute for the death penalty in that
2 singular case, that you reduce this 20-year period. Is
3 that the interpretation of the policy of your Code?
4 A. Yes. In other words, the death penalty could
5 never be imposed as a single punishment for any
6 criminal offence. It always had to be stated
7 alternatively with the prison sentence. For example,
8 such and such criminal offences will be punished with
9 either the death penalty or a prison sentence. It
10 meant that a court could impose a death penalty or ten
11 years in prison, for example, or six, if it chose to do
12 so. But if it opted for a death penalty, for that
13 particular offender, that type of punishment could be
14 substituted with a 20-year prison sentence.
15 Finally, if the court chose to impose a death
16 penalty without substituting it for a 20-year prison
17 sentence, very often that death penalty was commuted to
18 a 20-year prison sentence by a higher instance court.
19 I believe I've been clear enough.
20 JUDGE KARIBI-WHYTE: One thing that bothers
21 me, whereas a minimum sentence might be mandatory, you
22 do not think a maximum sentence is mandatory. If you
23 have to punish for 15 years, you need not, but you
24 could not exceed that. So it's not mandatory to that
25 extent. Or, as you've just said, if you substitute
1 imprisonment in view of the death penalty, you need not
2 sentence a person to 20 years. You could sentence him
3 for less.
4 A. Let me answer the last part of your question
5 first. The death penalty could not be substituted for
6 a 10-year prison sentence. However, if the minimum
7 prison sentence for a particular criminal offence was 5
8 years or death penalty, then the court could -- was the
9 range of 5 to 15 years in prison, or death penalty in
10 the alternative.
11 JUDGE KARIBI-WHYTE: Is the minimum mandatory
12 you could not go below that. That is what I'm saying.
13 If it is a mandatory minimum sentence, it means you
14 cannot punish for less than 5 years or you cannot
15 punish for less than 15 days. If it is not mandatory,
16 you have a wide scope within which you can punish. And
17 similarly, except you said 15 years is mandatory, you
18 cannot go beyond 15 years, then you say that you cannot
19 punish anybody for more than 15 years. But when you
20 say for five years, if it is that punishment, then you
21 cannot go below that.
22 A. Maybe I was not clear enough. Under the
23 criminal legislation in the former Yugoslavia, there
24 was not a fixed punishment that was provided for any
25 criminal offence. I mean, you could not simply have a
1 3-year prison sentence for a particular criminal
2 offence. There was always a so-called regular criminal
3 framework inside of which a sentence could be imposed.
4 There were minima and there were maximums, and the
5 general maximum was 15 years.
6 In a specific case of murder, for example,
7 the court had the possibility of imposing a sentence
8 from 5 to 15 years in prison. That was the so-called
9 regular criminal framework. You asked whether it could
10 go below that framework. Yes. If certain legal
11 criteria have been met, of course, the court could
12 impose a less harsh sentence, and there were legal
13 provisions that regulated that type of punishment.
14 This was called mitigation of sentence, but it all went
15 in accordance with the legal principles and legal
16 provisions. It could also aggravate the sentence, that
17 is, impose a more severe sentence.
18 There are lots of various bases on which the
19 court could go below the minimum of a prescribed
20 sentence, and this was called mitigation of sentence.
21 Also, there was only one basis where the court could
22 impose a more severe sentence than the one provided
23 for in a specific crime. This was in the case of
24 multiple offenders, and of potential multiple
25 delinquents. Of course, there were very strict
1 conditions for the court to apply a more severe
2 sentence. This was the only case, that is the case of
3 multiple offenders.
4 The conditions set for this type of sentence
5 were set out in a cumulative way. Everything had to be
6 fulfilled before a court can impose a more severe
7 sentence. This is why it happened, actually, very
9 JUDGE KARIBI-WHYTE: We're trying to
10 separate, perhaps, the practise of the courts, and the
11 statutory provisions which make certain provisions for
12 sentencing. It appears here, and I don't know about
13 Article 39, but it talks about somebody talk not being
14 imprisoned for not less than 15 days. Nothing stops a
15 judge for imprisoning a person for 7 days. You don't
16 have to make it 15 days if you do not think that is
17 necessary to teach a person a lesson. But if it is
18 mandatory and it has to be 15 days, you can't go below
20 MR. MORAN: Your Honour, you might refer him
21 to Articles 42 and 43. That talks about going below
22 the statutory minimum, Articles 42 and 43.
23 JUDGE ODIO-BENITO: Doctor, excuse me, may I
24 pose a question to you, Doctor?
25 A. Of course.
1 JUDGE ODIO-BENITO: In your expert opinion,
2 is there any difference between an ordinary crime and a
3 war crime regarding the punishment of the perpetrator?
4 A. The courts applied the law the same way,
5 regardless of the type of crime. All the
6 circumstances, of course, were taken into account.
7 JUDGE ODIO-BENITO: We have here chapter 16
8 and the different kinds of crimes, war crimes, are
9 included. We have here some important differences.
10 For instance, genocide war crimes against a human
11 population, all of them receive a prison term no less
12 than 5 years or capital punishment, only these two
14 A. While assessing or evaluating the punishment,
15 the court takes into account the specific criminal
16 offence and the specific offender, perpetrator, and, of
17 course, the legal provisions as regards punishment. In
18 the case that you have mentioned, the punishment is the
19 same as in the case of an aggravated murder. The court
20 would apply the law in the same way, regardless of the
21 nature and the type of criminal offence. You are faced
22 with a criminal offence. You have to determine what
23 the circumstances are. You have to pose a valid legal
24 qualification of a particular criminal offence, and you
25 have to take into account all relevant circumstances
1 which might influence the type of sentence within the
2 legal framework that is provided for that particular
3 criminal offence.
4 Therefore, the court has to assess the
5 personality of the offender in its entirety and to
6 evaluate the circumstances of the commission of the
7 criminal offence. On the basis of that, it reaches its
8 decision as regards the punishment. Aside from that,
9 it could not go outside the legal framework. The
10 specific criminal offence, the type of criminal
11 offence, was not important in and of itself. There
12 were, of course, pressures which could be exerted on
13 the court, but the court always had to apply relevant,
14 legal provisions and could not go outside the
15 framework. Of course, there is no judge who likes to
16 see his decisions reversed or quashed by higher
17 instances. So they were quite careful when determining
18 their sentence.
19 JUDGE ODIO-BENITO: You are telling me that
20 for this law, it's the same to be a serial killer or a
21 war criminal, it's the same for the judge applying the
22 law? It's the same, exactly, to punish a serial killer
23 or a war criminal?
24 A. Well, it is possible for the court, for the
25 judge or a particular Trial Chamber to have its
1 objective approach as to whether the perpetrator was a
2 serial killer or a war criminal, but regardless of
3 their intimate conviction, they had to respect the
4 parameters of the punishment that were prescribed for
5 by the law. So regardless of their attitude, their
6 subjective attitude, towards the offender, they had to
7 stick to certain legal parameters. Of course, if they
8 are not careful about how they weigh between their
9 intimate convictions and legal parameters, they could
10 see their decisions quashed by a higher instance.
11 This legal framework always had to be
12 respected, regardless, again, as I say, of the specific
13 criminal offence.
14 JUDGE ODIO-BENITO: Of course the legal
15 parameters have to be respected, but we are talking
16 here of a prison term no less than 5 years or to
17 capital punishment. These are the legal parameters
18 talking about war crimes in your Penal Code; is that
20 A. Yes, that is correct.
21 JUDGE ODIO-BENITO: Thank you, Doctor.
22 JUDGE JAN: Do you have a copy of the Penal
24 MR. MORAN: The entire Penal Code, Your
1 JUDGE JAN: The section relating to
3 MR. MORAN: Your Honour, I do not have that.
4 I've been looking for the SFRY Penal Code in English
5 for months. As far as I know, it does not exist.
6 JUDGE JAN: In Article 37(2), that even in
7 the case where the death penalty is provided, it's to
8 be imposed only in extremely hard cases of serious
9 crimes. The guideline is there, 37(2). Have you got a
10 copy of the Penal Code?
11 MR. MORAN: We have numerous copies in
12 Bosnian Serbo-Croatian, but that does neither you, nor
13 I, any good. We have been looking for the Penal Code
14 in English, and we can have individual sections
15 translated, but, frankly, to translate the entire Penal
16 Code would be a Herculean task. The Prosecutor may
17 have done it. We just don't have the resources to do
19 JUDGE JAN: As I read this, Article 37(2),
20 the death penalty is not to be imposed ordinarily. It
21 is to be imposed only in the extremely hard cases.
22 MR. MORAN: That is correct, Your Honour, I
23 believe. In fact, if you like, there were two cases
24 that Dr. Tomic told me about where the death penalty
25 was actually applied. If you'd like, he can tell you
1 the facts of those cases.
2 JUDGE JAN: Those were extremely hard cases.
3 So that's the guideline.
4 MR. MORAN: Yes, Your Honour, I concur.
5 JUDGE JAN: Ordinarily, it's not the death
6 penalty. That's why I want to have a look at the Penal
7 Code. What are the penalties provided for?
8 MR. MORAN: For homicide?
9 JUDGE JAN: Yes.
10 MR. MORAN: Your Honour, Mr. Karabdic will
11 make a note, we'll get that translated, and we'll get
12 that to the Court as quickly as we can.
13 JUDGE JAN: It's a half reading, because I
14 just got it, the article.
15 MR. MORAN: Yes, Your Honour. We will get
16 those provisions of the individual sections of the
17 Penal Code. We can get those translated, and we can
18 get them to you. If not today, we can get them to you
19 tomorrow, because it is such a -- the task of trying to
20 translate the entire thing is beyond our resources.
21 JUDGE KARIBI-WHYTE: What about Appendix 3 of
22 what you just circulated here? It has Article 143, war
23 crimes against the wounded and ill.
24 MR. MORAN: Yes, Your Honour. We thank
25 Professor Bassiouni for that.
1 JUDGE KARIBI-WHYTE: Now, here, it's fairly
2 clear that you could sentence someone to a prison term
3 of not less than 5 years or to capital punishment.
4 MR. MORAN: Yes, Your Honour.
5 JUDGE KARIBI-WHYTE: So it's in the
7 MR. MORAN: Yes, Your Honour. On that, I
8 think the Professor might want to talk about that,
9 picking Article 143, the one you used, when it says a
10 prison term of no less than 5 years, whether that could
11 be a 50-year sentence or a 30-year sentence or whether
12 it is 15 years. I think the Professor might want to
13 speak to that.
14 I think also, Judge Odio-Benito, that might
15 have been your question that was not answered.
16 Q. Professor, if I could draw your attention to
17 Article 143, and that's the one that the Presiding
18 Judge was just talking about. Down at the bottom, it
19 says, "Shall be sentenced to a prison term no less than
20 5 years or to capital punishment." When it says "no
21 less than 5 years," could the court assess a 75-year
22 sentence or a 99-year sentence, or was the court
23 limited to a 15-year sentence if it did not impose
24 capital punishment?
25 A. In this case, the legal framework that is
1 provided for punishment, the minimum is 5 years, which
2 means from 5 up to 15 years in prison or,
3 alternatively, a death penalty. The prison term ranged
4 from 5 to 15 years, and the 20-year prison term
5 functioned only as a substitute for a death penalty.
6 There could not be a prison term of, let's say, 16 or
7 17 years. That was the relevant legal framework, that
8 is, the minimum was 5, the maximum was 15 years, or a
9 death penalty in the alternative.
10 Q. Doctor --
11 JUDGE JAN: How do you then explain clause 2
12 of Article 38? That takes the upper limit --
13 A. Which paragraph do you have in mind?
14 JUDGE JAN: Clause 2 of Article 38.
15 A. I don't have a translation.
16 MR. MORAN:
17 Q. For crime --
18 JUDGE JAN: I'll read it for you. "For
19 crimes for which the death penalty is provided," and
20 Article 43 is one where the death penalty is
21 provided," the court can pronounce imprisonment for a
22 term of 20 years" --
23 MR. MORAN: Judge, we're having a technical
24 problem. We're not getting the English through.
25 That's why he said he didn't have a translation. He's
1 not getting our English.
2 JUDGE KARIBI-WHYTE: Through the
4 MR. MORAN: Yes, Your Honour. Something has
5 happened, if we could check the interpretation.
6 Your Honour, I see he has, apparently, done
7 what I do every day, which is lay my hand down on the
8 panel, and the next thing I am doing is hearing Bosnian
9 through my earphones. I think he has done the same
11 Q. Professor, Judge Jan was directing your
12 attention to Article 38, Section 2 of the Code, which
13 says, "For crimes for which the death penalty is
14 provided, the court can pronounce the term of
15 imprisonment for 20 years."
16 MR. MORAN: Judge Jan, I think you wanted him
17 to explain how that operated; is that correct, Judge?
18 JUDGE KARIBI-WHYTE: This is a different
19 provision from the general, which he says you cannot
20 imprison for more than 15 years.
21 MR. MORAN: Yes, Your Honour.
22 JUDGE KARIBI-WHYTE: That's a separate
23 situation, because under Article 143, as a minimum
24 sentence of 5 years or capital punishment, and that is
25 a provision for which the death penalty is provided.
1 So you can sentence up to 20 years under Article 143,
2 despite the general provision of Articles 37 and 38.
3 MR. MORAN: It's 38(2). I think the
4 Professor will tell you how that worked, how that was
5 interpreted by the Yugoslav courts, because all I have
6 is exactly the same wording that you have.
7 JUDGE JAN: Let's draw his attention to
8 clause 3, going up to 20 years.
9 MR. MORAN:
10 Q. Professor, could you take a look at Articles
11 38, subsections 2 and 3, and explain to the Judges how
12 that worked, how your courts in the former Yugoslavia,
13 the former SFRY, interpreted those provisions?
14 A. You see under paragraph 1 of Article 38, a
15 general law was given, and it says, "The prison term
16 could not be shorter than 15 days and not longer than
17 15 years." This is the relevant legal framework for
18 this type of criminal offence. Paragraphs 1 and 3 are
19 some kind of -- 2 and 3, I'm sorry, are some kind of
20 exceptions to the general law. In a possibility of
21 prescribing a 20-year prison term was provided as an
22 alternative for the death penalty.
23 The criminal offence that you mentioned from
24 Article 143, for that type of criminal offence, the
25 court could prescribe a prison sentence ranging from 5
1 to 15 years. It could also impose a death penalty, and
2 it could substitute that penalty with a 20-year prison
3 sentence. It had to take into account the personal
4 circumstances of the offender, the circumstances of the
5 case, the general state of the individual, the
6 perpetrator, such as his health state and so on, his
7 personal circumstances and so on, whether his final
8 punishment will be 6 years or a death penalty, that was
9 upon the court to assess. The court, of course, had to
10 take into account all the circumstances that I have
11 mentioned, including the modus of the perpetrators and
12 the consequences that resulted from his commission of
13 the criminal act.
14 So, it has to view all these circumstances in
15 their entirety while assessing the appropriate type of
16 punishment. It had, of course, to take into account
17 the mitigation circumstances and aggravating
18 circumstances. On the basis of the whole of these
19 circumstances and conditions, the court was able to
20 assess an appropriate sentence for a specific
21 perpetrator for a specific criminal offence.
22 As regards the provision from paragraph 3 of
23 Article 38, this is a provision that I have already
24 mentioned. If a criminal offence was committed with
25 premeditation, the sentence prescribed could be up to
1 15 years in prison. It was also a possibility of
2 imposing a 20-year prison term. This particular case
3 happened some time, as I already mentioned, in 1970,
4 1971, and it related to a very specific case, but this
5 is not a relevant case, because we are dealing with
6 completely different cases here. This is a general
7 provision which was of an instructive character as
8 regards to federal legislation and also legislation of
9 the republics. It was used on one particular occasion,
10 and later on, it was established that these provisions
11 were not really relevant and could be used only in very
12 exceptional circumstances. They were no longer
13 necessary as part of the Criminal Code. Later on, they
14 were deleted. They no longer exist in our Criminal
15 Codes. Only this general provision has been retained,
16 which, in practical terms, does not mean a lot.
