Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9053

1 Wednesday, 2nd July 1997

2 (2.30 pm)

3 (In open session)

4 JUDGE McDONALD: Mr. Vujin, would you call your next

5 witness, please?

6 MR. VUJIN: Yes, your Honour.

7 JUDGE McDONALD: One matter regarding the report of

8 Dr. Nedopil. Have you had an opportunity to review the

9 English translation of that?

10 MR. VUJIN: Yes, your Honour, I have reviewed and compared

11 the translation, the English translation with the

12 German, and I found the text to be identical, and

13 therefore we accept that it be tendered as evidence and

14 admitted.

15 JUDGE McDONALD: If you will mark that as the next

16 exhibit. Do you have an extra copy for the Judges?


18 MR. KEEGAN: We will provide copies to the court before the

19 close of today, your Honour.

20 JUDGE McDONALD: You may retain your copy. Mr. Keegan, if

21 you would provide four copies, one for the record and

22 one for each of the Judges, fine. You may bring in your

23 next witness.

24 MR. VUJIN: Your Honour, I apologise. Before starting with

25 the questioning of the expert witness, we would like to

Page 9054

1 tender to the court another written document which has

2 to do to the current regulations of Republika Srpska,

3 dealing with amnesty in accordance with the law on

4 amnesty, which can show how these problems were dealt

5 with in the territory that now belongs to the Republika

6 Srkpsa according to the Dayton Accords.

7 JUDGE McDONALD: Does that law relate to war crimes or does

8 it just relate to what would be considered ordinary

9 crimes.

10 MR. VUJIN: Yes, it does apply to war crimes as well and

11 mobilisation.

12 THE REGISTRAR: This will be marked at D120 and the report

13 D119.

14 JUDGE McDONALD: Is there any objection, Mr. Niemann, to 119

15 and 120?

16 MR. NIEMANN: There is no objection to the document at all.

17 I am not sure we necessarily agree with the

18 characterisation of the defence.


20 MR. NIEMANN: Yes.

21 JUDGE McDONALD: Very good. They will be admitted. Are we

22 ready now for Professor Aleksic? Very good. You may

23 bring in Professor Aleksic.

24 (Witness enters court)

25 JUDGE McDONALD: Would you please take the oath?

Page 9055

1 A. (in interpretation): I did not understand.

2 JUDGE McDONALD: Would you please take the oath, the solemn

3 declaration that has been handed to you?

4 Professor Aleksic (sworn)

5 Examined by Mr. Vujin

6 JUDGE McDONALD: Thank you. You may be seated. Mr. Vujin,

7 you may proceed.

8 MR. VUJIN: Thank you, your Honour. Professor Aleksic, good

9 afternoon.

10 A. Good afternoon.

11 Q. Is your name Dr. Zivojin Aleksic?

12 A. Do I have to rise? Yes, my name is Zivojin Aleksic.

13 I am a Professor and I acquired the doctorate later.

14 Q. Professor, you teach at the Belgrade Law School of

15 Belgrade University?

16 A. Yes, for 40 years.

17 Q. To introduce you to the court, will you please tell me

18 how many books and text books you have written and

19 issued?

20 A. Quite a number. I published 26 books. Quite a number

21 of them have been translated into German, English,

22 Russian, French.

23 Q. Thank you. Will you tell me of which institutions you

24 were a member, where you worked, but very briefly?

25 A. I took a master's degree in Lausanne, my doctorate in

Page 9056

1 Belgrade. I completed three levels of the faculty of

2 comparative law, the Vrije Universiteit in Amsterdam, in

3 Luxembourg. I worked in the United Nations in the area

4 of technical assistance. I trained people. I was a

5 member of the World Peace Through Law Movement and I was

6 co-chairman of the World Association of Law Professors,

7 together with Professor Joe Hazzard, that I'm sure the

8 Trial Chamber is familiar with, from Colombia

9 University. We were co-chairmen, the two of us.

10 I don't think there's any need to go into details. In

11 the country I was President of a large number of

12 associations. You see, I'm well advanced in age, so

13 that it's no wonder that I have such experience.

14 Q. I think that will be enough. Can you tell us whether

15 you were engaged in certain specific criminal cases and

16 what is your speciality?

17 A. My speciality is judicial proof.

18 Q. Were you engaged in that area to deal with certain world

19 renowned cases?

20 A. Yes. Whenever our State was implicated, I participated

21 in trials of the aggressors on the mission in Bonn,

22 those who attacked the military mission in Berlin, the

23 assassins of our ambassador in Stockholm. I trained

24 many experts in Africa.

25 Q. Thank you.

Page 9057

1 A. And there are many other things.

2 Q. Thank you. I think that will be enough for the Trial

3 Chamber to get an idea about you as an expert.

4 Could you please say something about the position

5 of criminal law of Yugoslavia, its roots, its level of

6 development and also a few words about the system of

7 criminal sanctions?

8 A. Criminal law follows life, and if we look back into

9 history, distant history, I think it is better for me to

10 speak slowly, because of the interpretation -- in

11 distant history, in the 14th century already we had an

12 extraordinary criminal code, the Dusan Code. Then

13 things changed when in 1918 the kingdom of Serbs, Croats

14 and Slovenes was formed, each of those nations passed

15 its own laws. Later this was shaped into the Criminal

16 Code of Yugoslavia, and I must say that we made a

17 compilation of the Austrian law, the German law and

18 partially the French law, so that the provisions are in

19 accordance with European continental law, but we had an

20 ugly period after the end of the Second World War, from

21 1945 until 1950, when we were under the influence of the

22 Soviet Union in those days, and we then adopted certain

23 rules in the Criminal Code and in the procedure.

24 Q. Which were far from anything we could take pride in, so

25 that they disappeared very soon, which means that we

Page 9058

1 departed from the countries of the Eastern bloc?

2 A. Yes, fortunately, as you know, Yugoslavia managed to

3 withdraw from that bloc and we developed a model of the

4 Criminal Code which was changed in time, but what was

5 specific was that each republic and province had its own

6 Criminal Code, and the procedure was common to them.

7 Unfortunately our Yugoslavia disintegrated and Serbia

8 and Montenegro amended those laws to a certain extent,

9 and our law will be further amended now in the aim to

10 develop a central law and code and procedure for the

11 whole of Yugoslavia. At the moment we have a Serbian

12 and a Montenegran law, but there is not much difference

13 between them, and there is also a Criminal Code of

14 Yugoslavia as the more general, and these two as the

15 specific which eliminate the criminal offences which are

16 covered by the former. At least we expect this to

17 become a unified criminal code.

18 Q. Can you tell us something about the system of criminal

19 sanctions? What is the maximum penalty?

20 A. As the first penalty we have caution, then fines and

21 then imprisonment. Imprisonment goes up to fifteen

22 years. That is the limit. However, because until

23 recently we had the death penalty in Yugoslavia, we have

24 given the possibility to the court in certain individual

25 cases to decide to substitute the death sentence with 20

Page 9059

1 years imprisonment. So if I tell your Honours that we

2 have 15 years as a limit and 20 years, I must tell you

3 that 20 years is very exceptional, because it shows that

4 between 15 and 20 there are no intermediate penalties.

5 There is no penalty of 16 or 17 years. There's 15 as a

6 limit and 20 only as a substitute for the death

7 penalty. By constitution the death penalty has been

8 abolished, and we are still discussing the substitute,

9 but 20 years does exist.

10 Q. Therefore, according to the Federal Criminal Code, there

11 is no death penalty, but a penalty of 20 years is

12 envisaged, which may exceptionally be prescribed from

13 the worst criminal offences -- for the worst forms of

14 the worst criminal offences it is envisaged?

15 A. That is correct, but the fact that the court, if I may

16 use the term, in normal proceedings that the court will

17 normally pass a sentence up to 15 years.

18 Q. Thank you. Which are the circumstances envisaged by the

19 law and which the court takes into consideration when

20 deciding which criminal sanction it will pronounce?

21 A. We have an institution called "social danger" and every

22 court -- I don't think that is any novelty -- on the

23 basis of premeditation and criminal intent, but what

24 I would like to tell the Trial Chamber, we do not have

25 premeditation in our criminal code. We have intent and

Page 9060

1 negligence. Intent, we make a distinction between

2 direct criminal intent and possible criminal intent,

3 which is reached when the negligence is so gross that it

4 develops into intent.