17 Are you happy with my answer? Do you want me
18 to explain further?
19 JUDGE KARIBI-WHYTE: You say these provisions
20 are deleted, because here we're dealing, largely, with
21 war crimes. Are they not part of the Penal Code?
22 A. If you look carefully at my report, you see
23 that I state it quite clearly, criminal offences for
24 which that punishment was provided. I don't know about
25 the pages. In my version, it is on page 10. It's the
1 Bosnian version. I could, perhaps, draw your attention
2 to the relevant parts of my report, but I need some
3 help with the translation.
4 JUDGE JAN: I have in mind your argument that
5 wanting the lesser sentence than death is by way of
6 mitigation, but here we have a different opinion,
7 because the death sentence is not the ordinary
8 punishment for wilful murder. It's only in extremely
9 serious, hard cases, and then we have this part too of
10 Article 38 that the court can read it as a punishment,
11 maximum punishment of 20 years. I was looking at that
12 from that angle.
13 MR. MORAN: Yes, Your Honour.
14 JUDGE JAN: Your argument is that the
15 conversion of the death penalty into 20 years or 15
16 years, whatever it is, is by way of mitigation.
17 MR. MORAN: Yes, Your Honour. That's the way
18 it was explained to me.
19 JUDGE JAN: It doesn't seem to be borne out
20 by the wording of the statute.
21 MR. MORAN: Your Honour, I think the
22 Professor can talk to that because people --
23 JUDGE JAN: He is talking about the fact that
24 the death penalty is a very real thing, and he is
25 talking about the events that took place in 1971 or
1 1979, or whenever it is.
2 MR. MORAN: Those were pretty brutal but
3 ordinary murders, as he described them to me.
4 JUDGE JAN: Extremely hard cases.
5 MR. MORAN: The way that it was explained to
6 me, and I have been over it with several people, was
7 the way it says in the argument, but if I'm wrong, the
8 Professor can tell me I'm wrong and I'm willing to --
9 he knows more about it than I do.
10 JUDGE KARIBI-WHYTE: Sometimes, the words in
11 the statute themselves are not so ambiguous as to look
12 for other explanations. If a war criminal is to be
13 treated in a particular way, do you think you need
14 somebody else to tell him how to treat him if the
15 statute is fairly clear as to what you should do?
16 MR. MORAN: Well, Your Honour, I don't know
17 about the ...
18 JUDGE KARIBI-WHYTE: If you read Article 143,
19 it's very clear. It does not say more than a war
20 criminal who is wounded and ill, if you treat him in a
21 particular way, it is aggravating circumstances that it
22 appears to look like. How are we supposed to deal with
23 the accused person in a particular way?
24 MR. MORAN: Your Honour, let me see if I'm
25 framing both of your questions right and see if I can
1 frame a question to the Doctor that might help clear
2 both of them up.
3 Q. Let's go to Article 143 for a second, Doctor,
4 where it prescribes a prison term of not less than 5
5 years or capital punishment. Then when you go back to
6 Article 37(2) it talks about --
7 JUDGE JAN: 38.
8 MR. MORAN:
9 Q. 38(2)? Okay. 38(2), it talks about the
10 court can pronounce a term of imprisonment for 20 years
11 for crimes for which the death penalty is provided.
12 Now, focusing on Article 143, if a person were
13 convicted of Article 143 and the court did not impose a
14 death sentence under the provisions that it's an
15 extremely hard case, what would be the punishment that
16 the court could assess, and I'd like you to focus, in
17 your explanation, on the interpretation of Article
18 38(2) by your courts. That's what you're asking.
19 JUDGE KARIBI-WHYTE: Let's break here. We'll
20 come back at 12.00 so that he might have to think about
22 MR. MORAN: Yes, Your Honour. I'll let him
23 think about it.
24 JUDGE JAN: Clauses 2 and 3 are exceptions to
25 clause 1.
1 MR. MORAN: Yes, Your Honour.
2 --- Recess taken at 11.33 a.m.
3 --- On resuming at 12.07 p.m.
4 MR. MORAN: Your Honour, we have found a
5 translation that I didn't know we had of the Bosnian
6 Penal Code regarding murder. We're waiting for the
7 copier to warm up. It's just been handed to me, Judge,
8 so with the usher's assistance, I believe we have
9 sufficient copies for the Prosecutor. In fact, it
10 appears to be an OTP document.
11 MS. McHENRY: I was going to tell Defence
12 counsel I believe we had found at least Article 36, the
13 homicide section of the Bosnian.
14 MR. MORAN: That may be what we're passing
15 out. I didn't keep a copy. If the usher would be so
16 good as to give me a copy so that I know what we're
18 Your Honour, I think that may answer some of
19 your questions. Over the break, we had a discussion
20 with the Professor, and I think there was a
21 miscommunication on -- he didn't understand the
22 question that was being asked or maybe I didn't phrase
23 it as artfully as I could have.
24 Q. Professor, could you explain to the Judges
25 Article 38(2), how that was interpreted by the courts
1 of the former Yugoslavia?
2 A. Regarding Article 38(2), which provides for
3 an exceptional possibility of pronouncing a term of
4 imprisonment of 20 years, this was something that the
5 court could take into account and select between a
6 prison sentence of 5 to 15 years in prison and the
7 death penalty. The court could compromise a solution,
8 so it could pronounce a sentence of that length, taking
9 into consideration the purpose, the general and special
10 prevention, and if it would find that the death
11 penalty, in the context of a specific crime which had
12 been committed, and the personal traits or
13 characteristics of the perpetrators, and would come to
14 a determination that the death penalty should not
15 apply, but would also find that a 15-year prison term
16 would not be appropriate, then this was a safety valve,
17 of sorts, to avoid the death penalty and that the death
18 penalty be confined to the most extreme cases, and yet
19 the 15-year prison term would not be appropriate
21 This is why there were very, very few death
22 penalties which were pronounced in Yugoslavia, and even
23 if they were pronounced, they were commuted to 20-year
24 sentences. As I mentioned previously, I am aware of
25 only two death penalties which were not commuted and
1 for which a pardon was not granted eventually.
2 MR. MORAN: Your Honours, does that answer
3 your question? Judge Jan, I think you were the one who
4 posed that question. Does that answer your question?
5 JUDGE JAN: Yes, it does.
6 MR. MORAN: As long as it's to your
7 satisfaction, because that's why we're here on this.
8 Q. Article 38(3) talks about a crime committed
9 with intentional fault. The prison term of up to 15
10 years is provided. A 20-year imprisonment can also be
11 pronounced in severe forms of such crime. How did the
12 courts of Yugoslavia interpret that provision? What
13 was the interpretation that was given to it by the
15 A. I mentioned earlier that this was a provision
16 in law that was present for both the federal and
17 republican laws. In section 3, it says, "For the crime
18 committed with intentional fault, the prison term of up
19 to 15 years is provided." Let's say for a murder, for
20 severe forms of such a crime, a 20-year prison term can
21 also be pronounced. This means the legislature, let's
22 say the federal legislature, for a specific case, or
23 the republican parliament of the former Yugoslavia
24 could also adopt such a law.
25 When this law was changed in the mid '70s, it
1 looked attractive because it appeared flexible with
2 respect to certain abstract concepts of crime.
3 However, the practice showed that this provision
4 remained a dead letter. Even in cases for which it was
5 pronounced, it was never applied. I can give you an
6 example of eight criminal acts for which the 20-year
7 prison sentence was prescribed. It would be a minimum
8 of 5 years or a maximum of 20. So it would be 5 to 15
9 or 20, and 16, 17, or 18 were not an option.
10 If you want me to, I can give you those
11 eight -- they were very serious criminal acts. These
12 are all qualified acts, and they were aggravated acts.
13 This was a qualified case of disclosure of a state
14 secret, so it would be a minimum of 5 and a maximum of
15 20 years in prison. Then the most serious acts of
16 falsification of money or symbols of value, and very
17 serious cases of plunder, issuing unpayable cheques,
18 plunder by misuse of professional position, or plunder
19 of weapon or parts of fighting instruments, and,
20 finally, serious cases related to endangering air
21 traffic. That meant kidnapping an aircraft and
22 endangering the safety of a flight. This was something
23 that was topical in the '70s, and there were very
24 serious consequences of that, which is why the federal
25 legislature provided special provisions for prison
1 terms of up to 20 years.
2 On June 28, 1990, new amendments were
3 adopted, and the 20-year prison sentence with respect
4 to these crimes was struck. Even though the general
5 provision of the law was kept, it is only a general
6 provision, and it allows a possibility for the
7 legislature to prescribe, but not for a judge to
8 apply. In other words, this provision is more of an
9 instruction for the legislature, regardless of whether
10 it is federal or republican, and it opens a possibility
11 for them.
12 But with respect to the Criminal Code of the
13 then Socialist Republic of Bosnia and Herzegovina, such
14 a sentence was only provided for five crimes, again,
15 serious crimes against the health of people, the making
16 of false papers of value, plunder, serious crimes
17 against security of people and properties, and serious
18 crimes against safety of public traffic.
19 For instance, when there was a very serious
20 traffic accident, and let's say the driver was taking
21 school children on an outing. They sit down to relax.
22 He had something to drink and then had an accident, and
23 12 children were killed, or something like that.
24 However, through the amendments of the republican laws
25 of July 1991, such crimes, that is, such a 20-year
1 sentence was struck. Some of the acts -- the robbery
2 was completely struck, whereas, again, those 20-year
3 sentences were also struck, and only the general
4 provision remained, so that this alternative
5 disappeared, the maximum prison sentence or the 20-year
7 Q. During the period we're focusing on, which is
8 between May and December 1992, are you saying that
9 there were no crimes in the former Yugoslavia, in BH,
10 Bosnia-Herzegovina, the Republic of Bosnia-Herzegovina,
11 for which Article 38(3), the 20-year sentence, applied;
12 is that correct, Doctor?
13 A. Yes, that is correct. I have a copy of both
14 the Federal Criminal Code and the Republic Criminal
15 Code. I can point out the specific or relevant part.
16 You will see that there is no provision for a specific
17 criminal offence for which a 20-year prison term is
18 prescribed. That simply did not function in practice
19 at the time. The only thing that remained was a
20 20-year prison sentence as a substitute for a death
21 penalty. This was in accordance with the principle of
22 the rehabilitation.
23 MR. MORAN: If the Court has no further
24 questions, or if there's nothing else I need to
25 clarify, I would be happy to pass the witness.
1 JUDGE KARIBI-WHYTE: Any questions?
2 JUDGE JAN: We have an expert in the criminal
4 MR. MORAN: Your Honour, we thought about
5 using her as the expert, but we thought that that might
6 create a slight conflict.
7 MS. RESIDOVIC: Your Honours, I hope that I
8 will be of some assistance to return you a favour,
9 because I have learned a lot from you. I hope I can
10 teach you something from our legal system and
12 Cross-examined by Ms. Residovic:
13 Q. Thank you for allowing me to proceed. Good
14 morning, Dr. Tomic.
15 A. Good morning.
16 Q. My name is Edina Residovic, and I represent
17 Mr. Zejnil Delalic. Is it true, Professor, that we
18 have known each other for a very long time?
19 A. Yes, it's true.
20 Q. We need not mention the exact number of years
21 we've known each other. Professor, I'm sure you know
22 that the Rules of this Tribunal, that is, the provision
23 contained within Article 101, paragraph 3, that the
24 possibility was given to this Criminal Tribunal to have
25 in mind, to take into account, while assessing the
1 appropriate penalty, the usual practice of determining
2 sentences before the courts in the former Yugoslavia.
3 Are you familiar with this particular provision?
4 A. Yes, I am.
5 Q. Professor, I will, therefore, ask you to
6 discuss this particular issue so that we can facilitate
7 the task of this Tribunal, that is, the determination
8 of sentence and a possible pronouncement of sentence,
9 if it should decide that one of the accused has,
10 indeed, committed a criminal offence.
11 Professor, could we kindly go back to the
12 discussion you had with my learned colleague Mr. Tom
13 Moran in connection with the application of Article 38
14 of the general part. I think we should tell this Court
15 that there are two parts in our criminal legislation.
16 There is the general part, which is intended for courts
17 and the legislator, and the second part which analyses
18 various specific criminal acts; is that correct?
19 A. Yes, it is.
20 Q. These individual criminal acts in the former
21 Yugoslavia, including Bosnia and Herzegovina, were
22 divided in two parts, that is, the Federal Criminal
23 Code and the Criminal Code of the six Republics?
24 A. Yes, that's correct.
25 Q. To be more specific, criminal acts against
1 international law were provided for in the Federal
2 Criminal Code, whereas, murder, theft, and so on were
3 provided for in the Criminal Codes of various
5 A. Yes, that is correct.
6 Q. Let us repeat the provisions contained in
7 Article 38, while bearing in mind the concrete
8 application of these provisions before the courts in
9 the former Yugoslavia. The courts in the former
10 Yugoslavia, while assessing penalties, were bound by
11 the framework that was prescribed for the relevant
12 criminal offence?
13 A. That is correct, yes.
14 Q. If, for a particular crime, there was a
15 minimum sentence that was prescribed, then the maximum
16 was 15 years in prison; is that correct?
17 A. Yes, but it was not necessarily so, because
18 the general maximum was 15 years in prison.
19 Q. Yes, but the legislator could also impose a
20 specific minimum and a specific maximum sentence?
21 A. Yes. For each criminal offence, there was a
22 specific criminal framework in terms of sentencing, and
23 the legislator would use various models while imposing
24 these frameworks, these parameters.
25 For example, there was a so-called closed
1 model of a legal framework. For example, a criminal
2 act carries a sentence from 5 to 10 years in prison.
3 That was a specific minimum that was prescribed for
5 Q. I believe this is quite clear for the Court.
6 What it means is that a court could impose, could
7 pronounce, any sentence between 5 and 10 years in
8 prison. However, if that specific maximum was not
9 indicated, was not prescribed, then the court could
10 also pronounce a sentence ranging from 5 up to 15 years
11 in prison. This maximum could never be exceeded,
12 except for exceptional circumstances which were
13 provided for in the law?
14 A. Yes, that is correct. If no mention was made
15 of a specific maximum penalty, then it was thought, it
16 was understood, that the maximum would be the general
17 maximum provided for by our law, that is, the 15 years
18 in prison.
19 Q. Thank you. Judge Jan drew your attention to
20 the provision contained in paragraph 2 of Article 38,
21 which provides for the possibility of substituting the
22 death penalty with a 20-year prison sentence?
23 A. Yes.
24 Q. Could you tell us, please, whether this
25 particular legal provision was, indeed, applied in
1 practice of the Yugoslav courts, in such a way as this
2 was a power of the court that could be used when the
3 court believed that the 15-year prison sentence was not
4 harsh enough and the death penalty was deemed to be too
5 harsh. In that case, the court opted for a 20-year
6 prison sentence?
7 A. Yes. That was a general rule.
8 JUDGE JAN: The death penalty, under Article
9 37 was to be imposed only in extremely hard cases.
10 Therefore, the ordinary punishment would be in cases
11 where the law prescribes a death penalty governed by
12 clause 2 of Article 38. That's what I said.
13 MS. RESIDOVIC: Yes.
14 Q. When the word "prescribe" is mentioned, it
15 means that the law is giving the right to the
16 legislator to determine which are these cases, which
17 are the most serious crimes?
18 A. Yes, that is correct.
19 Q. So it is not the right of a judge to
20 determine which crimes are the most serious crimes. A
21 judge could not determine that a particular situation
22 was a situation where the most serious punishment could
23 be imposed?