5 For instance, you are driving a car with bad

6 brakes believing that nothing will happen. That is

7 possible intent. In negligence we have violent

8 negligence, conscious and unconscious, unconscious

9 negligence being the mildest form.

10 Q. Which are the objectives of criminal sanctions according

11 to our law?

12 A. In Article 1, as in all other laws, it says that the

13 purpose is to prevent the accused from committing

14 further criminal offences. That is number 1. The

15 second is the humane intention, that the person who is

16 prevented from further criminal offences is sought to be

17 reintegrated -- rehabilitated. Then the second part of

18 Article 1 deals with general potential, prevention in

19 the sense of strengthening morality and preventing

20 impermissible actions, and also certain kinds of

21 threats. It is a kind of caution to all others who

22 might consider committing a criminal offence.

23 Q. Thank you. Could you tell us a little more about the

24 individualisation of penalties? To what extent does the

25 court have the possibility to bear in mind all the

Page 9061

1 circumstances of the event and the character of the

2 accused in order to weigh out the sentence?

3 A. The individualisation of sanctions -- I'm already an

4 elderly professor, so I look back into history -- is the

5 central effort of every court. I'm sure the court is

6 well aware of this. The greatest problem is the problem

7 of measure, of degree, as anything else in life, how to

8 find the proper measure for a particular person. Our

9 law has given a list of obligatory things that the court

10 must bear in mind, but it is left to the court to assess

11 other circumstances as well that may arise.

12 Q. Could you elaborate on that?

13 A. You see, there is the life before, whether he has a

14 criminal record, how he lived, then motive, then

15 circumstances, then rage and so on, and then in the end

16 there is something that is important, and that is the

17 behaviour of the perpetrator after the commission of the

18 offence. This is something that carries a lot of weight

19 in Yugoslavia, because this behaviour after the offence

20 is indicative of a kind of rehabilitation of the

21 individual and his becoming a useful member of the

22 community.

23 Q. To come back to the first element that you mentioned,

24 prior life, as our law puts it, is family life assessed,

25 the character of the accused, the circumstances under

Page 9062

1 which he was brought up, the circumstances in which he

2 was living?

3 A. All these things are assessed, as well as his material

4 position, simply how he stands, what the conditions of

5 life were in which he was brought up. For that purpose

6 one usually calls up the immediate family and relatives,

7 how he behaved at school, in the army and in any other

8 collective environment, in a community, and then we add

9 what I said just now, his behaviour following the

10 commission of the offence.

11 Q. What I would be further interested in is the sentencing

12 and the sanctioning of accomplices?

13 A. Mr. Vujin, you are really rejuvenating me, because I have

14 mostly been in the role of me putting the questions, but

15 now it is my former student who is asking me questions,

16 and this is a great pleasure for me. You see, there is

17 a basic rule and that is that each individual is

18 responsible within the framework of his intent. This is

19 something that we took over from the German and Austrian

20 law. The "Code Penale" is not so definite in that

21 respect. Of course, any deviation from within those

22 boundaries it is up to the court to assess, so if we

23 have accomplices, each one of them is responsible within

24 the limits of his intent.

25 Q. Could you illustrate this, please?

Page 9063

1 A. Yes, of course. If somebody agrees with somebody else

2 to break into a shop and to rob it, then three of them

3 do this, their intent was to enter and to appropriate

4 money or goods, but one of them comes across the guard

5 and kills him, so that he would discover them. Then he

6 is responsible for his intent and these other two cannot

7 be responsible for the same.

8 Q. In that case these other two would not be responsible

9 for murder?

10 A. No. That is the case in our law.

11 Q. Thank you. We have this institute of a criminal

12 offence, an on-going criminal offence. Can you explain

13 that?

14 A. Life shows that people who engage in crime do not

15 usually limit themselves to one offence, but sometimes

16 do a series of such offences or simultaneously commit

17 several offences, and in the case of the accomplice --

18 is that what you were asking me -- again you go within

19 the boundaries of the intent, but the sanctioning, the

20 method we applied was aspiration, no cumulation,

21 aspiration. Aspiration means that the court rules as

22 follows. For each offence committed, he is -- a

23 sentence is pronounced, but the court must bear in mind,

24 and there are six offences three years each, then the

25 sum -- it may not be a sum -- the final sentence may not

Page 9064

1 be the sum, because that would be cumulation, and there

2 is another rule, that it cannot exceed the envisaged

3 maximum. It cannot be more than 15 years. In this

4 case, if you have six criminal offences three years

5 each, that would be 18. It couldn't exceed 15, because

6 15 is the limit. Secondly, it cannot be a simple sum,

7 because that would be the method of cumulation. I'm

8 sorry if I have to say this, but I'm sure our

9 distinguished court knows this. This method of

10 cumulation has been abandoned in theory.

11 JUDGE STEPHEN: Could I ask one question on what I think is

12 a matter of interpretation? I think the witness spoke

13 about aspiration as being something distinct from

14 cumulation. "Aspiration" in English doesn't mean that

15 at all. Could you perhaps ask the witness what he has

16 in mind by "aspiration", what was translated as

17 "aspiration"?

18 A. Yes. In Latin -- "aspiration" is from Latin. There are

19 six times three years, for instance, for criminal

20 offences. Cumulation would mean 18 years. Aspiration

21 means taking away a little bit of each and not making a

22 simple sum of those penalties. I don't know if I have

23 explained myself. I hope we understand one another.

24 Yes, in English it doesn't mean anything, but we have

25 taken it over from Latin, and I studied Latin a long

Page 9065

1 time ago.

2 JUDGE STEPHEN: In English it means "hoping".

3 A. Yes, yes, that is aspiration, but the aspiration,

4 "asperatio". Sorry for me -- I am professor. It is

5 usual I give lectures but you are absolutely right. Not

6 aspiration.

7 JUDGE STEPHEN: Aspe ...?

8 A. Only aspiration.

9 JUDGE STEPHEN: It is similar to sentences being not

10 cumulative but concurrent, concurrent, running with?

11 A. Yes, you are quite right. Cumulation would in this case

12 be 18 years, but it violates two principles of the

13 aspiration, and that is it cannot exceed the maximum

14 limit envisaged by the law, which is 15 years, and

15 secondly, which is even more important, it cannot be a

16 simple sum of all the penalties, because then it is

17 cumulation.

18 JUDGE McDONALD: Why is that so? Why can it not be -- some

19 systems do have both concurrent and cumulative available

20 to the sentencing Judge so that, for example, if an

21 individual commits two distinct offences, you look at

22 each offence, you determine what is the appropriate

23 sentence, and assuming that the offences are distinct

24 and separate, some systems do allow them to be served

25 cumulatively, meaning you would sentence for offence A,

Page 9066

1 recognising that it had been done, and you would

2 sentence for offence B, recognising that it had been

3 done, and in order to give effect to that, you would

4 then have to combine those two. Why is that not so in

5 your system?

6 A. Your Honour, thank you for the attention you are showing

7 for what I am saying. I thank the whole Trial Chamber,

8 of course. But this aspiration or concurrence occurs

9 when the offences were committed without a wide time

10 limit in between, for instance in a single day, not at

11 various periods of time. If they occur at various

12 times, then it is possible, but, secondly, in Europe,

13 since the French Revolution certain ideas came to the

14 fore speaking about certain -- giving certain

15 alleviation to or the beneficial treatment of the

16 accused, and this is one of the things whereby the

17 position of the accused is sought to be alleviated,

18 confronted with the machinery of justice: nebis in idem

19 re sum dicta (sic). Various facilities for the accused,

20 which at first glance may not be logical but have a

21 certain indication of our belief in man, in his ability

22 to correct his behaviour and become a useful member of

23 society. It is terrible when justice squeezes out the

24 man. Such a man can never be rehabilitated.