24 A. Yes, that is correct. No judge could create
25 a criminal offence.
1 Q. Judge Jan asked you something about a murder,
2 a murder is always a murder. Do you remember that
4 A. Yes, I do.
5 Q. Is it true to say that, under our republic
6 criminal legislation, a premeditated murder carried a
7 penalty ranging from 5 to 15 years in prison, and that
8 a judge, for a simple premeditated murder, could impose
9 a sentence which fell under this framework, that is, 6,
10 10, 14, or 15 years in prison?
11 A. Yes, that is correct. The maximum was 15
13 Q. Is it also true that the legislator, and not
14 the judge, prescribed the most severe cases of murder
15 in which and for which an alternative for the prison
16 sentence was also a death penalty?
17 A. Yes. This was prescribed by the law.
18 Q. You're referring to Article 36, paragraph 2
19 of our Criminal Code?
20 A. Yes, that's correct.
21 Q. It was only in that case, and you have
22 mentioned only two cases of aggravated criminal
23 offences, namely, aggravated murder, murder committed
24 out of revenge, and so on, and only if the facts
25 established for that particular criminal case lead the
1 court to believe that it is this aggravated type of
2 criminal offence that's been committed. Only once that
3 has been established the court can then decide whether
4 to pronounce the most severe prison sentence, that is,
5 the 15 years in prison, or it can opt for a death
6 penalty. Was that the case?
7 A. Yes. That was the case.
8 Q. If the court, in a specific case, decided
9 that the prescribed sentence was not adequate for the
10 seriousness of the case, and if it decided that it
11 should apply the alternative, that is, the prescribed
12 death penalty, is it true, Professor, that at that
13 moment, in that case, the legislator, on the basis of
14 Article 38, paragraph 2 of the Federal Criminal Code,
15 gives him the possibility to substitute that death
16 penalty with a 20-year prison sentence? Is that the
17 correct interpretation and application of legal
18 provisions in our courts?
19 A. Yes. This would be the appropriate
20 application of that provision.
21 Q. Let us review a few articles which were
22 pointed out to you by Judge Odio-Benito, namely,
23 criminal acts provided for in the special section of
24 the Criminal Code, that is, the criminal offences
25 against the international humanitarian law. I believe
1 that the Judges have the translation of Articles 142
2 and 143.
3 Professor, I would kindly ask you to discuss
4 now the application of these provisions, namely, the
5 provisions which carry a prison sentence with an
6 indicated 5-year minimum and the alternative penalty
7 being a death penalty.
8 When the courts in the former Yugoslavia were
9 faced with such a situation, that is, with a necessity
10 to establish that a serious criminal offence was
11 committed, is it true that the court had an alternative
12 of pronouncing a 5-year to 15-year prison sentence,
13 depending on the particular circumstances of the case,
14 of course, or its alternative, to pronounce a death
15 penalty for that particular criminal offence; is that
16 correct, Professor?
17 A. Yes, it is.
18 Q. If our court opted for a prison sentence, it
19 means that it could easily pronounce any sentence
20 ranging from 5 to 15 years in prison; is that correct?
21 A. Yes, it is.
22 Q. However, if the court opted for a death
23 penalty, it had the power, it had the authority, in
24 accordance with general provisions, to replace, to
25 substitute the death penalty with a 20-year prison
2 A. Yes, that's correct.
3 Q. Professor, you are probably familiar with one
4 such case which was tried before a court in Bosnia and
5 Herzegovina and which took place in 1980 and which was
6 finally adjudicated in 1981?
7 A. Yes, I'm familiar with it. I know which case
8 you have in mind.
9 Q. This was the only case of a war crime that
10 was ever tried before our national court?
11 A. Yes, that's correct.
12 Q. It was a case of a war crime committed
13 against the civilian population in 1941, and it was an
14 aggravated case of that crime. It was committed under
15 exceptionally severe circumstances?
16 A. Yes, that's correct.
17 Q. The male population of one village was
19 A. That's correct.
20 Q. Women were killed and underaged children were
21 also killed?
22 A. Yes, that's correct.
23 Q. Is it true that in that particular case, the
24 first instance court substituted the death penalty with
25 a 15-year prison sentence. And in the case of one of
1 the accused, the death penalty was substituted by a
2 higher instance court with a 20-year prison sentence?
3 A. Yes, that is correct.
4 Q. The court dealt with an exceptionally severe
5 case of murder, including murder of women and under-aged
7 A. Yes. It was a very severe case.
8 Q. Yet the court in Bosnia and Herzegovina did
9 not opt for capital punishment?
10 A. That is correct.
11 Q. Professor, in spite of the seriousness of the
12 case, there may be some significant mitigating
13 circumstances which characterise not only the
14 perpetrator but the crime itself?
15 A. Yes, that's correct.
16 Q. When a court finds exceptionally mitigating
17 circumstances, even in the case of such a harsh offence
18 in respect of both the perpetrator and the
19 circumstances of the crime, is it true, Professor, that
20 the court in that case is not bound by the minimum
21 prescribed by the law?
22 A. Yes, that is correct.
23 Q. Therefore, if the circumstances are such in
24 the application of these particular provisions before
25 the courts of Bosnia and Herzegovina, the court had the
1 right to further commute the minimum 5-year sentence
2 and to finally pronounce a 1-year prison sentence; is
3 that correct?
4 A. Yes, that is correct.
5 Q. Therefore, it is the mitigating circumstances
6 that provide the court with the possibility to
7 pronounce a sentence, even in such grave cases, ranging
8 from 1 to 15 years in prison; was that the case?
9 A. Yes.
10 Q. Thank you, Professor. The situation is
11 identical in cases of qualified murders. In the case
12 of a qualified or aggravated murder, mitigating
13 circumstances are also taken into account, and the
14 sentence can be commuted to a 1-year prison sentence;
15 is that correct?
16 A. Yes. The sentence can be reduced. If I can
17 explain, we're dealing with general provisions of the
18 Criminal Code of the former Yugoslavia, which related
19 to any perpetrator and any criminal act.
20 Q. Thank you, Professor. Let me go back to the
21 question asked by Judge Jan, when he asked you whether
22 a murder is not a murder in any case. We have seen
23 very serious cases of murder, and we call them
24 qualified murders in accordance with our legal
25 practice, in accordance with our law?
1 A. Yes, that's correct.
2 Q. However, there are less serious types of
3 murders which we call privileged cases of murder?
4 A. Yes, that is correct.
5 Q. I believe that we are familiar with the
6 institution of unintentional murder --
7 JUDGE JAN: Murder and homicide. All
8 homicides are not murders.
9 MS. RESIDOVIC: Yes. I'm not referring to
10 homicide or I'm not referring to unintentional
11 killing. However, I would like the Professor to
12 explain to us the fact that there are two other types
13 of premeditated murder under our criminal legislation,
14 namely, wilful murder, that is, the case where the
15 perpetrator acted out of his emotions and could not
16 resist committing the crime.
17 Q. Is that correct?
18 A. Yes, it is correct, and there is a sentence
19 that is prescribed for that type of murder.
20 Q. Is it true, Professor, that premeditation is
21 necessary for a person to commit a murder?
22 A. Yes, absolutely.
23 Q. However, it is also possible for a
24 perpetrator to want to intentionally wound someone, and
25 that his intent results in death?
1 A. Yes, that is correct.
2 Q. Is it true then that we have, under our legal
3 system, the institution of infliction of serious bodily
5 A. Yes, that's correct.
6 Q. And a much lesser sentence is prescribed for
7 that type of criminal offence?
8 A. Yes, that is true. For a simple type of
9 murder, a simple type of murder carries a 5-year to
10 15-year prison term. For that specific criminal act
11 that you mentioned, infliction of serious bodily harm
12 which results in death, is different in terms of
13 criminal responsibility. Therefore, the criminal
14 responsibility is assessed differently in view of the
15 consequence that resulted from that type of criminal
16 act, that is, the infliction of bodily harm. The death
17 that resulted is not the result of his premeditation.
18 What the result of his premeditation is the serious
19 bodily harm, however, the death was not premeditated.
20 So in respect of the consequence, the sentence was
21 significantly different, that is, that in that
22 particular case, it ranged from 1 to 10 years in
23 prison, although in the end, because of the
24 consequences, it looks the same, it is not the same
25 case because of the circumstances.
1 Q. You have spent several years analysing these
2 problems. Would you agree with me if I say that the
3 court practice of Bosnia and Herzegovina, which, let me
4 say, was one of the most harsh, most severe in the
5 former Yugoslavia, always took into account the minimum
6 of the prescribed sentence?
7 A. Yes, that is correct. In most cases, the
8 penalties that were pronounced were at the level of the
9 specific minimum that was prescribed for a particular
10 criminal act. Let me give you an example for that. In
11 cases of murder, the usual sentences that were
12 pronounced for a simple murder, the one contained in
13 Article 36 of the Bosnian Criminal Code, the sentences
14 ranged from 6 to 6.5, in spite of the fact that the law
15 prescribes a maximum of 15 years in prison.
16 Q. Thank you.
17 A. In some other cases, the sentences were even
18 less harsh.
19 MS. RESIDOVIC: Thank you, Professor. With
20 the permission of the Court, if the Court believes that
21 these issues have been clarified, I would like to move
22 on to another area which might be of interest in this
23 particular case.
24 Q. In your report, Professor, you make mention
25 of a special institute of our criminal practice and
1 legislation, that is, the mandatory application of a
2 less harsh sentence?
3 A. Yes, that is correct.
4 Q. It is provided in Article 4 of the Criminal
5 Code of the SFRY. Could you tell us what is the basic
6 rule, which law is applied by our courts while
7 pronouncing the sentence according to the principle
8 nulla crimen sine lege, and when applying that
9 principle, are there any exceptions in that regard?
10 MS. McHENRY: May I just clarify, make sure
11 there's not an error, when you said Article 4 of the
12 SFRY, do we have a translation of that or did you mean
13 Article 40?
14 MS. RESIDOVIC: Article 4 of the Criminal
15 Code of the Socialist Federal Republic of Yugoslavia
16 which speaks about the mandatory application of a less
17 harsh criminal legislation.
18 MS. McHENRY: May I ask if any counsel has a
19 translation of that?
20 MS. RESIDOVIC: Since it is not a very long
21 article, I can read it out to you. It is possible that
22 we have the translation, but I will read the text of
23 the article, and on the basis of that, the Professor
24 will provide his interpretation of the article.
25 Q. The title of this article is "The Mandatory
1 Application of a Less Harsh Criminal Law."
2 Paragraph 1: "In respect of the perpetrator of a
3 criminal offence, a Criminal Code which was valid at
4 the relevant times shall be applied." Paragraph 2
5 reads as follows: "If, after the commission of the
6 criminal act, the criminal law was amended on one or
7 several occasions, the criminal law which is less harsh
8 in respect of the perpetrator shall apply."
9 Professor, would you kindly explain the
10 meaning of this provision and tell us how it was
11 applied in practice? I have read the relevant text.
12 Let me ask you a specific question: Which law is
13 applied by the court when assessing or pronouncing the
15 A. As you said, paragraph 1 of Article 4
16 provides for a general principle in respect of the
17 perpetrator of the criminal act in accordance with the
18 Yugoslav criminal law. The law that was always
19 applied, that had to be applied, was the law that was
20 valid, that was in force at the time of the commission
21 of the criminal act. That was a general principle, and
22 there was only one exception to that rule, to this
23 basic provision of the Yugoslav criminal law, and that
24 case is provided for in paragraph 2 of the same
25 article, Article 4, where the federal legislator, on
1 the basis of a constitutional provision, and it's the
2 federal constitution that I have in mind and Article
3 211, paragraph 3, Article 211, paragraph 3 of the
4 constitution of the Socialist Federal Republic of
5 Yugoslavia, on the basis of that provision, the
6 legislator had an obligation to prescribe a provision
7 relating to the mandatory application of a less harsh
9 Q. Let me ask you --
10 A. Will you please allow me to finish? From the
11 time of the commission of the criminal act until a
12 final judgement is reached, if, during that period of
13 time, the law was amended on one or several occasions,
14 the court was bound to apply the law which was less
15 harsh in respect of the perpetrator. That was a
16 constitutional obligation. If the court did not act
17 accordingly, it would commit a serious mistake, and its
18 verdict would eventually be quashed.
19 Q. Thank you, Professor. I think you have
20 answered my question. This mandatory application of a
21 less harsh sentence was mandatory for courts?
22 A. Yes, absolutely.
23 Q. Since our Rules, the Rules of the Tribunal,
24 provide for an obligation to take the national practice
25 into account, I would like you to dwell on the practice
1 of our courts, that is, the courts in the former
2 Yugoslavia. I will ask you to comment on what I will
3 say, to confirm it or not.
4 Is the true, Professor, that if a new law
5 ceased or stopped to qualify a particular act as a
6 criminal act, then the court deemed that that
7 particular law was a less harsh law for the
9 A. Yes, that is correct.
10 Q. Is it correct, Professor, that the courts
11 deemed and applied, as a less harsh law, that law which
12 provided for a less harsh sentence, a prison sentence
13 instead of a death penalty, a fine instead of a prison
14 sentence? Was that considered to be a less harsh law?
15 A. Yes, it is.
16 Q. Professor, the law that reduced, that deleted
17 the minimum sentence was also considered to be a less
18 harsh law in that respect?
19 A. Yes, that is correct.
20 Q. Is it true that the courts would accept, as a
21 less harsh law, that law which provided for the
22 possibility of the perpetrator to be exempt from
24 A. Yes, that is correct.
25 Q. However, Professor, there were cases of a law
1 being passed, a law that abolished a specific minimum
2 and increased, at the same time, the specific maximum
3 for a particular criminal offence. I would like to
4 know how courts treated that particular law.
5 For example, the former provision was 3 to 10
6 years in prison, and later on, the law established a
7 15-year prison sentence. Could you explain to us how
8 that particular law was then applied by courts in terms
9 of this lesser minimum and higher maximum sentence?
10 A. In these cases, the court practice, used as a
11 legal framework, thought that the legal framework was
12 unnecessarily too narrow. When a new law was passed
13 which made it wider, that particular framework --
14 sorry, just let me finish.
15 If the previous situation was such that the
16 perpetrator would be sentenced from 1 to 10 years in
17 prison, and the current situation provided for the
18 possibility of sentencing the perpetrator to 10 years
19 in prison, in that case, the law that provided for a
20 minimum sentence was applied. Of course, it is
21 understood that the specific maximums indicated were
22 the same.
23 If, however, one law provided for a higher
24 specific minimum and a lower specific maximum, in that
25 case, that law could not be considered to be less
2 Q. I think you've made a mistake, a higher
3 specific maximum?
4 A. Yes. We are now discussing the application
5 of a less harsh law. In any case, the lower specific
6 minimum was considered to be the most important. At
7 the same time, the specific maximum also had its
9 If, for example, the court should decide to
10 apply the law carrying a lower specific minimum and a
11 higher specific maximum, in that case, the sentence
12 that was eventually pronounced could not exceed the
13 specific maximum that was provided for in the law that
14 was found to be more harsh for the perpetrator,
15 because, in doing so, the court would have made a
16 judicial mistake.
17 Q. Before we break for lunch, I would kindly ask
18 you to spend a little more time in explaining this.
19 For example, if, for a specific criminal act which
20 previously carried a minimum of 3 and a maximum of 10
21 years, a minimum of 1 and a maximum of 15 years is now
22 established, the court, in practical application of
23 that particular law, could pronounce a 1-year sentence,
24 because it is a less harsh sentence than the 3-year
25 sentence, according to the new law. But, however, it
1 could not pronounce a sentence that was higher than 10
2 years in prison, regardless of the possibility provided
3 for in the new law which prescribed the maximum 15
4 years, because this would have been a more harsh
5 sentence. The court would have applied a more harsh
6 law, and it would have been an inappropriate
7 application of the relevant provisions.
8 A. Yes, that is correct.
9 Q. We have spent some time --
10 JUDGE JAN: I'm not sure it's relevant.
11 There are many countries there is a fundamental right
12 that you can't be given a sentence that was -- I don't
13 think it's really important for us. In many countries,
14 there is a fundamental right that you can't be given a
15 harsher sentence than what was described at the time
16 when the offence was committed, although the courts
17 might take into account that the minimum has been done
18 away with.
19 MS. RESIDOVIC: After the break, I'll try to
20 stick to the relevant portions, but let me first just
21 try to finish this particular issue.
22 Q. Professor, if no death penalty is provided
23 for a specific act, is it true that the 20-year prison
24 sentence could not be pronounced either?
25 A. Yes, that is true. That was --
1 Q. So if, for example, life imprisonment is
2 provided for and there is no death penalty, what would
3 be the maximum sentence that could be pronounced to the
4 perpetrator? Is it 15 years?
5 A. Yes. It's 15 years.
6 MS. RESIDOVIC: Thank you very much,
7 Professor. After the break, I will discuss mitigating
8 and aggravating circumstances in relation to the
9 personality of the offender. However, I will try to be
11 JUDGE KARIBI-WHYTE: Thank you very much. I
12 think we can now break and reassemble at 2.30.
13 --- Luncheon recess taken at 1.03 p.m.
1 --- On resuming at 2.35 p.m.
2 (The witness entered court)
3 JUDGE KARIBI-WHYTE: Ms. Residovic, you are
4 still on your exercise. Actually, I thought it would
5 be better if you try to lead evidence or make
6 cross-examinations about mitigation and things like
7 that. We are not that confused about the position in
8 Yugoslavia. It's not as obscure as that. Fortunately,
9 we've had an opportunity to look at the laws, and we
10 can make our own deductions.
11 MS. RESIDOVIC: Your Honours, as I pointed
12 out, I'm going to just limit myself to Rule 101 of our
13 Rules of Procedures and Evidence is instructing us to
14 do. During the break, I think we finally managed to
15 get an English translation of the Bosnian Criminal
16 Code, and I hope that by tomorrow I may be able to
17 provide you with a copy of the full text of the law so
18 that you may be able to use it in the future, if you so
20 JUDGE KARIBI-WHYTE: Thank you very much.
21 That will be very helpful.
22 MS. RESIDOVIC:
23 Q. Professor, as I just pointed out to Their
24 Honours, I would like to take you back to what Rule 101
25 of this Tribunal is referring to, in other words, to
1 see what the general practice is regarding prison
2 sentences in the courts of the former Yugoslavia and
3 today's Bosnia-Herzegovina.
4 Up until now, we have talked about legal
5 provisions, about the frameworks, and the limits
6 imposed upon the courts. Now I would like to request
7 that you help the Tribunal understand what the practice
8 was in our courts and what they were taking into
9 account when passing sentences; do you agree with me?
10 A. Yes, I do.
11 Q. Along with our motions, we provided to the
12 Tribunal, and I believe that the Prosecution did as
13 well, we provided the translation of Articles 41 and
14 42, that is, the translation of articles, and I hope
15 you can agree with me, which provide the general rules
16 for the determination of sentence and the mitigating
17 circumstances which would allow the sentences to be
18 lower than provided by in the law. We are not going to
19 dwell on the text of the law, because we are familiar
20 with it by now. But, Professor, can you tell me, is it
21 true that one of the circumstances which courts
22 consider when determining a specific sentence to a
23 specific perpetrator is the level of his criminal
25 A. Yes. The degree of criminal responsibility
1 is the first criteria in that article regarding the
2 determination of individual sentence.
3 Q. Our courts judge whether he was fully
4 responsible or partially responsible, and the criteria
5 are set out in our law; is that correct?
6 A. Yes, it is. This is all within the framework
7 of the degree of criminal responsibility. First, the
8 degree of accountability was used, whether it was
9 diminished responsibility or the responsibility was
10 completely lacking.
11 Q. Professor, we will not talk about the lack of
12 responsibility, because that is not the case that would
13 carry any sentence; is that correct?
14 A. Yes, that is correct, because a person with a
15 lack of responsibility does not have any criminal
16 responsibility. They may be liable to some medical
18 JUDGE JAN: Naturally where criminal
19 liability is lacking there will be no offence
20 committed. You don't need to ask an expert these
22 MS. RESIDOVIC: Your Honours, I said that we
23 were not talking about it, but the Professor still
24 provided an answer, and I had not expected him to do
25 so. But I'm focusing on two other criteria for
1 determining sentence.
2 Q. Professor, is it true that if somebody's
3 criminal responsibility is significantly lower, that
4 the court can actually give him a lighter sentence?
5 Let's say if the sentence was 5 years, he can be given
6 1 to 3 years; is that correct?
7 JUDGE JAN: Naturally.
8 A. Yes, that is correct.
9 JUDGE JAN: The sentence centres around his
10 responsibility, the circumstances under which the
11 offence was committed and his link with the offence
12 committed. So why ask these general questions?
13 MS. RESIDOVIC: Your Honours, these are the
14 circumstances that are taken into consideration by the
15 courts in Bosnia regarding the length of sentences, and
16 I just wanted to mention all the circumstances, not
17 just what is written down in the law.
18 JUDGE KARIBI-WHYTE: Rule 101 also spells
19 those things also. They are spelled out in Rule 101.
20 JUDGE JAN: In any case, you can't give a
21 very precise definition of what is a mitigating
22 circumstance. There are no hard and fast rules in this
23 regard. It is for the court to determine under what
24 circumstances the offence was committed when
25 determining the sentence.
1 MS. RESIDOVIC: Your Honour, I know that
2 everywhere in the world, the rules are the same as with
3 us. As Judges, you must have encountered this
4 situation a thousand times. However, our Rule says
5 that we need to take into account the practice of the
6 courts in the former Yugoslavia, in other words, what
7 was taken as mitigating circumstances.
8 JUDGE JAN: When determining the quantum of
9 sentence, you take the totality of the circumstances,
10 the whole circumstances of the whole case. You can't
11 have any definitions or hard and fast rules that this
12 is not a mitigating circumstance under these
13 circumstances. I don't know what the purpose is of you
14 asking these questions.
15 JUDGE KARIBI-WHYTE: If you want to educate
16 the Trial Chamber as to what is happening in the former
17 Yugoslavia, that's a good idea. Then we have some way
18 of knowing what is happening there. I suppose that
19 it's helpful to that extent, but it might not be
20 necessary for our purpose now. We've seen enough.
21 JUDGE JAN: It depends upon the facts of each
22 case, what would constitute a mitigating circumstance
23 and what would not constitute a mitigating
25 MS. RESIDOVIC: Your Honours, I'm not in a
1 position to ask you questions here, but maybe with
2 respect to the testimony of the witness I'm going to
3 call tomorrow, I may ask him something about the
4 cultural circumstances regarding the activities of my
5 client. But if I do not address such issues through
6 the witnesses, tomorrow you may tell me that this is
7 not a significant circumstance. I thought that it
8 would be helpful to you to see what our courts were
9 taking into consideration. So if you do not see this
10 as very useful, I can stop right here and now with this
11 line of questioning.
12 JUDGE JAN: You know what is better, but I
13 was just suggesting.
14 MS. RESIDOVIC: Thank you.
15 Q. Professor, is it true that courts also
16 considered the motivation, the motives of why a certain
17 crime was committed?
18 A. Yes. The motive is a very important
19 circumstance when determining sentence. It is very
20 significant why, that is, what motivation guided the
21 commission of a particular offence. A murder, for
22 instance, it could have been motivated by greed, also
23 by mercy, to spare the victim of further suffering. So
24 the court has to take into account the circumstances,
25 and the sentences in these two particular instances
1 would have been enormously different.
2 Q. Let's see, so hatred, mercy, those would all
3 be different motives, and our courts would accept them
4 as specific circumstances; is that correct?
5 A. Yes, absolutely so.
6 Q. Thank you. Is it true that further
7 circumstances that were being considered by the courts
8 are the circumstances under which certain offences were
9 committed, whether this was during special conditions
10 such as, let's say, a storm, at night, whether the
11 victim contributed to it in any way, so on and so
12 forth. Was that taken into consideration too?
13 A. Yes. All these were circumstances, and they
14 were very important. The courts took into
15 consideration the manner in which an offence was
16 committed, the time, the means, the circumstances, and
17 then the relation of the perpetrator towards the
18 victim, whether this was a small child or a person who
19 was defenceless, whether some relation of trust was
20 violated, let's say as between a child and an adult,
21 and things like that.
22 Q. Was the previous life history also taken into
23 account, his social status, the relation through work
24 to his co-workers, and things like that?
25 A. Yes. The life history was also one of the
1 elements which was taken into account when determining
2 the --
3 JUDGE JAN: Social status was also considered
4 when considering the gravity of an offence. Social
5 status was also considered when considering --
6 MS. RESIDOVIC: Not so much social status,
7 but his involvement in socially useful or desirable
8 activities, his positive traits, so to speak, socially
10 A. Sorry. I have not finished. So these
11 circumstances could have been positive or negative.
12 The court needed to take into account both aspects, and
13 only in that way could it arrive at the proper
15 Q. Did our courts also have an obligation to
16 take into account the personal circumstances of the
17 individual, his family circumstances and so on?
18 A. Yes. That was also an obligation of the
19 court. It was very important what his family situation
20 was, whether he was the breadwinner for the family,
21 then what the health situation was in the family, the
22 economic situation, whether they were permanently
23 employed or not, and the general social situation.
24 Q. Did our courts also determine, in passing a
25 sentence, the conduct of this individual after the
1 commission of the crime, remorse or an effort to
2 alleviate the consequences and his general conduct
3 before and during the legal proceedings?
4 A. Yes. Those were also circumstances which the
5 courts had to take into account, that is, his behaviour
6 after the committed crime, his preparedness to plead
7 guilty, to feel remorse, to alleviate the consequences
8 of the committed act. A lack of remorse was considered
9 as a very negative factor.
10 Q. Very well. Finally, were there also other
11 circumstances taken into account, so his health, his
12 industriousness, his social behaviour, were all of
13 these things taken, generally, into account?
14 A. Yes. The court had an obligation to take
15 everything in, all these circumstances, which would
16 point to a particular personality of the perpetrator of
17 a crime.
18 Q. Related to this, I only have one addition
19 question, Professor. If all these or some of these
20 circumstances which the court had to take into
21 consideration to give a punishment of 6, 8, 14 years,
22 if all these circumstances were so numerous and so
23 significant, is it true that the court here had the
24 authority to prescribe a sentence that was lower than
25 the sentence prescribed in the law?
1 A. Yes, that is correct. The federal criminal
2 law of Yugoslavia, in Article 42, provided this
3 particular basis for mitigation of sentence. It
4 existed in cases when, in a specific case, the court
5 determined that there are particularly mitigating
6 circumstances which pointed to the fact that even with
7 the mitigated punishment, the right punishment can be
8 attained. So it could give a sentence which would be
9 lower than the one provided by law. That would mean
10 that if the minimum sentence was 5 years, it could have
11 been reduced to as little as 1 year. This would be
12 still in accordance with the law.
13 Q. I have finished with the issues relating to
14 the determination of sentence in our national courts.
15 I have only three very brief questions for you,
17 JUDGE JAN: Excuse me. Have you got a copy
18 of Article 42 to which the witness is referring, that
19 where a sentence -- provided by the law can be
21 MS. RESIDOVIC: Your Honour, we have made
22 that provision available to you, together with our
23 submission on the sentence. So this is annexed to my
24 brief which concerns the accused Delalic. I mean, I
25 have not prepared this particular provision. I don't
1 have it here, but I can surely make a copy for you
2 during the break.
3 MS. McHENRY: If I look at it correctly, what
4 Mr. Moran submitted earlier today has, on page 4,
5 Article 42.
6 MS. RESIDOVIC: The limits of mitigation of
7 sentence is in Article 43.
8 Q. Therefore, Professor, as I said, there are
9 three more questions that I would like to ask you. Is
10 it true, Professor, that before our courts, we have one
11 unified, one integral proceedings, including the
12 calling of evidence and also a sentencing hearing.
13 This is all part of one and the single process?
14 A. Yes, that is correct.
15 Q. Is it true to say, Professor, that if the
16 court, if the Chamber, that is, in charge of the
17 proceedings rejects certain evidence to one of the
18 parties to the proceedings, especially if that
19 rejection is confirmed by a second instance court, that
20 particular evidence would be considered inadmissible
21 before our courts. And it cannot be used as a basis
22 for verdict or sentence?
23 A. Yes, that is correct.
24 Q. Professor, what would happen if such a thing
25 should occur, if a verdict is based on a piece of
1 evidence that was rejected or proclaimed as
2 inadmissible, either by the first instance or the
3 second instance court?
4 A. That verdict would be quashed.
5 MS. RESIDOVIC: Thank you very much,
6 Professor. This includes my examination of the
7 witness. Thank you, Your Honours.
8 JUDGE KARIBI-WHYTE: Thank you very much.
9 MR. MORRISON: Please, Your Honours, I have a
10 number of questions, but short ones on behalf of the
11 defendant, Mr. Mucic.
12 Cross-examined by Mr. Morrison:
13 Q. Professor, can I refer you, please, to
14 Article 36, the homicide provisions? In Article 36, it
15 appears that we have acts of commission, that is,
16 active acts rather than acts of omission. I appreciate
17 I'm reading it in translation, but each of the
18 instances set out in Article 36 appears to relate to
19 acts of commission, that is, active acts by the
20 accused. Is the translation accurate in that sense?
21 A. Article 36 of the Criminal Code of the
22 Republic of Bosnia-Herzegovina, in paragraph 1, a
23 so-called simple murder is provided for in the first
24 paragraph, with a minimum sentence of 5 years. It is a
25 very short wording. In our language, there are only
1 four words in this particular part of the text, and
2 they are equivalent to the English words "Whosoever
3 deprives another of his life." The law does not state
4 manners in which this can be committed, in which a
5 person can be killed, although when it comes to
6 homicide, we are, of course, talking about active acts,
7 about commissions. There is a series of acts that can
8 fall into that category, like opening of fire and
9 similar acts.
10 Q. Thank you. Well, we can read the text of
11 Article 36, and we can see how that reads in English.
12 I assume, for the moment, that the translation is
13 accurate. The reason I ask the question is if we
14 compare it to Article 38, it is plain that the law of
15 Bosnia and Herzegovina contemplates negligible
16 homicide, that is a culpable omission?
17 A. It is a big difference, of course. The basic
18 type of murder provided for in Article 36, paragraph 1,
19 for that particular kind of murder, the sentence that
20 is prescribed is the minimum of 5 years, and the type,
21 the model of responsibility, is the one that requires
22 the existence of premeditation or mens rea.
23 In the second case, in the case of Article
24 38, we are dealing with a so-called negligent homicide,
25 and according to the Yugoslav criminal legislation,
1 criminal responsibility was provided for negligent
2 homicide only when this was expressly stated, expressly
3 provided for, in the relevant law. In view of the type
4 of criminal responsibility, because there are less
5 severe types of criminal responsibility than the
6 premeditation, the penalty that was provided for was
7 between 6 months and 5 years. So you can see the
9 Q. Thank you. You've actually answered my next
10 question before I asked it which is encouraging. So it
11 would be a fair submission to say that in the case of a
12 finding of an act of omission, the law in Bosnia,
13 certainly according to the distinctions between Article
14 38 and 36, provides for less serious penalties in the
15 cases of omission than commission; is that a fair, if
16 simplified comment?