25 MR. VUJIN: If I may be allowed, your Honours --

Page 9067

1 JUDGE McDONALD: There are different theories, are there

2 not, in terms of sentencing? Some people believe there

3 is a role for rehabilitation, other people for

4 punishment, other people for deterrence. There are a

5 number of factors that play into this picture, of

6 course, and I think you spoke of deterrence. You didn't

7 use the word, but I understand what you meant. I guess

8 it would depend on which you considered to be the most

9 important of these various factors or motives or reasons

10 for sentencing, but after the French Revolution you are

11 saying that what became in vogue was rehabilitation?

12 A. I think we can agree on that. Absolutely. Your Honour,

13 I fully agree. Rehabilitation is something that all

14 modern courts of law aspire for. However, it was

15 difficult for this idea to struggle in through history,

16 because an eye for eye and tooth for tooth is still

17 present in the way of thinking of the man in the street

18 in my country, for example, and you know best as a judge

19 how many times you have heard or still hear objections

20 to your concept of justice and imposing sentences.

21 Deterrence is certainly one thing, but I just thought of

22 examples from Medieval times when, for example, people

23 would steal during a public hanging, because people

24 would be watching the hanging transfixed and they

25 wouldn't pay attention to somebody pilfering their

Page 9068

1 wallets. So we have to believe in something. In

2 Yugoslavia I always tell my students that each verdict

3 affects at least seven people, and it can change a

4 person's life definitely, but let us see to what extent,

5 but frankly speaking, sometimes a sentence can destroy a

6 person and his family. I believe that the esteemed

7 chamber shared this opinion and I apologise for saying

8 things that are certainly your views too; no?

9 JUDGE McDONALD: I, for one, would want to know the seven

10 people who the sentence affects or are we getting too

11 far ....

12 A. What seven? First of all, the family, that is to say

13 the spouse, the wife or two or three children, or one

14 child -- I don't know. Then his parents, you know.

15 Then the wife and her parents and that's about seven,

16 and then if there are any siblings, a brother, a sister,

17 etc. I'm sure that you accept that. A person who was

18 sentenced once has a very tough time afterwards trying

19 to find his place under the sun. Thank you.

20 JUDGE STEPHEN: I have one last question I think on

21 aspiration. It sounds to me as if it is different from

22 the notion of concurrent sentences. Let us take an

23 example of two offences, each being punished with three

24 year's imprisonment. If they were concurrent, the

25 accused would serve only three years. With aspiration,

Page 9069

1 you might add -- you might add pieces of each of them

2 and it might be a total of, say, four years. Is that

3 the way in which your system works?

4 A. You are putting a question to me as if you were a

5 colleague of my judge colleagues in Yugoslavia. That is

6 what they usually ask and that is how they usually

7 work. However, concurrence does not have to mean the

8 same day. You have pickpockets, for example, who do

9 that as a regular thing. Then the social danger is

10 great because he shows his intent every day and then

11 again they cannot go beyond these two things, the

12 maximum envisaged for that kind of crime and

13 mathematical summing up.

14 MR. VUJIN: But with your permission, your Honour,

15 I understood Judge Stephen's question but I don't know

16 how come we have three years. If we have two sentences

17 of three years each concurrently for two crimes, are

18 there systems in which the accused will spend only three

19 years in prison?


21 MR. VUJIN: Then our system is truly different. As the

22 Professor said, he will not be prison for three years

23 but four or more?

24 A. He have would have to get a larger sentence because

25 otherwise he would be privileged, but not six years, no.

Page 9070

1 JUDGE STEPHEN: That explains it precisely. Thank you.

2 MR. VUJIN: Professor, the institute of mitigating the

3 sentence has been prescribed by our law. Can you tell

4 me something about that institute?

5 A. That institute is quite clear, at least in my opinion.

6 We have the offender. We have the punishment envisaged

7 for that crime. There is always a range involved from

8 one to five years.

9 Q. A minimum and a maximum prescribed by law?

10 A. Yes. I must tell the Chamber, with their permission,

11 that unfortunately most of our analyses -- it is not

12 always a good thing -- show that most of our punishment

13 sentences in Yugoslavia are near the minimum. This may

14 be a surprise, but usually it's the minimum. If it's

15 from 3-7 years, then it's usually 3-4 years that is

16 served. However, mitigation of the sentence. We have

17 the person involved. We have his crime and we have the

18 punishment that is envisaged. His previous life,

19 subjective and objective circumstances, are quite

20 telling, and this can lead to a milder, less strict

21 sentence, but it can also to a more strict sentence.

22 For example, if he abuses a person who he is supposed to

23 take care of, for example if he is a teacher or if he is

24 a guardian and if he is in charge of a certain person,

25 and if he abuses that, that is an aggravating

Page 9071

1 circumstance, or, for example, when we had an epidemic

2 of Smallpox in Belgrade, then very strict sentences were

3 imposed on people who smuggled medicine related to that

4 disease. That is an aggravating circumstance. A

5 mitigating circumstance is, for example, if somebody

6 hits a person with his car but he puts that person in

7 the same car immediately, takes him to the hospital,

8 donates blood for this person, etc., or the previous

9 forms that were filled out in our country also included

10 questions asking whether this person had been decorated

11 or received certain awards, etc., so this was taken into

12 account.

13 If I'm not mistaken, you are looking at the papers

14 that were submitted to the Prosecutor made by Dr.

15 Vasiljavic and Dr. Jankovic. First of all, I must say

16 I am very sorry that Dr. Vasiljavic died but the paper

17 you have is dated, I'm afraid, Mr. Prosecutor, because

18 the data contained there refer to 1982-1988. So they

19 are ten years old. Secondly, that was the period of the

20 SFRY, the Socialist Federal Republic of Yugoslavia, when

21 there were five different laws, and a classical, so to

22 speak, situation, of crime, when crimes such as

23 genocide, etc., practically didn't even exist, crimes

24 against humanity.

25 In 1991, when Yugoslavia started falling apart the

Page 9072

1 situation changed. For example, in Belgrade we have a

2 lot of murders. During one year, if you take into

3 account the number of criminal murders, it exceeds that

4 which was relevant for four year periods before that.

5 So my colleagues whom I know and respect made this paper

6 and I wish to draw nevertheless the attention of this

7 court to the fact that the paper is dated. If

8 necessary, I can submit to you a written document on the

9 current situation in criminal law and the criminal

10 judiciary in Montenegro and Serbia now. The closeness

11 of the war brought forth what is called "the Vietnam

12 syndrome" and I believe that a great effort will have to

13 be made both by Yugoslavia and the international

14 community for Yugoslavia to become once again what it

15 was before, a tourist country.

16 Q. Is that one of the reasons why our courts now impose

17 sentences which are close to the legal minimum, so if

18 the range envisaged is 5-20 years, if all circumstances

19 are taken into account, nevertheless the sentence is

20 usually 5 years or something similar to that?

21 A. There are different theories on that is correct which is

22 absolutely correct. It is always the lower minimum in

23 Yugoslavia that is applied in the case of these

24 sentences. When I talk to our judges they usually find

25 various mitigating circumstances which say that this

Page 9073

1 person is not incorrigible, that he is not ruthless, but

2 I cannot say what the exact reason is. After all,

3 that's the job of the court. Therefore certain things

4 in life that we simply don't know about. For example,

5 there is a standard rule in all countries that out of

6 the total number of children born in any country 100 men

7 are born and 100 women, but then sometimes the advantage

8 of males and females is reversed, but at birth it is

9 105: 100.

10 Q. Thank you, Professor. With the permission of the Trial

11 Chamber, I wish to ask you something which may only seem

12 outside of your domain, but it is relevant to all of us

13 here, I think. As your job did you study local

14 self-government in our country perhaps?

15 A. As I worked on programmes of study against crime, either

16 general or particular ones, we devoted a great deal of

17 attention to the family as the nuclear cell and all

18 these smaller organisations too. Unfortunately the

19 struggle against crime requires a lot of money, and

20 that's a basic problem in Yugoslavia. I don't know how

21 we're going to deal with that.

22 Q. When you speak of these smaller communities, are you

23 referring to municipalities?

24 A. Certainly. The municipality is the closest to the

25 family. It takes care of the school, of the Red Cross.

Page 9074

1 It solves housing problems, public utilities. It is

2 practically the heartbeat of a nation.

3 Q. Is there an authority which is not entitled to pass

4 decisions but which does exist from an organisational

5 point of view?

6 A. According to the constitution the municipality is the

7 lowest organ. However, because of the fact that our

8 country is so widespread, these municipalities cannot

9 always take care of their entire territory. So, for

10 example, a health centre, municipal health centre can

11 work in different places in different ways in order to

12 help the entire population. So you have these local

13 conferences, etc., etc., but the statute of the

14 municipality has to say where there is going to be a

15 local community, and since this local community is not a

16 constitutional category, it does not have any major

17 functions. This is just a centre that handles matters

18 related to schools, etc. If I remember correctly, they

19 have an assembly of the community, a council of the

20 community and an interesting organ -- I don't know what

21 kinds of results it yields -- and that is the consumers'

22 council. So that is it more or less. Sometimes there

23 are certain ad hoc matters, protection from fires, for

24 instance, then; defence from hail and thunder, more or

25 less this is a centre which is in contact with the

Page 9075

1 municipality and does not pass decisions through its

2 own.

3 Q. So it is through the decision of the municipality that

4 the local community is formed?

5 A. Yes.

6 Q. And you said there is a council as an executive organ

7 and this consumers' council that takes care of supply,

8 markets, etc.?

9 A. I must say that it functions rather poorly.

10 Q. I'm interested in this relationship between the assembly

11 and this executive organ of the local community?

12 A. As elsewhere, the assembly doesn't meet very frequently

13 and the council works all the time practically.

14 Q. But the council works according to the decision of the

15 assembly?

16 A. Certainly.

17 Q. And the assembly is accountable to the municipality

18 whereas the council is accountable to the assembly?

19 A. There is one place within this local self-government.

20 Q. The secretary of the local community, is that an organ

21 or not?

22 A. I cannot tell you exactly, but I think this is a paid

23 official who is there to act according to the

24 instructions received from these other organs.

25 Q. Is this an administrative work? Is that what you can

Page 9076

1 say?

2 A. Absolutely. It has no other authority of the even the

3 council of the local community. The question is whether

4 they have any special authority or is this authority

5 delegated by the assembly. To take an insignificant

6 matter, enrolling into school, then the council informed

7 the assembly how many children of school age there are

8 now on the territory of the local community, and then

9 the municipality decides whether it is sufficient to

10 have, say, one teacher, or whether they need another

11 teacher.

12 Q. So the local community cannot decide that?

13 A. No, it is the municipality. The municipality's extended

14 arm, if I may say so.

15 Q. To whom is the secretary of the local community

16 responsibility?

17 A. To the President of the council and the President of the

18 council is responsible to the assembly and the President

19 of the assembly of the local community responsible to

20 the municipality.

21 Q. And the municipality is the only one that is in charge

22 of reaching these decisions?

23 A. Of course. Otherwise there would be utter confusion.

24 Q. Thank you, Professor. I have completed my examination.

25 Thank you.

Page 9077

1 JUDGE McDONALD: Thank you, Mr. Vujin. Cross-examination,

2 Mr. Niemann?

3 Cross-examination by Mr. Niemann

4 MR. NIEMANN: Professor Aleksic, when was the death penalty

5 abolished, what year?

6 A. The death penalty was abolished when the new

7 constitution of Yugoslavia was adopted of the present

8 day Federal Republic of Yugoslavia. This was about two

9 years ago, approximately two years ago, I think, and now

10 we have a strange paradox in our criminal law, and you

11 being an excellent lawyer will fully appreciate that.

12 We have a constitution which abolished the death penalty

13 and then there is Serbia that has the death penalty and

14 Montenegro that does not have the death penalty. At any

15 rate I can tell you what the epilogue is. There are no

16 death penalties. There are some that have been

17 pronounced and these poor people are awaiting

18 execution. However, I firmly believe that this will not

19 take place because, after all, the supreme act is the

20 constitution and all these other laws are below that,

21 and I believe that this new criminal law that is being

22 prepared now will resolve the issue and this is

23 paradoxical and you have observed that quite correctly.

24 Q. Prior to the abolition by the new constitution and going

25 back to, say, 1992, in what of the republics of the then

Page 9078

1 breaking-up Yugoslavia, if I might call it that, had the

2 death penalty?

3 A. Practically in all republics before 1992 while the

4 Socialist Federal Republic of Yugoslavia existed -- that

5 is the paper you have from my colleagues Vasiljavic and

6 Jankovic -- it is said in all these five or eight laws

7 that existed, the death penalty was instituted in all of

8 them. I must tell you that Slovenia held the record in

9 all of that, in some 30 or 40 years not a single penalty

10 had been imposed. When they had a mass killer who had

11 murdered seven or eight women they were fortunate enough

12 that he was considered to be mentally incompetent. So

13 that is why he was not executed either. That was the

14 pre-war situation. In Serbia and Montenegro today you

15 have the situation I already referred to. At present we

16 have four or five death sentences that were imposed and

17 these poor people are waiting to see what will happen,

18 but they hope the constitution will prevail.

19 I personally think, as a law, and I believe that all

20 present here share that view, that there is nothing more

21 terrible than awaiting the execution of a death sentence

22 and unfortunately in all countries this is a penalty

23 that is awaited for years. It's the worst penalty of

24 all.

25 Q. Yes. I'm just mainly interested in the history of the

Page 9079

1 death penalty. Now, as I understand it, and correct me

2 if I'm wrong, the maximum penalty would be 15 years,

3 because that was a period of time that was considered

4 best to facilitate rehabilitation; is that right?

5 A. I must say that 15 years is certainly one thing.

6 However, all criminological and penological research has

7 shown that any term of imprisonment longer than ten

8 years impairs a person mentally and makes him

9 psychologically mentally handicapped in terms of his

10 further life, but 15 years was the maximum. I imagine

11 that you are aware of the fact that after having served

12 two-thirds of the term due to good behaviour there could

13 be probation or a pardon. So mostly up to 11 years for

14 the gravest delinquents. In practice, however,

15 according to the law, 15.

16 Q. I am not really asking you for your opinion on what you

17 consider to be the best period of time in order to

18 facilitate rehabilitation. I'm really asking you: was

19 the law designed this way because that was considered to

20 be the maximum time?

21 A. You know full well that life and law do not always go

22 hand in hand. According to the law it is 15 years, but

23 during these 40 years I have not encountered a single

24 person in Yugoslavia who served all those 15 years.

25 Usually a person would be released after these 11 years

Page 9080

1 or so. However, sometimes it would happen --

2 Q. Perhaps if I can just interrupt you, Professor. Perhaps

3 you don't know the answer, and if that's right, I will

4 move on?

5 A. In what sense?

6 Q. If I am asking you what is the law --

7 MR. VUJIN: Sorry, but I don't think that this kind of

8 reaction is proper. You have received an answer. The

9 Professor said five times now that 15 years is the

10 maximum sentence according to law?

11 A. I don't know what the problem is. I truly wish I could

12 help you rather than enter into a polemic with you.

13 JUDGE McDONALD: Let's see if we can help. There are three

14 people all at once. I guess the question is; was the

15 law designed to establish a maximum?

16 MR. NIEMANN: Was the law designed, when it enacted a 15

17 year maximum, to -- that period was selected because it

18 was considered to be the maximum period of imprisonment

19 that could be endured if rehabilitation was to be

20 effective.


22 A. First of all, the law says 15 years. That is what

23 I said at the very outset. Whether 15 years facilitates

24 rehabilitation, I'm sceptical. That's my personal

25 opinion, but 15 years is what the law says, but I did

Page 9081

1 not meet a single prisoner who spent 15 years in jail.

2 Then there is 20.

3 Q. I am not asking your opinion of what you consider being

4 the maximum period, Professor. You have come here as an

5 expert on the law and I am asking if you understand the

6 basis of the law on the selection of the period 15

7 years. Now Professor, and I am not in any way

8 attempting to be rude, but if you do not know that and

9 it is perfectly conceivable you don't, then I'll move

10 on?

11 A. To tell you the truth towards the end of my legal career

12 it would be hard to say I couldn't understand such a

13 question. The law says 15 years. That's the fact of

14 the case. I thought it might be clear both to you and

15 to the Trial Chamber when I say what I say.