17 A. Yes. You can say that.
18 Q. Thank you. The reason I raise that point is
19 that the indictment in this case is put in the
20 alternative. The defendants are charged with acts of
21 -- effectively acts or omissions, so it would be
22 within the jurisdiction of the learned Judges to
23 convict on an act of omission, and the obvious point
24 I'm making is that, if we take into account the law of
25 Bosnia-Herzegovina, that provides a basis for a lesser
1 sentence. I think you've already agreed with that.
2 Q. Please, may I turn to Article 33, the purpose
3 of punishment. Under Article 33(1), dealing with the
4 general purpose of criminal sanctions, in translation,
5 one says this: "Preventing a perpetrator to commit
6 crimes and his or her re-education." Now, I hope I'm
7 not going into too fine a detail, but it is not plain
8 from the translation whether the word "and" is
9 conjunctive or disjunctive. I hope I'm not making
10 difficulties for the translator.
11 A. In Article 33, paragraph 1, the provision
12 that is contained therein uses a conjunctive, that is,
13 an "e" ending. The possibility of re-education is
14 included in this particular provision, whereas, the two
15 other paragraphs emphasise the special type of
16 prevention when it comes to penalties. In the Yugoslav
17 criminal legislation, there were other measures which
18 had that particular role, to prevent crimes. There
19 were eight possible security measures that were
20 provided for under the Yugoslav criminal legislation.
21 These measures relate only to the sentence itself, and
22 this is something that was mentioned this morning.
23 Q. Thank you for -- I thought it was
24 conjunctive, because I'm going to be making a
25 submission to the learned Judges, and I didn't want to
1 make it on a false basis. Thank you for that. Another
2 submission which will be made on behalf of Mr. Mucic is
3 this. Is it fair to say that from the totality of the
4 evidence you have given, that the judges, when applying
5 the law, in Bosnia-Herzegovina, have an extraordinarily
6 wide discretion, even when there are statutory
8 A. Yes. This goes to the principle of the
9 judicial individualisation of sentence, not only
10 punishment, but other penalties as well, release on
11 pardon, security measures, and similar types of
12 penalties. The courts did have very wide discretionary
13 powers with the objective of making the best possible
14 choice when it comes to pronouncing the specific
15 criminal penalty.
16 Q. I hope I'm not trespassing upon the learned
17 Judges's patience, but I think the next question I ask
18 is going to be more of academic than practical
19 interest, but it is this: We see provisions for
20 imprisonment and financial penalties. Are there also
21 within the code, provisions for, what in England would
22 be called community penalties, such as probation or
23 doing free work for the community?
24 A. Your question is rather topical because of
25 the new legislation that is being introduced in the
1 area of the former Yugoslav countries. According to
2 some theoretical approaches and influences from the
3 west, numerous other types of criminal sanctions have
4 been introduced. If we look at the particular
5 situation in this case, for this particular case,
6 previously, only three types of penalties were provided
7 for, death penalty, imprisonment, and a fine, a
8 financial penalty.
9 It is quite clear that when it comes to
10 imprisonment, this type of penalty, the convicts were
11 required to work, of course, within the parameters of
12 their psychological and physical abilities, because the
13 work also had an educational function and some type of
14 rehabilitational function. This was supposed to
15 prepare the convict for normal life after the prison.
16 If he had been convicted of theft, for example, he
17 needed to be prepared for some other type of work after
18 serving his prison sentence. Provisions were made for
19 such individuals to complete some kind of trade,
20 vocation, and so on.
21 Q. Thank you. Under Article 142, and this is
22 just an example, because I think the word appears in
23 other articles, when Her Honour Judge Odio-Benito
24 raised that Article, it struck me, again, that it may
25 be something that requires interpretation. There is a
1 provision of 5 years strict imprisonment as a statutory
2 minimum. Can you assist us? Does this strict
3 imprisonment, as one might expect, to the regime of
4 imprisonment, or is there another interpretation?
5 A. Up until 1976, in the former Yugoslavia,
6 there were two types of prison sentences. The first
7 one was a simple prison sentence and a strict
8 imprisonment. A simple prison sentence could be
9 imposed ranging from 3 days up to 3 years. Strict
10 imprisonment ranged from 5 years to 15 years in
11 prison. However, after the application of the new
12 criminal legislation in the former Yugoslavia, the 1st
13 of July, 1977, a unification of prison sentences has
14 been made. Since that time, we had only one type of
15 prison sentence, from 5 to 15 years in prison.
16 So the same regime of prison sentence applied
17 to a convict who received a 3-year sentence and a
18 convict who received a 15-year prison sentence. The
19 regimes of correctional facilities were the same.
20 After a certain number of years, they were entitled to
21 some home leave. At the beginning, this type of leave
22 was done within the correctional institution, and after
23 a certain period of time, after it was established that
24 the convict could be trusted, that after it was made
25 sure that he would not leave the country, such a
1 convict could be released for home leave, and he could
2 spend some time off with his or her family, try to help
3 the family, for example, during the summer, if they
4 were doing some agricultural work or building a house,
5 for example, of course, provided that he returns on
6 time to serve the remainder of his sentence. The
7 regime was the same. There was no difference in
8 respect of the length of prison sentence.
9 What is perhaps -- the regime of a prison
10 sentence always depended on the psychological and
11 mental state of the convict. There were convicts who
12 could not do any kind of work within the correctional
13 facility. However, there were convicts who were able
14 to take care of the garden or the yard of the
15 correctional facility.
16 Q. Thank you. So the reality is that the word
17 "strict" relates to the number of years, rather than
18 the regime?
19 A. Yes, that is correct.
20 Q. Lastly this: You've referred to correctional
21 facilities. Can you assist us with this, please, if
22 it's not within your knowledge, then please say so.
23 But going back to 1992, who were officially responsible
24 for running prisons in Bosnia-Herzegovina? I mean, for
25 example, in England and Wales, we have a government
1 service and some private prisons. What was the
2 official body responsible for running prisons in 1992?
3 MS. McHENRY: Your Honour, I fail to see how
4 this is relevant to the question of the appropriate
6 MR. MORRISON: It goes to mitigation, and
7 I'll explain how, because it's a perfectly valid
8 objection, if I may say so, if I don't explain it. The
9 explanation is going to be this: That in part of the
10 mitigation, on the assumption that Mr. Mucic is
11 convicted of one or more of the counts on the
12 indictment, one of the points that will go to
13 mitigation is that he was not a trained prison guard or
14 prison officer. If there was, in fact, no official
15 body, that would not be a good point to make in
16 mitigation. If there was an official body that had
17 oversee of the prison service, then it is a better
18 point, which is why I make it.
19 MS. McHENRY: My objection still stands.
20 JUDGE KARIBI-WHYTE: I don't think it makes
21 any difference, it's still evidence in the
23 MR. MORRISON: Yes.
24 JUDGE KARIBI-WHYTE: If you think it's
25 necessary for us to take it into account, we'll do so.
1 MR. MORRISON: Thank you, Your Honour.
2 Before you need to take it into account, the witness
3 needs to be able to answer the question.
4 JUDGE KARIBI-WHYTE: Yes. That's why I say
5 it is still evidence in the proceedings.
6 MR. MORRISON:
7 Q. Can you assist us, please, Dr. Tomic?
8 A. Yes, of course. The serving of a sentence in
9 the former Yugoslavia fell under the competence of
10 three types of facilities. There were facilities of a
11 so-called closed type, semi-closed, and an open type.
12 There were also prisons for juvenile delinquents, but
13 they weren't really prisons but some kind of
14 educational facilities or homes. This all fell under
15 the jurisdiction of the ministry of justice of a
16 particular republic, so this was at the level of the
18 The enforcement of criminal sanctions, in
19 general, was governed by a special law which was called
20 the law on the enforcement of criminal sanctions and
21 penalties relating to misdemeanours, and I hope that
22 misdemeanour will be translated correctly. That area
23 would cover, for example, traffic offences. The regime
24 at these facilities varied. The most variable regime,
25 of course, was the one that was in force in the
1 so-called open facilities, facilities of open type.
2 The convicts would come to work in the morning. They
3 would have to do the work during the day, and in the
4 afternoon, they could go home and they could sleep at
5 home. In the morning, they would have to show up at
6 work again. This was a so-called open type of
8 As far as semi-open facilities are concerned,
9 the regime was somewhat more severe and less
10 privileged. However, these convicts could also leave
11 the facility and could also do some work outside the
12 correctional facility.
13 When it comes to the so-called closed
14 correctional facilities, of a closed type, depending,
15 of course, on the type of the criminal offence and the
16 severity of the punishment and the character and
17 personal traits of the convict, classification was made
18 of convicts, and they were divided in groups according
19 to particular requirements pertaining to that
20 category. They did not have the same regime.
21 There was a category of convicts who could
22 not leave the correctional facility at all, who were
23 not allowed to go out. Then came the category of those
24 who were sometimes, occasionally, allowed to leave the
25 correctional facility under the escort of prison
1 guards, of course, to take care of any work they needed
2 to conduct.
3 There was the third category of convicts,
4 those who were allowed to leave the correctional
5 facility without the escort of prison guards. The
6 administration of the correctional facility in question
7 trusted these convicts, and the convicts were very
8 seldom abused of their trust.
9 MR. MORRISON: Thank you very much, Professor
11 JUDGE KARIBI-WHYTE: Any further questions?
12 MS. McMURREY: Yes, Your Honours, if I might
13 be allowed just a question from here, I'll be brief.
14 JUDGE KARIBI-WHYTE: If you so wish.
15 MS. McMURREY: Thank you.
16 Cross-examined by Ms. McMurrey:
17 Q. Although I believe that my learned colleague,
18 Madam Residovic, has touched on this briefly, I would
19 just like to specifically ask under Article 41, when it
20 says that the circumstances to be taken into
21 consideration is the level of criminal responsibility,
22 that relates to diminished mental responsibility,
23 doesn't it?
24 A. Yes. It relates to mental responsibility and
25 the culpability as well. Do you wish me to explain
1 this any further?
2 When the law mentions as a potential
3 circumstance, mitigating or aggravating the level of
4 criminal responsibility, this meant that two things
5 basically had to be taken into account. Under the
6 Yugoslav criminal law, criminal responsibility
7 consisted of mental responsibility and culpability.
8 Both these elements could vary in degrees, in levels.
9 So, leave aside the complete lack of responsibility,
10 which automatically excluded criminal responsibility as
11 such, what was taken into account while assessing the
12 criminal responsibility was the following: The full
13 mental responsibility, a significantly diminished
14 mental responsibility, and one more category, which is
15 not a legal category, properly speaking, but it has
16 developed through the practice, and this is the case of
17 diminished mental responsibility. So there is a very
18 important difference between diminished mental
19 responsibility and seriously diminished mental
21 The seriously diminished mental
22 responsibility represented a special type of legal
23 basis for mitigation of sentence, whereas a simple
24 diminished mental responsibility could be taken into
25 account as a mitigating circumstance while assessing
1 the appropriate sentence, again, within the parameters
2 of the prescribed penalty.
3 In the first case, the courts would go under,
4 below, the parameters of the punishment that was
5 provided for that particular offence. In the second
6 case, the court would remain within the parameters,
7 legally-established parameters, for that particular
8 punishment, but there was a possibility to apply a less
9 harsh sentence, again, within the frameworks of
10 punishment, for that particular type of criminal
12 Have I properly understood your question?
13 Second, there is the show of culpability.
14 Under the Yugoslav criminal law, the culpability
15 consisted of two or, rather, four elements. The first
16 type of culpability was a so-called premeditation,
17 which could be direct or indirect. The second type of
18 culpability was negligence which could be conscious or
20 Do you wish me to state legal qualifications
21 of both? I believe that what is important is the fact
22 that they both include intellectual and volitional
23 elements. They take into account both the will of the
24 perpetrator and the intellectual faculties of the
1 Let me give you an example. If you have a
2 perpetrator who, at the time of the commission of the
3 criminal offence, was in full possession of his mental
4 capacities, and if he committed a crime with direct
5 premeditation, the low level of this type of -- there
6 would be a high level of culpability, whereas, a low
7 level of culpability would be for someone who was not
8 fully aware and committed the crime out of negligence.
9 So that would call for a lower level of criminal
11 Q. Thank you very much, Dr. Tomic. When we talk
12 about those two different levels of diminished mental
13 responsibility, one you stated was essentially
14 diminished mental responsibility which would normally
15 take the sentence underneath the statutory minimum, and
16 the second was diminished mental responsibility that
17 would not take it below the minimum, but would place
18 the punishment somewhere close to the minimum; would
19 that be accurate?
20 A. Yes. I can point to the relevant provision.
21 This is Article 12, paragraph 2, which states expressly
22 that the perpetrator can be imposed a less harsh
24 Q. Thank you. I have one more question about
25 diminished mental responsibility. In the courts in the
1 former Yugoslavia, what type of evidence was necessary
2 to persuade the court that there existed diminished
3 mental responsibility of the individual?
4 A. Before the courts of the former Yugoslavia,
5 the issue of mental responsibility was not raised on a
6 regular basis. It was raised only in exceptional
7 circumstances when the circumstances of the case were
8 such as to indicate the perpetrator who was not in full
9 possession of his mental capacity at the time of the
11 In other words, when there were reasonable
12 grounds to suspect the mental responsibility of the
13 perpetrator, in that case, the court would request an
14 expert psychiatric analysis of the perpetrator, and the
15 expert in question would provide his expert opinion,
16 which would usually take a two-month or three-month
17 period of examination, and he would submit his written
18 report to the court, and he would appear before the
19 judges to explain the psychological state of the
20 perpetrator of the time of the commission of the fact.
21 So when it comes to assessing the mental
22 responsibility, the court would always have a recourse
23 to the assistance of a court-sworn expert in the area.
24 I hope this is the case in your country as well.
25 Q. Yes, it is, in different levels of mental
1 responsibility, though. I also would like to ask one
2 more question: As far as the circumstances of
3 mitigating evidence, a young age, age is a
4 consideration of the total circumstances of the
5 individual to be considered as mitigation of
6 punishment, wouldn't it?
7 A. Yes, that is correct. The age could be taken
8 into account while assessing the appropriate sentence.
9 Let me give you an example. If the perpetrator was an
10 elderly person or a person in a poor state of health,
11 and if he was forced to steal because of his personal
12 circumstances, the court would definitely take into
13 account his age and his personal circumstances while
14 assessing the appropriate sentence.
15 MS. McMURREY: I thank you very much.
16 A. That also relates to fraud, for example.
17 Q. And also the young age. If someone was 18 or
18 19 years old, that would be considered as mitigating
19 circumstances also, wouldn't it?
20 A. Yes. One can say that it could be taken as a
21 mitigating circumstance, although for the most severe
22 types of penalties, there were certain limitations.
23 Although the person in question may have been of age,
24 very often the court had to deal with the person who
25 did not have a very rich life experience. So this type
1 of these personality traits, relating to the age, were,
2 of course, taken into account by our courts.
3 Q. Dr. Tomic, since the courts in the former
4 Yugoslavia seem to take in the total circumstances, as
5 Judge Jan has cited, for mitigation of punishment, the
6 court would have considered circumstances of a war and
7 the circumstances all around the events that occurred,
8 wouldn't they?
9 A. The courts were bound to take into account
10 all these circumstances by law, and only in assessing
11 the circumstances in their entirety could the court
12 reach an appropriate verdict. Should the verdict be
13 reached on the basis of only one circumstance, then the
14 second instance court would, in most of the cases,
15 quash the verdict in question. The circumstances,
16 therefore, had to be taken into account in their
17 entirety, and only that could properly function as a
18 legal basis for assessing the appropriate sentence.
19 MS. McMURREY: Thank you very much,
20 Dr. Tomic. I have no further questions, Your Honour.
21 JUDGE KARIBI-WHYTE: Any questions by the
23 MS. McHENRY: Yes, thank you, Your Honour.
24 Cross-examined by Ms. McHenry:
25 Q. Good afternoon, Dr. Goreta. Excuse me. Good
1 afternoon, Dr. Tomic. Sir, with respect to diminished
2 responsibility, you indicated that it was an
3 exceptional defence, so you would be surprised if a
4 forensic expert looked at 25 cases of war crimes and
5 found diminished mental responsibility in all 25,
6 wouldn't you?
7 MS. McMURREY: Your Honour, I'm going to
8 object. Ms. McHenry is misleading this witness. First
9 of all, the expert she's talking about took into
10 account 120 cases, 25 of which he wrote about. I
11 believe she's misleading him as far as the facts of the
12 case are concerned.
13 JUDGE KARIBI-WHYTE: Can you put your
14 question to him again?
15 MS. McHENRY: Yes, and I don't believe it's
16 misleading if you look at the Article, although he
17 later on looked at others, he said that these were 25
18 that he looked at. In all 25, he found diminished
19 mental responsibility.
20 Q. Sir, my question again is, you would be
21 surprised if a forensic expert looked at 25 cases of
22 war crimes and found diminished mental responsibility
23 in all 25, wouldn't you?
24 JUDGE JAN: You can surprise him with so many
25 things. I don't think it's a fair question.
1 MS. McHENRY: Your Honour, if he doesn't
2 think he can answer it, obviously he can tell me that.
3 JUDGE KARIBI-WHYTE: These are all opinions.
4 If he believes that they can be --
5 A. There are no problems. I can answer this
6 question. I wouldn't be surprised at all if he
7 determined diminished responsibility with all 25
8 cases. It could be that all cases that the Doctor was
9 studying, that in all 25 cases, there was heavy
10 intoxication, for instance. Thousands and thousands of
11 people were getting drunk, and in this state, they
12 committed crimes. So why not the 25 that he mentions?
13 MS. McMURREY: Your Honour, I'm going to
14 object, because for clarity, if he's going to form an
15 opinion on the basis of the question Ms. McHenry has
16 asked, he needs to know that it was a hospital where
17 only the most severe cases were referred. So he needs
18 to know that those were exceptional cases that were
19 referred to that hospital ahead of time, not just 25 --
20 JUDGE KARIBI-WHYTE: I think you prefer being
21 the expert in this case. Let him give his answers.
22 That has nothing to do with your own opinion.
23 MS. McHENRY:
24 Q. Sir, let me go on.
25 JUDGE KARIBI-WHYTE: Yes, you can.
1 MS. McHENRY: Thank you.
2 Q. You indicated that in the former Yugoslavia,
3 judges were entitled to consider a broad range of
4 factors, including an accused general conduct before
5 and during the proceedings. In the former Yugoslavia,
6 would efforts to obstruct justice be considered among
7 the totality of the circumstances?
8 JUDGE JAN: Under any circumstance, as an
9 aggravating circumstance, not in the mitigation of
11 MS. McHENRY: Under the totality of
12 circumstances which can include both aggravating and
13 mitigating. Certainly, I would believe it would be
14 aggravating circumstances.
15 Q. Sir, would that be something that could be
17 MS. RESIDOVIC: I'm sorry, but I think that
18 the witness did respond that it was a circumstance that
19 would be considered by the courts, so I don't know why
20 he should repeat it himself.
21 A. I do not know what you have in mind.
22 JUDGE KARIBI-WHYTE: Why wouldn't you allow
23 somebody to put him questions? I don't see how it
24 concerns you. If someone is asking questions, let the
25 questions be put and let us have the answers. They are
1 not answers which belong to you. Please, put your
2 question again.
3 MS. McHENRY:
4 Q. Sir, you would agree with me that efforts to
5 obstruct justice can be considered by a judge in
6 determining the totality of circumstances in the former
8 A. Yes, it could be considered when determining
9 the sentence.
10 Q. Thank you. Sir, you would agree with me
11 that, although it may change in the future, in 1992 and
12 up to the present time, the law of Bosnia-Herzegovina
13 does provide for a death penalty; is that correct?
14 A. I believe at this point the death penalty is
15 still in force, in other words, the law that provides
16 for the death penalty. The new law has been written,
17 but it has not been adopted yet.
18 Q. Now, you were asked by Mrs. Residovic right
19 before, I believe, the lunch break, a question about
20 the maximum term of imprisonment for cases where life
21 imprisonment was provided. Now, I'm a little confused,
22 because I'm correct, aren't I, that in the former
23 Yugoslavia, there were no crimes for which a life
24 sentence was provided; is that correct?
25 A. Such punishment was not provided for in the
1 legislation of the former Yugoslavia. There was death
2 penalty. It was the prison sentence of 15 days to 15
3 years, and then there was also the financial
4 punishment, and then there was a confiscation of
5 property, which was a relic from the past which was
6 abolished. So, no, there was no life sentence.
7 Q. Now, the Tadic judgement, when speaking of the
8 law in the former Yugoslavia, including
9 Bosnia-Herzegovina, said: "Imprisonment as a form of
10 punishment was limited to a term of 15 years or, in
11 cases for which the death penalty was prescribed as an
12 alternative to imprisonment, to a term of 20 years."
13 That's a correct statement, isn't it?
14 A. With respect to offences for which the death
15 penalty and prison sentence were provided, when the
16 death penalty was not provided as the only punishment,
17 the courts had two alternatives from the start. It
18 could determine either a prison sentence which would be
19 either the 5 to 15 years prison term or a death
20 penalty, then 10 years or death penalty, which would
21 mean 10 to 15 years or death penalty.
22 The court had to choose with respect to the
23 specific threat for society and the specific
24 perpetrator whether a prison term, with the limit of 15
25 years was sufficient, or whether it was going to
1 consider the death penalty. And if they -- I'm sorry.
2 I did not finish. If they chose the second
3 alternative, in other words, the death penalty, they
4 still had two possibilities, to either give the death
5 penalty or the prison sentence of 20 years, even though
6 this 20-year term was not provided for in the law but,
7 rather, in the federal legislation.
8 JUDGE KARIBI-WHYTE: When the proposition was
9 put, either you reject it as inaccurate and formulate
10 your own or you now proceed to say what you think the
11 proposition is. The question which counsel put was a
12 straightforward, simple one, asking whether that
13 proposition was right. If it is right, you accept it.
14 If it is not right, you will now tell the Trial Chamber
15 what your own proposition is, with respect to those
16 provisions of your ... because when you go on and on,
17 everybody gets lost in the explanation.
18 MS. McHENRY:
19 Q. Sir, was my statement correct? If you need
20 me to repeat it, tell me, please.
21 JUDGE JAN: I think the law is very clear.
22 MS. McHENRY: Your Honour, if that's the
23 case, then I think this expert can easily say, "Yes,
24 you are correct."
25 Q. Was this statement correct, sir?
1 A. Excuse me, but I answered very accurately.
2 If there was a 5-year term or a death penalty was
3 provided for and if it was --
4 Q. Please, I don't want you to explain again.
5 Are you able to tell me with a "yes" or "no" whether or
6 not this is a correct statement. If you need me to
7 repeat it, please tell me.
8 A. Would you please repeat it?
9 Q. Imprisonment as a form of punishment was
10 limited to a term of 15 years or, in cases for which
11 the death penalty was prescribed as an alternative to
12 imprisonment, to a term of 20 years.
13 A. Yes, that is correct.
14 Q. Thank you. Now, sir, you mention the law
15 concerning infliction of bodily harm, and I'm not going
16 to ask you to explain anything about it, and we may,
17 hopefully, get the copy tomorrow. But can you just
18 tell me where are those provisions in the law? Can you
19 just cite me to an article? I'm not asking you to
20 explain them.
21 A. You mean serious bodily injures.
22 Q. Yes.
23 A. They were in the republican law.
24 Q. In the Republic of Bosnia-Herzegovina can you
25 just, please, tell me the provision?
1 A. Article 42 of the republican law. It refers
2 to the serious bodily injury. It is Article 42 of the
3 Criminal Code of the Republic of Bosnia-Herzegovina.
4 Q. Thank you. Now, sir, during your testimony,
5 there was some discussion that the death penalty was to
6 be given only in cases of serious or hard cases,
7 although everyone recognises that every case has to be
8 evaluated individually, it is the case that the
9 legislature of Bosnia-Herzegovina, in Article 36, set
10 out what it considered to be serious or aggravating or
11 grave cases of homicide; is that correct?
12 JUDGE JAN: The words are extremely hard
13 cases, not only hard cases, but extremely hard cases,
14 Article 27(2).
15 A. May I begin?
16 JUDGE JAN: Death penalty shall be pronounced
17 only for extremely hard cases, not only hard cases, but
18 extremely hard cases.
19 MS. McHENRY:
20 Q. Yes, sir.
21 A. With your permission, please. In Article 37
22 of the Federal Criminal Code which regulates issues on
23 death penalty, in paragraph 2, it states: "Death
24 penalty shall be pronounced only for the extremely hard
25 cases of serious crimes for which it is prescribed
1 according to law." So the exception is the most
2 serious of the serious crimes for which it was
3 prescribed. These always needed to be exceptionally
4 serious cases. In the republican law, in Article 36,
5 several possibilities are quoted, and I mentioned
6 several today. I don't think there is a need to repeat
7 them now.
8 Q. Well, sir, I wasn't suggesting that the death
9 penalty would be applied in every single of those
10 cases, but I'm suggesting that the law of
11 Bosnia-Herzegovina indicated that it viewed as serious
12 or aggravating cases of homicide, those where someone
13 has acted in a cruel manner, or in a wantonly
14 aggressive manner, or out of merciless revenge, or
15 other low motives, or where someone is guarding a
16 person deprived of their freedom, or where two or more
17 homicides have been committed. Is that correct, that
18 these were viewed as serious or aggravating cases of
20 A. In Article 36, paragraph 2, there are several
21 alternatives offered. These are all qualified or
22 aggravating forms of murder, and for them, the
23 mandatory punishment is different.
24 Q. For those cases, there is a mandatory minimum
25 sentence of 10 years; is that correct?
1 A. Correct.
2 Q. Thank you. Now, you talked about one war
3 crime case in Bosnia-Herzegovina. I'm correct that
4 when the SFRY existed, war crimes were usually
5 prosecuted in federal courts, rather than the republic
6 courts; is that correct?
7 A. I'm sorry, but that is not correct. Your
8 information is incorrect.
9 Q. Okay. Thank you. Now, again going to how a
10 judge should determine what penalty should be applied,
11 we've been given the translation of the SFRY code,
12 Articles 41, 42, 43, 44, 45, 46, 48, 49, and 50. Do
13 you know why we haven't been given translations of
14 Article 47?
15 A. I don't know.
16 Q. Am I correct, sir, that Article --
17 A. I could say --
18 THE INTERPRETER: Microphone to the witness,
20 A. Is everything all right now? This is a
21 provision on a particularly serious case which was
22 deleted from the law on the 28th of June, 1990. I
23 don't know if this is a provision which was called in
24 the Yugoslav legal practice, a particularly serious
25 case. Just as the 20-year term was done away with, so
1 was this particular provision done away with. I could
2 explain to you in an example what such a case was.
3 MS. McHENRY:
4 Q. No. Just let me clarify. It's your
5 testimony, sir, that Article 47 was repealed in 1990.
6 Do I understand you correctly? So after 1990, Article
7 47 no longer existed?
8 A. Yes. As of 28 June, 1990.
9 Q. Thank you.
10 A. I can show you the text of the law of 1990,
11 and it says Article 47, a particularly serious case,
12 and it says "deleted." It means that this has been
13 done away with.
14 JUDGE JAN: What is this article about?
15 MS. McHENRY: The article is about
16 especially, serious cases and what should happen. If
17 the Professor has told me that it has been repealed, I
18 don't have any further questions. My question was,
19 "Why wasn't that included"?
20 Q. Sir, one reason, among others, that a Chamber
21 before this Tribunal, in the first Erdemovic judgement,
22 found that the practice in the former Yugoslavia
23 regarding sentences was instructive and could serve as
24 a guide but was not binding on this Tribunal --
25 MR. MORAN: Your Honour, let me object to
1 this. The Appeals Chamber vacated that judgement. That
2 judgement is just ink on paper. It has no binding
3 authority on anything.
4 JUDGE KARIBI-WHYTE: She is merely just
5 seeking his opinion. I see nothing wrong with it.
6 MS. McHENRY:
7 Q. Thank you, sir. Let me continue. One
8 reason, among others, that a Chamber found that the
9 practice of former Yugoslavia regarding sentences was
10 instructive and could serve as a guide but was not
11 binding was the practical and legal difficulties in
12 establishing just what the practice in former
13 Yugoslavia was. I'd like to ask you a few questions
14 about the basis for your opinions.
15 Let me ask you specifically, are there books
16 published with the judicial decisions in them such that
17 one can know the facts of the case and the sentence
18 that has all the judicial decisions in the former
20 A. In the former Yugoslavia, as in other
21 countries, there was a tradition to have the legal
22 proceedings published, and at the federal level, there
23 was a monthly publication which was the court practice
24 of the highest court, the federal and republican
25 courts. This was very important because the court
1 practice also helped create laws. It pointed to the
2 good sides and bad sides. So, yes, these things did
4 Q. They exist for both the federal and the
5 Republic of Bosnia-Herzegovina?
6 A. Yes, at the level of Republic of
7 Bosnia-Herzegovina, there were bulletins, and they were
8 issued on a regular basis, and whatever was interesting
9 in terms of practice would appear in these bulletins.
10 So the legal experts were able to follow it and then
11 make the necessary adjustments and corrections. So,
12 this led to a better implementation of these laws.
13 Q. Then let me then go forward and ask you, and
14 this is just an example, since this Tribunal doesn't
15 have the death penalty, in any event. If other experts
16 have written that the death penalty was imposed 17
17 times in the SFRY, in the period 1982 to 1990, for
18 crimes of murder, robbery leading to a loss of life and
19 war crimes, would you be able to disagree or agree with
20 that statement or you can't say?
21 A. I did not understand you. Did you say that
22 this sentence was pronounced or that it was executed,
23 the number of examples you just quoted?
24 Q. Sir. The word was "imposed," and I can't
25 tell you whether or not that means executed or
1 pronounced. I can only tell you what another expert
2 said, and my question is, would you agree with that
4 MR. MORAN: Your Honour, I object to that
5 question because --
6 A. I do not know where the information --
7 MR. MORAN: He doesn't know what it means.
8 How can he agree or disagree?
9 JUDGE KARIBI-WHYTE: I think it might be fair
10 to point out the particular expert who said so and
11 where it was so said, and let him deal with that.
12 MS. McHENRY: Certainly.
13 Q. Sir, the experts were Ivan Jankovic and
14 Vladan Vasilijevic, and to answer the question, you can
15 say that if it's pronounced, I would agree with it, if
16 it means, actually, implemented, I would disagree with
18 A. I would not agree with either, even though I
19 know Mr. Vladan Vasilijevic.
20 Q. My pronunciation is often a problem. If one
21 expert says the death penalty was pronounced 17 times
22 and another expert says it wasn't, could one go back to
23 the monthly bulletins and figure this out, or one
24 wouldn't know because the bulletins have certain cases
25 and not others?
1 A. I know the death penalty was imposed very
2 rarely and was implemented extremely rarely. I don't
3 know where Mr. Vasilijevic found this information of 17
4 instances. I'm not sure about that. I know,
5 specifically, that it was imposed and it was
6 implemented in two cases in Bosnia-Herzegovina some 20
7 years ago, that it was both pronounced and carried
8 out. It was in a case of a murder of a 12-year-old
9 child, and it was a case of merciless revenge case,
10 something you mentioned in reference to Article 36.