16 I understood my coming here not just to be an

17 interpreter of the law but to convey to you the spirit

18 of the law of my land. If you don't want that, then let

19 me say there is 15 years and there's 20 years as a

20 substitute for the death penalty. Now why 15 years was

21 chosen? Because of the gravity of the offence, but

22 the entire system of re-education and penology is

23 designed to encourage persons to improve. It would be a

24 terrible feeling if somebody goes to prison and is

25 discouraged from improving. His reward is the gradual

Page 9082

1 reduction of the sentence.

2 Q. I have not asked you that particular part, Professor.

3 JUDGE McDONALD: I just ask you one question. What is the

4 relationship, if you know, between the maximum of 15

5 years and the goal of rehabilitation? What is the

6 relationship, if there is any, between the establishment

7 of a 15 year maximum and the goal of rehabilitation?

8 There may not be a relationship. It may be this 15

9 years was established because that would be the time

10 thought that should be given for those offences that

11 were very grave but not so grave that they deserved the

12 death penalty, but if there is a relationship between

13 that maximum and the goal of rehabilitation, I think

14 that's what Mr. Niemann is asking you. Is that correct?

15 MR. NIEMANN: That's right, your Honour.


17 A. The degree of criminal responsibility and the

18 circumstances of the criminal offence enable the court

19 to pronounce the maximum sentence of 15 years. Whether

20 for that individual 15 years is a period during which he

21 can be re-educated I don't know, but I do know that it is

22 a penalty isolating that person because of the gravity

23 of his criminal offence. Somebody can be re-educated in

24 a year or two and can realise that he did something

25 wrong, and this can be just a nightmare from his past,

Page 9083

1 whereas someone else can never recover. They suffer

2 always.

3 MR. NIEMANN: Thank you, Professor.

4 A. Thank you.

5 Q. Am I right when I say that somebody who would have

6 received the death penalty in Yugoslavia, let us say up

7 to the period of 1992, those persons would not have been

8 considered suitable for rehabilitation and the

9 seriousness of the crime would have been such that it

10 would have dictated that consequence; is that correct?

11 A. I see that you are not inclined to hear my opinions, but

12 I still have to say that I personally do not believe

13 that there is such a person that cannot be -- that

14 condition improve except for mentally retarded people.

15 As for the death penalty it is a very sad phenomenon and

16 the whole of society is against this.

17 Q. Professor, I'm not asking you that question. Do you

18 want me to repeat my question?

19 JUDGE McDONALD: Mr Vujin, I suppose the objection is that

20 the answer is not responsive to the question. Can you

21 answer the question or do you recall the question,

22 Professor? Do you know whether or not when the death

23 penalty was utilised, going back to the period 1992, was

24 it a determination made by the legislator or whatever

25 body passed the law, that that penalty was to be imposed

Page 9084

1 because it was the gravest of offences and it was

2 assumed that persons who commit those offences that are

3 so grave are not capable of being rehabilitated?

4 Rightly or wrongly, was that their feeling?

5 A. It is quite clear that the imposing of a death sentence

6 refers to a person that has to be isolated from society,

7 but not to enter into my opinion, as that doesn't

8 interest you, the death sentence is the total and

9 incorrigible exclusion of man from the society which he

10 is living in, but I have my opinion about that, which

11 I won't convey.

12 MR. VUJIN: I have an objection, your Honour. We are

13 continuing the discussion on the death penalty, and

14 I think that we shouldn't engage in polemics on the

15 death penalty. I do not see where this is leading us

16 to. We in Yugoslavia have been talking about the death

17 penalty for five years and eventually the Federal

18 constitution abolished the death penalty. I do not see

19 what the intention of the Prosecutor is to have this

20 debate on the death penalty, which is not even envisaged

21 by the rules of procedure of the Tribunal. I think it

22 out of place.

23 A. May I --

24 JUDGE McDONALD: Mr. Niemann?

25 MR. NIEMANN: Your Honour, the evidence so far from the

Page 9085

1 Professor has concentrated on the issue of

2 rehabilitation, and so far there has been very little

3 attention paid to any of the other objectives of the

4 sanction that is attached to a penalty. I'm

5 endeavouring to explore this. He himself has told us

6 that the death penalty operated up to 1992 and certainly

7 up until very recently in Serbia and the Federal

8 Republic of Yugoslavia. I'm merely trying to explore

9 the basis of the philosophy of the penalties and how

10 they operate in Yugoslavia. I think it's a perfectly

11 reasonable line of questioning, having regard to the

12 fact that the Defence has been left at liberty to fully

13 explore the issue of a penalty and the penalty most

14 appropriate for rehabilitation.

15 JUDGE McDONALD: I'll overrule your objection, Mr. Vujin.

16 Proceed along. Get us eventually to the point now that

17 the death penalty has been abolished. That's something

18 I am interested in.

19 MR. NIEMANN: I will endeavour to get there, your Honour.

20 So there was up until quite recently a measure of

21 penalty, i.e. the death penalty, that operated in cases

22 where rehabilitation was not considered to be

23 appropriate for the particular offender that was being

24 dealt with?

25 A. I said that, yes. That is common knowledge. But as an

Page 9086

1 opponent of the death penalty I cannot lay still when we

2 are talking about it.

3 Q. I'm sure, Professor, that you will have plenty of

4 opportunities to express your views on that in other

5 forums, but in this forum we are primarily interested in

6 the -- well, I am principally interested in --

7 A. For as long as I remain in good health.

8 Q. Professor, you then said that a 20 year maximum period

9 of imprisonment was introduced and that was for some

10 crimes, and that was in circumstances where the 15 year

11 maximum was not considered appropriate, and in

12 circumstances which followed the abolition of the death

13 penalty; is that right?

14 A. I shall avoid any personal opinions. The legislator

15 envisaged the death sentence, but he left it to the

16 judge to assess. In the event that the whole case

17 points to the adequacy of the death penalty, the

18 legislator has left it to the judge to turn this into a

19 prison sentence. So this is indicative of a change in

20 the orientation of society. The 20 year sentence is an

21 exceptional measure and a substitute for the death

22 penalty. In this way the legislator has shown his

23 attitude towards a measure that cannot be rescinded,

24 that is final.

25 Q. Now I think that you indicated -- well, the gist that

Page 9087

1 I got from your evidence was that the 20 year maximum

2 that has now been introduced was in a sense an interim

3 measure and the matter was still under discussion; is

4 that right?

5 A. No, it's not under discussion. On the contrary, it was

6 the harbinger of the future abolition of the death

7 sentence, because a death sentence cannot be pronounced

8 on a person under 21 years of age and as a substitute in

9 some cases there is the prison term of 20 years. So

10 this was a harbinger of the future abolition of the

11 death sentence.

12 Q. So under Yugoslav policy there is still provision for

13 the offenders to be dealt with where the sentencing

14 disposition of the court is that the punishment should

15 be the primary focus of the sentence rather than

16 rehabilitation; is that right?

17 A. When a death penalty is imposed according to Yugoslav

18 law, the court says: "I sentence you to death by firing

19 squad but because of such and such circumstances that

20 sentence is being amended to 20 years in prison".

21 Q. That wasn't quite a question, Professor. Would you like

22 me to repeat it again for you?

23 A. Yes, please. I find it very strange that we don't seem

24 to be able to understand one another very well today.

25 Q. I regret that, Professor.

Page 9088

1 A. Me, too. Me, too.

2 Q. My question was: the policy is so there is still

3 provision for offenders to be dealt with -- excuse me.

4 I'm trying to -- I will read back my question so I get

5 it precisely. I am not going to be permitted to do so,

6 so I will have to try to remember it. Professor, what

7 I'm saying is that so there's still provision in

8 Yugoslavia -- in the law of Federal Republic of

9 Yugoslavia at least where a court, when it's designing

10 the sentencing disposition for a particular offender

11 places a higher emphasis on the fact that the penalty

12 that should be meted out to a particular individual

13 transcends or is more important than the rehabilitation

14 issues that may otherwise be afforded a particular

15 offender?

16 A. May I answer?

17 Q. Yes.

18 A. In your question there is something that is not quite

19 clear. As the constitution prohibits the death penalty,

20 we have really a moratorium, because the death penalty

21 is an exceptional measure. It was envisaged early on by

22 law. Now it does not exist. It is not handed down.