11 JUDGE KARIBI-WHYTE: If you have the
12 published work on which this statement was taken, you
13 should mention it to him so that he will complete his
15 MS. McHENRY: Your Honour, I can find that,
16 but as I understood the witness, he is not in a
17 position to say either yes or no. He says, I'm not
19 Q. Is that correct, sir?
20 JUDGE KARIBI-WHYTE: Because you have not
21 been quite forthcoming of the details as to how you
22 came to your information, because you should tell him
23 exactly what your information was. Because if you say
24 a general article, then mention the article.
25 MS. McHENRY:
1 Q. Well, sir, if I understood you correctly?
2 JUDGE JAN: This was over a period of 10
4 MS. McHENRY: The report said, Your Honour.
5 I'm not vouching for its accuracy.
6 JUDGE JAN: In most of the cases, it was just
7 not imposed. 17 cases in 8 years.
8 MS. McHENRY: Yes, Your Honour, I believe
9 that --
10 JUDGE JAN: Maybe it supports his statement
11 that it was merely imposed. Can you plead that only 17
12 murders in 8 years --
13 MS. McHENRY: I'm sorry. The expert report
14 doesn't suggest that there were only 17 murders in
15 Bosnia or the SFRY. It suggests that the death penalty
16 was imposed 17 times, and I'm not vouching for its
17 accuracy, especially since this Tribunal doesn't even
18 have a death penalty. I'm just trying to figure out
19 how it is that one determines what the sentencing
20 practices were.
21 JUDGE JAN: He said it was rarely imposed,
22 and he remembers one or two cases. I'm just wondering
23 17 in 8 years, less than half every year, which is
24 rare, isn't it?
25 MS. McHENRY: It's certainly not common, Your
1 Honour. I don't disagree with that. It's an article
2 entitled, "Sentencing Policies and Practices in the
3 former Yugoslavia, 1994."
4 Q. Let me go forward, sir. You would also -- I
5 assume you would --
6 JUDGE KARIBI-WHYTE: I think we will rise and
7 come back at 4.30.
8 MR. MORAN: There's a slight technical
9 thing. The professor has to run an errand having to do
10 with the cashier's office between 4.00 and 4.30, and
11 sometimes they open a little late, so he may be a
12 couple of minutes late in getting back. Just so the
13 Court knows that it is a thing the Victims and
14 Witnesses set up for him.
15 JUDGE KARIBI-WHYTE: I think we will oblige
16 him. We will come back at 4.30.
17 --- Recess taken at 4.02 p.m.
18 --- On resuming at 4.35 p.m.
19 JUDGE KARIBI-WHYTE: You may continue,
21 MS. McHENRY: Thank you.
22 Q. Sir, is it correct that in March of 1993, a
23 Mr. Damjanovic was sentenced to death, although it was
24 not carried out --
25 MR. MORAN: Objection, Your Honour. That's
1 irrelevant. It's beyond the time frame that is
2 relevant to this case.
3 JUDGE KARIBI-WHYTE: I don't know what harm
4 you suffer from with this irrelevancy. It doesn't
5 affect you, even if it was answered.
6 MS. McHENRY: Let me continue my question.
7 Q. Sir, it's correct, isn't it, that in March
8 1993, a Mr. Damjanovic was sentenced to death for seven
9 murders and two rapes he had committed previously,
10 although the sentence wasn't carried out?
11 A. I was present at the trial in Sarajevo. I
12 did not follow it to the end, and I don't know whether
13 it is correct that there were seven murders exactly. I
14 couldn't confirm that. In any case, it was a case of
15 multiple murder and rapes. Damjanovic was not acting
16 alone. It was a group of people including Damjanovic
17 and a woman who was his accessory. I do not remember
18 technical details of the trial, though.
19 Q. It is true that he was sentenced to death,
20 although the sentence has not been carried out; is that
22 A. I believe that is correct.
23 Q. Now, sir, is it your testimony that --
24 A. If I may, if you will allow me to add
25 something, I think that that penalty, that sentence,
1 was substituted for a 20-year prison sentence.
2 Q. Thank you. Now, sir, is it your testimony
3 that under Article 38(2), for cases where a person
4 could get the death penalty, a judge cannot just
5 pronounce a 20-year sentence, that the judge has to
6 pronounce a death sentence and then commute it to 20
7 years; is that your testimony?
8 A. For criminal acts carrying the death penalty,
9 the court could also pronounce a 20-year sentence.
10 This is the relevant text. Therefore, it cannot
11 pronounce it as a substitute. It can also pronounce it
12 as a sentence, that is, the 20-year prison sentence. I
13 think the text is quite clear and precise.
14 Q. The judge doesn't have to first pronounce a
15 death sentence; correct? The judge can just pronounce
16 a 20-year sentence; is that correct?
17 A. Yes. This follows from the relevant
19 Q. Thank you. Now, going to 38(3), is it your
20 testimony that that section has been repealed?
21 A. I don't think you have understood me
22 correctly. I said that this provision has remained,
23 and it was in force during the relevant times of this
24 case. However, the same provision was also contained
25 in the law of 1976, and the explanation is the
1 following: The federal legislator left in this
2 provision, which is of a general character, a
3 possibility for incorporating in the separate sections
4 of the relevant law or republic laws for the punishment
5 of a 20-year prison sentence to be also contained.
6 So this possibility, this provision, from '76
7 was used. Later on, that particular provision applied
8 for eight particular crimes at the level of the
9 federation and at the level of the republics.
10 However, on the 28th of June, 1990, within
11 the amendments of the last reform of the criminal
12 legislation of the country that no longer exists, this
13 20-year prison sentence was deleted. So there is not a
14 single criminal offence, criminal act, which carries,
15 expressly, the 20-year prison sentence. This is
16 something that you will not find anywhere in the
17 relevant and currently valid legal texts.
18 The Republic of Bosnia-Herzegovina, in July
19 1991, made a reform or, rather, introduced a novelty in
20 its Criminal Code. It followed the principle of the
21 federal legislator, and the Republic of
22 Bosnia-Herzegovina also deleted provisions which were
23 connected with a particularly serious crime, a
24 particularly aggravated criminal offence.
25 Therefore, in these two texts that were valid
1 in the relevant times, there are no 20-year prison
2 sentences provided. This text covers more than 250
3 types of criminal offences.
4 Q. Do I understand you to say, sir, that 38(3)
5 doesn't, in fact, mean what its plain language says it
6 means, which is that a 20-year sentence can be
7 pronounced for severe forms of crimes where there is
8 intentional fault allowing a prison term of up to 15
10 MR. MORAN: Objection, Your Honour. Asked
11 and answered.
12 MS. RESIDOVIC: I apologise for
13 interrupting. The translation may be misleading. The
14 translation that I received, the translation of this
15 article, was that it can be pronounced. However, the
16 text of the law is the following: For the severe forms
17 of such a crime, a sentence can be prescribed, and a
18 sentence can be prescribed only by a legislative body.
19 So if there has been a mistake in translation, then no
20 wonder we cannot understand each other.
21 MS. McHENRY: Thank you for your assistance,
22 Ms. Residovic. I believe that does clarify the
24 A. Could I kindly ask the interpreter to speak
25 up a little bit?
1 Q. Sir, if I understood you correctly, you said
2 before, during your direct examination, that in the
3 former Yugoslavia, one of the goals of sentencing did
4 not include making an example of someone. Did you mean
5 to say that?
6 A. I'm not quite sure I understand your
7 question. Could you please repeat it?
8 Q. At least as it was interpreted to me, you
9 were asked a question by Mr. Moran which said that in
10 the SFRY, the former Yugoslavia, that sentences were
11 not intended to make an example of someone?
12 A. The question obviously relates to the purpose
13 of punishment, to the objective of punishment. The
14 interpretation I received was the intention, the intent
15 of punishment. I presume that what you have in mind is
16 the objective, that is, what is to be achieved with
17 criminal sanctions, criminal penalties, to a criminally
18 responsible perpetrator of a criminal act.
19 Let me repeat the relevant provision, that
20 is, the provision of Article 5 of the former federal
21 criminal law, that is, the Yugoslav federal criminal
22 law, paragraph 2, and I kindly ask the interpreters to
23 be as precise as possible. Paragraph 2 reads as
24 follows: "The general purpose of prescribing and
25 pronouncing criminal sanctions is the prevention of
1 socially endangering activities," that is, activities
2 or actions which represent a danger to society, "and
3 which violate or bring into jeopardy values of the
4 society." So this is the general goal, general
5 objective, of pronouncing criminal sanctions in
7 However, the legislator has also stated the
8 specific purposes of specific punishments, and I gave
9 an example for Article 33 of the former federal
10 criminal law. This provision is of an instructive
11 nature and it states within the general objective of
12 criminal punishment, the legislator states the
13 following: "1) To prevent the perpetrator from
14 committing a crime again and his moral re-education."
15 This first point would fall under the category of
17 Second is the educational role, that is, the
18 model to be served on others. Number 3 is to
19 strengthen morale, and you can see that this is
20 something that is rather ideological or characteristic
21 of the former system. This would fall into the
22 category of general objectives, general prevention.
23 I have also mentioned the concept of
24 retribution which was not incorporated as such. Of
25 course, objections can be raised to this attitude of
1 mine. If you saw the number of criminal offences which
2 carried that penalty, you could justifiably claim that
3 I am wrong, but it is true that, in practice, that
4 penalty was rarely pronounced and even more rarely
6 As I said, I know only of one or maybe two
7 cases having to do with a father who came from Germany
8 from where he worked and killed his wife and six
9 children, but that death penalty was not imposed
10 because he hung himself while in detention.
11 That death penalty was executed, as far as I
12 know, in two cases only. It was executed in the case
13 of one man and one woman who committed a merciless
14 revenge murder. This is a so-called qualified type of
15 murder which carries a death penalty.
16 Q. It's the case that sentences of 20 years were
17 imposed more frequently than the death penalty; is that
19 A. You cannot say that, because the 20-year
20 prison term in respect of criminal acts for which it
21 was prescribed at the level of the republic was never
22 actually pronounced. That's why it was abolished
23 because it was seen as redundant. That's why, after
24 1976, it was abolished.
25 This particular type of sentence, the 20-year
1 prison sentence, functioned only as a substitute for
2 the death penalty, and it was a rare occurrence,
3 because death penalties were not very often pronounced.
4 Q. I'm sorry, sir. Is it your testimony that,
5 as far as you can remember, there has not been more
6 than one or two cases of 20-year sentences in the
7 former Yugoslavia?
8 JUDGE KARIBI-WHYTE: He has been saying
9 that. He has been saying that. He repeated that at
10 least three times.
11 A. As far as I can remember, yes.
12 MS. RESIDOVIC: I apologise. There has been
13 a mistake either in the transcript or I may have
14 misheard. The witness spoke about two cases of the
15 execution of the death penalties, and here I see two
16 cases of 20-year prison sentences. These are two
17 different things. I don't know whether this is a
18 mistake in the transcript or whether the witness
20 A. I thought that you were referring to the
21 death penalty.
22 MS. McHENRY:
23 Q. No, sir. I'm just asking, in general, that
24 although you stated there were very few cases, you only
25 remember one or two where the death penalty was
1 imposed, that sentences of 20 years were imposed more
2 frequently than one or two times?
3 A. Again, it could be pronounced as a substitute
4 for the death penalty.
5 Q. Yes. I think you've already indicated this,
6 that, in fact, the 20-year sentence was imposed more
7 frequently than was the death penalty. The death
8 penalty happened rarely, and 20-year sentences happened
9 more frequently than the death penalty; correct?
10 A. Yes, that's correct. The court could
11 pronounce a 20-year sentence.
12 MS. McHENRY: I have no further questions.
13 Thank you.
14 MR. MORAN: Your Honour, I just have one
15 question in re-examination, and I think I have gone way
16 over my 15 minutes.
17 Re-examined by Mr. Moran:
18 Q. Professor, I'm a little confused, and maybe
19 you can help me. On the 20-year sentence as an
20 alternative to the death penalty, could a court just
21 impose a 20-year sentence, or did the court first have
22 to determine that the death penalty was appropriate
23 under the law, and then it could mitigate or reduce the
24 death penalty to a 20-year sentence? Which is it,
1 MS. McHENRY: I believe it's been asked and
2 answered. I'd object.
3 JUDGE KARIBI-WHYTE: What are you objecting
4 for? Can you kindly explain what the position is now?
5 I heard you said, perhaps, the 20-year term is no
6 longer irrelevant. As far as the Penal Code is
7 concerned, that has even been abolished. I don't know
8 what your answer will be to all these questions. Is it
9 true that you no longer have a 20-year term sentence?
10 A. Your Honour, there is no criminal act, both
11 in terms of federal and republic criminal laws, that
12 explicitly carries a 20-year prison sentence. Such a
13 sentence is not prescribed. What remains is the
14 provision contained in Article 38, paragraphs 2 and 3.
15 In relation to paragraph 2, it concerns
16 criminal acts which carry a death penalty. In these
17 cases, the court may also pronounce a 20-year prison
18 sentence. It is a provision of a general character.
19 Then we have paragraph 3 and the provision contained
20 therein, which says that the legislator can prescribe a
21 20-year prison sentence for serious forms of particular
22 criminal offences, but this is all we have at the
24 JUDGE KARIBI-WHYTE: If that satisfies Mr.
25 Moran, then I think that --
1 MR. MORAN: Your Honour, I think that
2 satisfies me. I want to thank the Professor for
3 coming. I want to thank you for allowing me to ask
4 that re-examination question.
5 JUDGE KARIBI-WHYTE: Thank you very much,
6 Professor Tomic. I think this is all that we have for
7 you. I think we're very grateful for you spending the
8 whole day with us here.
9 THE WITNESS: Thank you, too. I hope I've
10 been of some assistance. I hope that my testimony will
11 help you in reaching the right decision. Thank you
12 very much.
13 (The witness withdrew)
14 JUDGE KARIBI-WHYTE: Mr. Moran, do you have
15 any other witness?
16 MR. MORAN: There are two other matters. One
17 is, as we told the Court, we will be presenting a
18 written statement from Mrs. Delic, as soon as we get it
19 typed and presented, and we could do that tomorrow or
20 before the end of the week, at least. The other thing
21 is Mr. Delic wishes to exercise his right of allocution
22 and make a statement directly to the Tribunal in
23 mitigation of punishment. Do you care to do that now
24 or later?
25 JUDGE KARIBI-WHYTE: If he cares to, he can
1 be sworn and he can make his statement.
2 MR. MORAN: Your Honours, as I understand it,
3 in the Tadic case, it was just a statement and --
4 JUDGE KARIBI-WHYTE: If he wants to make a
5 statement, that's fine. I think that is his right to
6 do that.
7 MR. MORAN: Technically, would you like him
8 to do it from the witness box or would you like him to
9 do it from where he's at?
10 JUDGE KARIBI-WHYTE: From where he sits.
11 MR. NIEMANN: Your Honour, I don't understand
12 this procedure. Is he going to be sworn and are we
13 going to cross-examine him or what?
14 JUDGE JAN: Every accused can make a
15 statement in mitigation of his sentence. I think
16 that's the practice in England too and in Australia.
17 MR. NIEMANN: No. You're talking about the
18 ancient dock statement, and the statement before the
19 courts has been abolished in those jurisdictions. I
20 don't know whether it's been abolished in England, but
21 it's certainly been abolished in most jurisdictions.
22 It comes from the time when --
23 JUDGE JAN: He doesn't have to be under
24 oath. If he wants to say something in support of his
25 case in mitigation of sentence, he can do it.
1 MR. NIEMANN: Is he going to be subjected to
2 cross-examination? That's my main concern.
3 JUDGE KARIBI-WHYTE: He doesn't have to be.
4 MR. MORAN: Your Honour, just to help Mr.
5 Niemann, I don't know about the law in Australia, but
6 the law in the United States Federal Court is pretty
7 clear, that if a sentencing judge does not specifically
8 address the defendant individually and ask him if there
9 is a statement he'd wish to make in mitigation, that
10 sentence is vacated automatically without a showing of
12 JUDGE JAN: And he doesn't have to be under
14 MR. MORAN: No. The judge just says, "Do you
15 have anything to say, Mr. Jones." Actually, the case
16 in the Supreme Court Green versus United States. If
17 you'd like, tomorrow, I can bring a copy of it.