23 The explanation given by the court, if you are

24 interested in that, I could study the verdicts of

25 courts, but the fact remains that between 15 and 20

Page 9089

1 years there are no penalties in between 15 and 20. 20

2 is only the substitute for the death penalty, and that

3 is what the law says. Now what the court has in mind,

4 what kind of a disposition it has, I can't say.

5 Probably they feel that the death penalty should be used

6 for persons who are harmful to society, but they are

7 substituting that with a 20 year sentence because, after

8 all, all the circumstances are not present for total

9 elimination of the offender.

10 MR. VUJIN: I must object again. I think there is a

11 misunderstanding, your Honour.

12 JUDGE McDONALD: I was waiting for the translation, because

13 the translator -- they can only translate one.

14 I couldn't listen to you because I don't speak

15 Serbo-Croat. Mr. Vujin, the witness answered. You have

16 an objection? On what basis?

17 MR. VUJIN: I apologise. I have an objection, because

18 I think that Mr. Niemann and Mr. Aleksic do not understand

19 one another.

20 JUDGE McDONALD: That's not really the basis for an

21 objection. Let us see if we can end it real quick.

22 They seem to be understanding one another.

23 MR. VUJIN: If I understood the question well, then I would

24 ask that it be repeated to the Professor, so ask him

25 what is the system of sanctions.

Page 9090

1 JUDGE McDONALD: Mr. Vujin, I will overrule your

2 objection. You will have an opportunity on re-direct to

3 in your mind clarify anything that the witness does not

4 understand. He is a Professor of law with many years of

5 experience. He has answered the question. You will have

6 an opportunity.

7 MR. VUJIN: Thank you.

8 JUDGE McDONALD: Professor, let me ask you a question.

9 A. Yes, please.

10 JUDGE McDONALD: When the death penalty was in effect,

11 typically the maximum would be 15 years or the death

12 penalty; is that correct?

13 A. Yes.

14 Q. Then the death penalty was obviously used for those

15 persons who were considered to be the most serious

16 violators and obviously beyond rehabilitation. They

17 were a threat to society and it was determined,

18 rightfully or wrongfully, that --

19 A. Yes, yes.

20 Q. That (inaudible). The judge, though, under certain

21 circumstances could still choose not to sentence the

22 individual to the death penalty but instead give him or

23 her 20 years; is that correct?

24 A. You are absolutely right.

25 Q. Was that then recognition of the fact that there are

Page 9091

1 individuals who must be punished, punished for their

2 crimes as opposed to rehabilitated, but not go so far as

3 to pronounce the death penalty on them? I think that's

4 the essence of Mr. Niemann's question, and if you don't

5 know, you may not know, and then we will go on to

6 another area?

7 A. I think it is impossible not to know that, because there

8 isn't a single criminal lawyer that has not studied the

9 death penalty anywhere or at some time. Therefore, I am

10 again risking that you will say that it is my personal

11 opinion, but it is also the view of the legislator,

12 I think, that the death penalty is collapsed, is a

13 fiasco of all noble feelings and faith in man in any

14 society, and that is why the legislator has limited this

15 to a minimum. I must tell you that in the former

16 Yugoslavia, SFRY, there were maybe one to two death

17 penalties up to 1991 a year throughout Yugoslavia, which

18 has now been reduced to a piece of that former

19 Yugoslavia. Therefore, it is something so exceptional

20 that I don't feel well if I were to say that the judge

21 was being revengeful in his sentencing rather than doing

22 what he had to. I think anyone who hears that a death

23 penalty has been pronounced, he knows that this is a

24 relic which was present in our case until recently

25 unfortunately, but I find comfort in the fact that there

Page 9092

1 are a number of codes in the world left that still

2 retain the death penalty.

3 JUDGE McDONALD: What was the purpose of the 20 year

4 penalty? That was my question. I wasn't talking about

5 the death penalty?

6 A. The purpose, the purpose of the 20 years. The

7 legislator tried to give a last chance to the offender

8 to preserve him from total exclusion from society, from

9 total destruction and removal from society. Let me give

10 you an example. If somebody committed a terribly

11 ruthless criminal offence and then one of the mitigating

12 circumstances was found, those that I mentioned, then

13 the court would sentence him to 20 years in the belief,

14 in the conviction that 20 years is a very severe

15 penalty, and it has a very detrimental effect on the

16 psyche of the prisoner.

17 MR. NIEMANN: Professor, I want to move on to something

18 else, if I may. Professor, is there or was there or has

19 there ever been in the former Yugoslavia or any of the

20 republics of the former Yugoslavia any system sponsored

21 by the government or other organisation of state to

22 assist the victims of crime?

23 A. To assist the victims of crime? Could you explain that

24 for me, please? Which kind of criminals?

25 Q. Is there any mechanism available where people who have

Page 9093

1 been robbed, raped or badly assaulted or otherwise

2 affected by criminals, where they can recover damages

3 for the injuries that they have suffered?

4 A. First, I have to say that in Belgrade in particular, as

5 the capital of our country, we have telephone for raped

6 women, a phone number for women suffering beatings and

7 injuries in the home, and these kinds of services extend

8 assistance to the victims to attain justice. They can

9 accommodate them outside their homes in the case of

10 assault in marriage. There are such things but the

11 standard procedures are lawyers providing counsel and

12 for the poor, the indigent, they are entitled to defence

13 too, and then we have something else attached to all the

14 municipalities. There are committees or some kind of

15 legal assistance it is called, which is given by the

16 municipality free of charge. If I was damaged, for

17 instance, I can go to my municipality, to the office,

18 and ask the employee to compile a complaint on my

19 behalf. That is something that exists and it has just

20 occurred to me. Of course, in psychology departments we

21 also have sections dealing with the victims of war and

22 providing assistance to people who need to be assisted

23 in the removal of stress, which necessarily accompanies

24 war.

25 Q. Professor, you said that you had a seven person rule of

Page 9094

1 someone affected by having to serve a sentence, and the

2 effect that it has. You would agree with me that

3 probably equally the same number of persons or probably

4 more may well be affected if they were victims of

5 crime. Do you agree?

6 A. Certainly. Certainly, and those persons, the victims,

7 or people close to the victims, suffer much more than

8 these other seven that I mentioned. This is just an

9 arbitrary number that I have chosen, but I think it

10 corresponds to the truth more or less.

11 Q. I think you would agree with me also that victims who

12 have been very badly affected by crime may also find it

13 hard to find their place in the sun?

14 A. Certainly. That is why these services exist, those that

15 I have referred to, to overcome stress, but I think it

16 is up to every society to extend a helping hand to those

17 victims, because they badly need that assistance and

18 more quickly than the perpetrators.

19 Q. Thank you, your Honour.

20 JUDGE McDONALD: Mr. Vujin, do you have any re-direct?

21 MR. VUJIN: No, thank you, your Honour. I think that what

22 the Professor was intending to say as a Professor, he

23 said it, and the Prosecutor's question is not so much a

24 matter of law as a matter of other sciences to assess.

25 JUDGE McDONALD: Mr. Vujin, please don't -- that's not

Page 9095

1 appropriate really, to comment on questioning by

2 counsel. We try to be very nice to each other in this

3 courtroom at least.

4 JUDGE STEPHEN: Professor, as I understand it, the

5 possibility of imposing a 20 year sentence only arose in

6 the event of a death penalty being thought to be

7 otherwise justifiable. It was a substitute for the

8 death penalty. My question to you is: what happened

9 after the abolition in parts of Yugoslavia at least of

10 the death penalty? Was it still possible to impose a 20

11 year sentence or not?

12 A. The death penalty and the 20 year sentence, this 20 year

13 sentence is called an alternative penalty in lieu of

14 death. So when the death penalty is abolished, there

15 will be no 20 year sentence, but the new law will

16 probably provide for something like lifelong

17 imprisonment or a substitute for that. I don't know.

18 But there can't be an alternative penalty if there isn't

19 the original penalty.

20 JUDGE STEPHEN: Yes. Exactly. That's the problem that I'm

21 directing my question to, and without speculating on

22 what the future law may be, life imprisonment or

23 otherwise, the position at the moment, I suppose, is

24 that since 20 years was only as an alternative to the

25 death penalty, once the death penalty has gone, 20 years

Page 9096

1 cannot be imposed; that's your understanding, is it?

2 A. Yes. Yes. Certainly. It is an alternative penalty.

3 It is imposed instead of. The judge cannot stand up and

4 say: "I convict you to 20 years". He stands up and

5 says: "I sentence you to death, but because of various

6 mitigating circumstances I am changing that sentence to

7 20 year's imprisonment", now when the death penalty is

8 completely abolished, the legislator will have to find

9 some other solutions. Some way out has to be found.

10 I do not wish to convey my opinion, because there's no

11 need for that now.

12 JUDGE STEPHEN: No, I do not ask you for that. Then we

13 find that the abolition of the death penalty has been

14 piecemeal. It occurred, as I understand it, in about

15 1990 in Slovenia. You say that only two or three years

16 ago it occurred in Serbia. Does that mean that during

17 that piecemeal process you had parts of Yugoslavia where

18 the 20 years could be ordered and other parts where it

19 could not be, or did it depend on whether the offence

20 was a state offence or a Federal offence?

21 A. I was probably not precise enough when I referred to

22 Slovenia. There was the death penalty in Slovenia in

23 the law but it was not pronounced for 20 years.

24 JUDGE STEPHEN: I am only concerned with the law, not what

25 was done?

Page 9097

1 A. It existed. It existed until Yugoslavia broke up. It

2 existed in all the laws of all the republics, but with

3 the change and the formation of the Federal Republic of

4 Yugoslavia, the constitution provides for the abolition

5 of the death penalty, and now it's simply a question of

6 the adjustment of the law. I don't know whether you are

7 interested, but in practice it is very, very rare.

8 JUDGE STEPHEN: Yes, I appreciate that. Can you then give

9 us a date when you say this change took place and the

10 death penalty was abolished for the whole of Yugoslavia,

11 because I had thought that it differed, depending on the

12 particular republic. Can you give me a date when you

13 say ...

14 A. In the SFRY, the former Yugoslavia, up to 1991, shall we

15 say, the death penalty was provided for in all the laws

16 of the republics and all others. Now it is another

17 matter whether it was implemented. But when Yugoslavia

18 broke up after the Badinter Commission and its opinion,

19 the Federal Republic of Yugoslavia passed a

20 constitution. Was it 1992 or 1993? These younger

21 colleagues of mine remember the dates better than me.

22 The constitution was promulgated, which abolished the

23 death penalty in the Federal constitution, but the

24 problem was that Montenegro does not have the death

25 penalty, and Serbia had it from before, and this still

Page 9098

1 hasn't changed. I know it seems very illogical to you,

2 but I'm quite frank here speaking before this Trial

3 Chamber, and I'm telling you the situation as it is.

4 JUDGE STEPHEN: Can I ask you an entirely different

5 question? The Federal Criminal Code, you, of course,

6 are very familiar with. There's an Article in it,

7 Article 142. I don't know if you are familiar with that

8 Article, which deals with various crimes against

9 civilian populations in a situation of war. That

10 appears to mirror Geneva Convention 4. Is there any --

11 that you are aware of -- any similar Article in the

12 Penal Code, the Federal Penal Code, dealing with the

13 crimes against humanity, or dealing with common

14 Article 3 of the Geneva Conventions common to all those

15 conventions? I don't know if you can help me on this?

16 A. The Geneva Conventions, like other humanitarian

17 conventions, that apply in particular to international

18 crimes against humanity and the civilian population, are

19 an obligation for Yugoslavia, as we were a signatory.

20 Being an obligation, they have been incorporated in the

21 criminal code, but those conventions, if I remember

22 well, do not envisage necessarily the death penalty.

23 JUDGE STEPHEN: No, I'm not concerned with the death

24 penalty at all. All I'm asking you is --

25 A. But we are under obligation. We signed that convention

Page 9099

1 and it has been incorporated in the national

2 legislation. That is the standard method of acceding to

3 a convention.

4 JUDGE STEPHEN: If I can put my question perhaps more

5 clearly: do you know whether that category of

6 humanitarian -- international humanitarian law, commonly

7 described as crimes against humanity, have made their

8 appearances in any particular Article of the Federal

9 Penal Code?

10 A. Yes, in the chapter which is headed as you said. In the

11 initial chapters there is mention made of the crimes

12 against humanity. I don't know the exact titles, but

13 there's a whole series of Articles regarding treatment

14 of prisoners, of the wounded, civilian population, the

15 children and all that. All that is absolutely listed in

16 the Criminal Penal Code -- in the Criminal Code.

17 JUDGE STEPHEN: Thank you.

18 JUDGE McDONALD: Just one question, Professor. You

19 indicated in 1992 or in 1993 the Federal Republic of

20 Yugoslavia abolished by constitution at least the death

21 penalty. In the materials submitted by the Prosecution

22 they have made reference to other republics abolishing

23 the death penalty. There's no indication, though,

24 unless I'm wrong, about the status in Bosnia and

25 Herzegovina. Do you know whether Bosnia and Herzegovina

Page 9100

1 has by constitution at least abolished the death

2 penalty?

3 A. Let me say that I'm not familiar with the new

4 legislation of Bosnia-Herzegovina, but I believe that

5 they support the same trend as in Croatia and Slovenia.

6 JUDGE McDONALD: That would be to abolish the death

7 penalty?

8 A. It's like a sequence of events.

9 JUDGE McDONALD: Mr. Vujin, do you have additional questions

10 of the Professor?

11 MR. VUJIN: Your Honour, we would ask for a brief pause if

12 we could consult with our client, Mr. Tadic just for a

13 minute, please. We would ask the indulgence of the

14 court.

15 JUDGE McDONALD: We normally take a recess at 4, and so we

16 will take a recess now. Does that relate to whether you

17 have additional questions of the Professor?

18 MR. VUJIN: Yes.

19 JUDGE McDONALD: Okay. Very good. We will stand in recess

20 until 4.20.

21 (4.05 pm)

22 (Short break)

23 (4.20 pm)

24 (Witness re-enters court)

25 JUDGE McDONALD: Mr. Vujin, do you have additional

Page 9101

1 questions?

2 MR. VUJIN: Yes, your Honour.

3 Re-examination by Mr. Vujin

4 MR. VUJIN: Mr. Aleksic, we have only a few additional

5 questions related to the system of criminal legislation

6 in Yugoslavia. Is it possible in Yugoslavia for one

7 accused person to stand on trial simultaneously for a

8 few crimes vis-à-vis one person? To be clear, I'll take

9 an example. If he was charged with murder, can he be

10 pronounced guilty also of having inflicted suffering or

11 heavy wounds on that same person who was murdered?

12 A. The customary method is that the gravest crime

13 consummates the previous. It would be very strange if

14 somebody murders someone that he is also being tried for

15 having beaten that person or broken his teeth or

16 whatever.

17 Q. So this overall punishment in that case consummates

18 that. I am just interested in whether he can be

19 proclaimed guilty for several crimes or only murder?

20 A. No, only one, murder, because murder consummates all the

21 crimes.

22 Q. So can it be said that the gravest crime he can be

23 charged with consummates all the other crimes he can be

24 charged with in such cases?

25 A. Absolutely. I think the list, the order is

Page 9102

1 indisputable.

2 Q. So bodily injury is less important than life itself, and

3 when a sentence is passed and when there are found --

4 when a verdict is pronounced of being guilty, does the

5 court take into account the responsibility of all

6 concerned and if, for example, the maximum sentence that

7 can be pronounced is 15 years, and if a 13 year sentence

8 is pronounced, do the others involved get lesser

9 sentences?

10 A. Perhaps. I wasn't clear before because everybody is

11 held responsible within the framework of his or her

12 intent, but the total of 15 years cannot be exceeded.

13 That is the ceiling of punishment in Yugoslavia, whereas

14 the other participants, especially if someone gave up

15 voluntarily, the other accomplice can even be freed,

16 whereas the main culprit can get 13 years.

17 Q. Is it possible for the first indicted person to be

18 sentenced to 13 years and the other 7 years and the

19 third one 3 years, etc.?

20 A. That is up to the court. Depending on the extent to

21 which he deserves such punishment, what he did, the

22 degree of culpability, attitude, etc.