18 I understand that in the Tadic case, although
19 Mr. Niemann was there and I wasn't, Judge McDonald
20 talked about Mr. Tadic making a statement. It appears
21 to me that that procedure has been adopted by this
23 MR. NIEMANN: Mr. Tadic gave evidence, Your
24 Honour. He gave evidence and we cross-examined him.
25 So I don't know what Mr. Moran is talking about.
1 JUDGE JAN: He took an oath?
2 MR. NIEMANN: Yes, and we cross-examined
4 JUDGE KARIBI-WHYTE: I know you're relying on
5 Rule 85 as to the accused appearing as a witness
6 MR. NIEMANN: Yes. He's entitled to appear
7 as a witness and --
8 JUDGE JAN: I'm not sure you can call him a
9 witness. He's making a statement in his defence.
10 MR. NIEMANN: The accused can always give
11 evidence before the proceedings. An unsworn statement,
12 which goes back to the beginning of prehistory, Your
13 Honours, which, in most jurisdictions, has been
14 abolished, but apparently not in the United States, is
15 something which is no longer considered necessary.
16 There is a great deal of historical
17 justification for it in its time, but it has no
18 application in the modern court environment. In most
19 jurisdictions it's been abolished.
20 JUDGE KARIBI-WHYTE: Here he wishes to give
21 evidence in mitigation, not with respect to guilt or
22 innocence, which is a fairly different thing.
23 MR. NIEMANN: Yes. I don't know what stage
24 it's done at in the United States, but I'd be very
25 surprised if it was done in the course of a trial and
1 before the jury has returned its verdict.
2 MR. MORAN: Well, in the United States, the
3 procedure is first we get a verdict, and then we talk
4 about punishment, if it gets to that, but the procedure
5 that's been adopted by the Tribunal is to combine the
6 two procedures. If the defendant is to have any way of
7 making a statement, sworn or unsworn, to the Court in
8 mitigation of punishment, then it has to be done at
9 this point. I think that that is an ancient right.
10 It's a right that I'm familiar with, and I think that
11 most lawyers are familiar with and it's --
12 JUDGE JAN: What is the position in the
13 United Kingdom?
14 MR. MORRISON: If I may assist, I do sit as a
15 judge in the United Kingdom in the criminal courts on a
16 part-time basis as a recorder of the Crown Court. Mr.
17 Niemann is perfectly correct that the unsworn statement
18 from the dock has been abolished, so far as giving
19 evidence in the proceedings is concerned when it comes
20 to triable issues before a jury. But, of course, it is
21 still available for any defendant to make an unsworn
22 statement from the dock or any other part of the court
23 if it goes purely to mitigation.
24 Of course, as I understand it, the course
25 that Mr. Moran wishes to adopt is the latter, to make
1 an unsworn statement that goes purely to mitigation.
2 It's no more or less than if the judge asks the
3 defendant if he has anything to say before sentence.
4 Although we haven't had verdicts yet, of course, this
5 is because we are having a combined hearing.
6 If this was a procedure adopted in the United
7 Kingdom, I am certain that he would be able, at this
8 stage, to make an unsworn statement that related purely
9 to matters of mitigation. I would have to say, and I
10 apologise if this is trespassing, in any way, upon Your
11 Honours' discretion or jurisdiction, that it's
12 something I do constantly in cases where the defendant
13 doesn't give evidence. I always ask him if he wishes
14 to make a statement, if there is a conviction, and
15 before I sentence him.
16 JUDGE KARIBI-WHYTE: I don't think the Trial
17 Chamber has any apologies to make in respect of this,
18 in spite of the fact that we are adopting a new
19 procedure. We're convinced that, juridically, there is
20 nothing stopping an accused person from making a
21 statement in mitigation, if that is all he's doing.
22 MR. MORRISON: Your Honour, with respect,
23 that is the law as it stands in the United Kingdom,
24 but, of course, Mr. Niemann is perfectly correct to say
25 that unsworn statements from the dock as to matters of
1 evidence going to issues of guilt have, of course, been
2 abolished, but that's an entirely separate procedure.
3 JUDGE JAN: When he makes an unsworn
4 statement, he is not cross-examined.
5 MR. MORRISON: Not at all. There is no basis
6 for cross-examining. The only time that
7 cross-examination comes into the sentencing procedure
8 in the United Kingdom is if the Defence calls evidence,
9 and that is sworn evidence. The defendant himself can
10 make an unsworn statement, but if he elects to call
11 evidence in mitigation, then that is usually a sworn
12 statement, or if it isn't sworn, at least it's a
13 statement made under a solemn declaration, but it is
14 subject to cross-examination.
15 MR. MORAN: Your Honour, we have one --
16 JUDGE JAN: Thank you very much.
17 MR. MORRISON: You're very welcome.
18 MR. MORAN: -- we have one procedure in
19 American criminal jurisprudence that I know of where a
20 person is allowed to make, I presume it's called, a
21 statement from the dock where he's talking, unsworn,
22 about guilt and innocence. That is in trials by Court
23 Marshall under the Uniform Code of Military Justice.
24 This is a very different thing from making a statement
25 in mitigation of punishment.
1 The rule that I am familiar with, at least in
2 trials where the court is doing the sentencing, is that
3 the defendant, prior to the imposition of sentence, can
4 say anything he wants to the court that he thinks may
5 convince the court to mitigate the punishment.
6 JUDGE KARIBI-WHYTE: Actually, I did not
7 think the accused should come into the witness stand,
8 because he is not speaking as a witness here. He is
9 speaking as an accused person standing in the dock as
10 he is, and I regard where they are as the dock for this
12 MR. MORAN: Your Honour, that's the procedure
13 that I'm familiar with.
14 JUDGE KARIBI-WHYTE: So we could do that.
15 MR. MORAN: It is, I think, the universal
16 procedure in the jurisdictions that I've practised in.
17 JUDGE KARIBI-WHYTE: Mr. Delic can make
18 whatever statements he thinks he could in mitigation.
19 MR. MORAN: Thank you very much, Your
21 MR. DELIC: Good afternoon to all. I am glad
22 that after two years of being here I am finally able to
23 address you. Initially, I did not want to speak,
24 because I said everything I could to the Prosecution,
25 but after the testimony of Esad Landzo, I cannot sleep
1 at night because I never ordered Esad Landzo to kill
2 anyone, to set anyone on fire.
3 MS. McMURREY: Your Honour, I'm going to
4 object. This seems to be going to guilt or innocence
5 at this point, instead of mitigation of punishment.
6 MR. MORAN: Your Honour, I think that
7 anything that Mr. Delic --
8 JUDGE JAN: Supposing a person is convicted
9 and the judge asks him what should be the quantum of
10 sentence, can he, at that stage, say "I'm still
12 MS. McMURREY: It's confusing in the --
13 JUDGE KARIBI-WHYTE: It's not confusing.
14 JUDGE JAN: Can't he say that he was guilty
15 or innocent?
16 MS. McMURREY: Yes, I understand.
17 JUDGE KARIBI-WHYTE: Try to understand the
18 ethics of the profession.
19 MR. NIEMANN: Your Honours, I did think that
20 this matter was going to proceed on the basis that it
21 would only be matters in mitigation. I object if there
22 is going to be any issues raised by the accused which
23 go to the question of guilt or innocence, and I support
24 my colleague in that.
25 MR. MORAN: Your Honour, I think that the
1 rule that I'm familiar with is that anything this
2 accused wishes to say that he believes could convince
3 the sentencer to mitigate the punishment -- there's an
4 absolute horror story out of a court in New York where
5 a Mafia member knew he was going to get life, and he
6 proceeded to curse at the court for an hour, and that
7 was permissible. By the way, he did get life on that
8 case. But whatever the defendant wishes to say is
9 germane at this point.
10 JUDGE KARIBI-WHYTE: Now, let's not confuse
11 the two situations where one is still pleading
12 innocence. As I said from the beginning when we
13 started, we've started a procedure which has some
14 ambiguities in it. The accused persons are still under
15 our Rules and our law and are presumed to be innocent.
16 They are still, at the same time, expected to plead in
17 mitigation of guilt. This is a fairly clear thing.
18 But here, if the accused person wants to say
19 anything which he expects the Trial Chamber to take
20 seriously, he should not reopen matters which affect
21 guilt. He should, as much as he can, plead, in
22 explanation, of whatever might have gone against him
23 and not say things which would appear to involve other
24 accused persons at the trial. Because mitigation is
25 mitigation as to one's own guilt and should not affect
1 other persons in the trial.
2 MR. MORAN: Your Honour, I don't think he
3 wants to say anything that would affect the sentence
4 that may be imposed if there's a finding of guilt as to
5 any other defendant. That's clearly between the Trial
6 Chamber and that defendant.
7 JUDGE KARIBI-WHYTE: Initially, I thought
8 that when he opened with that statement, that it was
9 just an opening statement, that he wouldn't go
10 forward. I agree that if somebody says certain things
11 against you, you might not sleep at night. That's
12 understandable. But perhaps he might speak of matters
13 in mitigation that are not --
14 MR. MORAN: Your Honour, since I didn't write
15 this, and this is Mr. Delic's statement, I'm not sure
16 what's going to be said next. I think if we just let
17 him continue --
18 MS. McMURREY: Your Honours, if I just might
19 make a suggestion, if he does go into matters of guilt
20 or innocence, then he should be sworn and take the
21 stand. If he sticks with mitigation of punishment,
22 then he can have his unsworn statement.
23 MR. MORAN: Of course, I agree with Judge
24 Jan, that a person who has been found guilty by a jury,
25 he can then get up in front of the sentencing judge and
1 say, "Judge, the jury has found me guilty, but I'm
2 innocent, and please give me probation."
3 JUDGE KARIBI-WHYTE: I think he is free to
4 say whatever position he wants to and to make his plea
5 in mitigation.
6 MR. MORAN: I agree with you, Your Honour.
7 JUDGE KARIBI-WHYTE: Let's hear Mr. Delic.
8 MR. DELIC: Thank you, Mr. President.
9 MR. NIEMANN: I'm sorry, Your Honours.
10 There's something wrong with our headsets. We're
11 getting the wrong translation. I don't know what it
12 is, but I can't follow the proceeding. I'm getting a
13 different translation.
14 THE INTERPRETER: Counsel, the problem is
15 that Mr. Delic's microphone is on, and it can be heard
16 through his earphones. That is all it is.
17 JUDGE JAN: Actually, I'm hearing two
18 versions, the English version and the Bosnian version.
19 JUDGE KARIBI-WHYTE: Yes. You may proceed,
21 MR. DELIC: Thank you, Mr. President. May I
22 proceed where I left off?
23 JUDGE KARIBI-WHYTE: Yes.
24 MR. DELIC: Thank you. In other words, never
25 in my life, while I stayed in Celebici, did I order
1 Mr. Landzo. I'm looking at him in the eyes. I never
2 told you to murder someone, to perform fellatio. Why
3 aren't you ashamed of yourself to say that somebody
4 told you to do so? You can lie to some people for
5 awhile, but you will not be able to lie all the time.
6 MS. McMURREY: Mr. Delic is addressing
7 Mr. Landzo. He is not addressing the Court right now,
8 and he is still going to issues of guilt or innocence.
9 JUDGE KARIBI-WHYTE: Actually, if you had
10 this much in the approach to the matter, you could have
11 also had Mr. Landzo go into the witness box and deny
12 it, because this is directly alleged to him.
13 This is not right. If you are making any
14 statements in mitigation, the Trial Chamber will listen
15 to that.
16 MR. DELIC: Mr. President, I could not even
17 dream that somebody would be so rotten to tell
18 somebody -- to be told, ordered, that somebody should
19 be set on fire. I, for the first time, heard about the
20 fellatio of the Djordjic brothers. I had never heard
21 of it before in my life.
22 I would only like to request one more thing.
23 I have spent enough time, and I would not like to go to
24 prison because of Esad Landzo's lies. This is all I
25 have to say.
1 JUDGE KARIBI-WHYTE: There is nothing going
2 to mitigation in this. It is not part of any
3 mitigating evidence.
4 MS. McMURREY: Your Honour, based on the fact
5 that it was mostly addressed to Mr. Landzo and not the
6 Trial Chamber and dealt with no issues concerning
7 mitigation, I move that the whole statement, the whole
8 right of allocation, be struck from the record and
10 MR. NIEMANN: The Prosecution supports that
11 application, Your Honour. None of it went to the issue
12 of mitigation.
13 JUDGE KARIBI-WHYTE: It's not for you to
14 say. The Trial Chamber knows what to take into account
15 in determining mitigation or not. We've heard him, and
16 it doesn't matter whether you made such a submission or
17 not. We know what he said in his statement in
19 Mr. Moran, I think that's all we have from
20 your --
21 MR. MORAN: Yes, Your Honour. Two little
22 housekeeping matters. The registry has informed me
23 that, one, they had to renumber those documents that I
24 provided earlier today, and, two, I apparently forgot
25 to move to introduce them. So with that, I would move
1 to introduce those documents under whatever the proper
2 numbers are.
3 JUDGE KARIBI-WHYTE: Whatever they are, you
4 can move to introduce them.
5 MR. MORAN: Again, just so the record is
6 clear, for about the third time, we will be
7 supplementing with the written statement, under
8 whatever the next number is, for Mrs. Delic. With
9 that, we rest.
10 JUDGE KARIBI-WHYTE: Who is next?
11 MR. MORRISON: Please, Your Honour, it now
12 falls upon Mr. Mucic to present his submissions in
13 mitigation. There are a total of six witnesses to give
14 short oral evidence. My application, at this stage, is
15 to adjourn his submissions until tomorrow, really, for
16 two reasons.
17 First of all, it's very late in the Trial
18 Chamber's day, and the Trial Chamber has already heard
19 a lot of evidence today. Secondly and pertinently,
20 those witnesses were seen by myself and Madam Residovic
21 until approximately midnight last night to get -- I beg
22 your pardon, Madam Buturovic, perhaps an indication of
23 how tired I am -- until after midnight last night to
24 take proofs of evidence from them. The witnesses I
25 know were, therefore, up until at least midnight, and
1 they came to court this morning in anticipation of
2 giving that testimony much earlier.
3 I don't criticise my learned friend, Mr.
4 Moran, but we all thought that the Professor was going
5 to be, perhaps, an hour this morning and that they
6 would be started --
7 JUDGE JAN: That's what we thought too.
8 MR. MORRISON: The net effect is that the six
9 witnesses have literally been sitting in a room all day
10 now, and I don't think it would be fair to them or,
11 indeed, to anybody else to expect them to give us their
12 best at this time of day. As we only have something in
13 the order of 14 minutes left, I make the application
14 for an adjournment until tomorrow.
15 I can give this assurance, that subject to
16 cross-examination, we will go no further than lunch time
18 JUDGE KARIBI-WHYTE: I think that's
19 satisfactory to me, and I think my colleagues also
20 agree. We can adjourn now and come back at 10.00 a.m.
21 Yes, have you anything to say?
22 MS. McMURREY: Yes. I just wanted to ask the
23 Court's permission to be excused from the proceedings
24 for the rest of the week. Ms. Nancy Boler will be here
25 to represent Mr. Landzo, but I would like to ask to be
1 excused for the rest of the week.
2 JUDGE KARIBI-WHYTE: You can be excused.
3 MS. McMURREY: Thank you.
4 JUDGE KARIBI-WHYTE: The Trial Chamber will
5 now rise.
6 --- Whereupon the hearing adjourned at
7 5.17 p.m., to be reconvened on
8 Wednesday, the 14th day of October, 1998
9 at 10.00 a.m.