23 Q. So whether he was a subordinate or actively involved or

24 only present?

25 A. Certainly all of that is taken into account. There are

Page 9103

1 cases that we call in Yugoslavia in Latin "dolus

2 resource" (sic). We can use somebody to do something

3 without that person being aware of that crime. I as the

4 instigator are going to be more responsible than the

5 person who was used. Sorry, I should just add that the

6 maximum of 15 years cannot be exceeded. That is the

7 ceiling in Yugoslav legislation and the judiciary.

8 Q. Just one more thing, Professor. You said that these

9 figures were outdated. I am interested in the practice

10 in the Federal Republic of Yugoslavia now when imposing

11 criminal sanctions?

12 A. As I said, I cannot give an exact explanation, but if

13 you look at the annual reports for sanctions and crimes

14 that is made by the statistical office of Yugoslavia, by

15 the department for the judiciary within that office

16 shows that the punishment for certain crimes is around

17 the minimum, if I can use that expression, and the

18 minimum.

19 Q. What is the minimum punishment envisaged for crimes

20 against humanity? Is it true it is five years?

21 A. Yes. From five years onwards.

22 Q. Thank you, Professor.

23 JUDGE McDONALD: Mr. Niemann, additional cross?


25 JUDGE McDONALD: A couple of questions, Professor. In

Page 9104

1 response to Mr. Vujin's question regarding sentencing for

2 the gravest crime, so that if you sentenced a person for

3 murder, if he also in the process of murdering, as you

4 said, broke arms or something, obviously you would not

5 sentence for that; is that correct?

6 A. Yes. It is quite correct. He is sentenced for murder,

7 but there are also qualified forms of murder, whether

8 this is done in a particularly ruthless way and whether

9 pain is inflicted upon the victim before death, but what

10 happens in practice regrettably, for example, cutting up

11 a corpse, that is not taken into account to such a large

12 extent, because the victim does not suffer pain.

13 Q. And are you referring to when there is one victim,

14 I gather?

15 A. Yes. Now I'm talking about one victim, but ruthlessness

16 towards several people, towards prisoners, is certainly

17 an aggravating circumstance in our position to the

18 mitigating circumstance that I spoke of, it is only

19 natural in the Criminal Code that there are aggravating

20 circumstances too.

21 JUDGE McDONALD: In the Federal Republic of Yugoslavia are

22 there certain crimes -- let me put it this way -- are

23 there certain acts that could be committed by an

24 individual that may result in more than one crime

25 because of the different elements that crimes have?

Page 9105

1 A. Could you please repeat your question once again.

2 Perhaps the translation wasn't good.

3 JUDGE McDONALD: I'm sure the translation was wonderful.

4 In our statute without delving too deeply, for example,

5 we may have a crime against humanity. We have may also

6 have a crime that is denominated laws or customs of

7 war. An individual commits an act and because of that

8 act a factual determination is made that he has

9 committed the act beyond reasonable doubt and then you

10 look to determine whether or not that act constitutes a

11 criminal offence. You then look at the elements for the

12 offences and you may find that, for example, crimes

13 against humanity may require certain elements and laws

14 or customs of war require different elements. In your

15 system would a person -- could a person be sentenced

16 under crimes for -- for committing a crime against

17 humanity as well as committing a law or custom of war,

18 because the acts, although the same, involve different

19 elements?

20 A. Your question is not an easy one at all, because I must

21 say that until 1991 we had such cases very rarely.

22 Immediately after the Second World War when war

23 criminals were tried, war criminals of the Wehrmacht,

24 Germany, but then there was an interval during which

25 there were not such cases. Sporadically there were

Page 9106

1 cases that a war criminal would be discovered

2 subsequently much later and he would be brought before a

3 court of justice then, but now the situation is

4 different. A distinction should not be made. After all

5 a grave crime consumes a lesser crime. That would be a

6 general rule. I'm sorry for not being in a position to

7 give you a better answer.

8 JUDGE McDONALD: Thank you. Mr. Vujin, do you have

9 additional questions?

10 MR. VUJIN: No, thank you.

11 JUDGE McDONALD: Mr. Niemann?


13 JUDGE McDONALD: I would like to ask the parties, before we

14 excuse the Professor, because perhaps he can be of

15 assistance, I would like you, Mr. Vujin, and you,

16 Mr. Niemann, to provide the Trial Chamber as quickly as

17 possible with information regarding the status of the

18 death penalty in Bosnia and Herzegovina, that is if it

19 was abolished, when it was abolished; if it was

20 abolished by constitution, we would like a citation to

21 the constitutional provision, and if a determination can

22 be made of what is the practice of sentencing since the

23 death penalty has been abolished, if it has been

24 abolished, what that practice is and what evidence there

25 is of that practice. Is there anything else? Okay.

Page 9107

1 How quickly can that be provided do you believe?

2 Monday? Friday?

3 MR. NIEMANN: We are optimistic we may be able to provide it

4 tomorrow.

5 JUDGE McDONALD: An effort will be made to provide it

6 tomorrow by the Prosecution. Please make sure the

7 Defence has a copy of whatever is provided. Then,

8 Mr. Vujin, we would like the position of the Defence as

9 to the material provided by the Prosecutor.

10 Thank you, Professor. You are excused. Thank you

11 very much for coming to us and talking to us about these

12 issues?

13 A. I just have one question, your Honour. The

14 administration of your Tribunal informed me two days ago

15 that I wouldn't be needed by the court and that I could

16 go back tomorrow, because I came here not to address the

17 administration but the Chamber. I would like to hear it

18 from the Chamber whether I can travel back to my country

19 tomorrow. I don't like it when the administration

20 decides about me and prepares my return ticket, etc.

21 I hope that you understand me.

22 JUDGE McDONALD: I do understand you. I share your views.

23 As far as I'm concerned, and I hope I have sufficient

24 authority, you are excused and you may leave tomorrow.

25 The parties have no objection. Thank you very much.

Page 9108

1 A. So I can leave tomorrow?


3 A. Thank you. It was a great honour:

4 (Witness withdraws from court).

5 JUDGE McDONALD: Now, Mr. Vujin, I understand that you do

6 not have additional witnesses at this time except for

7 Dr. Nedopil, who will be here on Friday, and we will hear

8 from him after we complete the initial appearance on

9 Friday, which begins at 10. So in the vicinity of 11

10 o'clock we will begin to hear from him.

11 Now we wanted to hear the positions from counsel

12 as to the appropriate sentence. The Prosecution is to

13 proceed first. Mr. Niemann.

14 MR. NIEMANN: Your Honour, I have the psychiatric reports

15 that we have given to the Defence, and there is

16 agreement that they can be handed up to the court. The

17 translation is satisfactory for their purposes.

18 I tender them now. Because they come from us they may

19 be Prosecution Exhibit 373. In handing them up, your

20 Honour, I note that there is reference in them to

21 witnesses, at least one witness who is given protection,

22 so it may be appropriate, your Honour, if rather than

23 breach your Honours' orders in relation to the witness

24 protection that they be marked confidential.

25 JUDGE McDONALD: They can either be marked confidential or

Page 9109

1 the references can be redacted, however you wish to

2 handle it.

3 MR. NIEMANN: Just confidential would satisfy our

4 requirements, your Honour.

5 JUDGE McDONALD: Is there any objection, Mr. Vujin?

6 MR. VUJIN: No, your Honour.

7 JUDGE McDONALD: Fine. Then Prosecution Exhibit 373 will

8 be admitted and it will be admitted as confidential

9 under seal.

10 MR. NIEMANN: Your Honour, I notice that --

11 JUDGE McDONALD: Excuse me just a minute. (Pause) Yes,

12 Mr. Niemann?

13 MR. NIEMANN: I notice the time is twenty to five. I could

14 well finish by 5.30 but if I am not finished by then,

15 I would not expect to be more than ten minutes beyond

16 that. If your Honours would indulge me, I would prefer

17 to complete my address today if that is possible.

18 JUDGE McDONALD: We would indulgence even if it is more

19 than ten minutes but not more than 15. Take your time

20 and use what time is necessary.

21 MR. NIEMANN: Your Honour, in this situation I do not wish

22 to cover anything that we have referred to in our brief,

23 unless your Honours have questions on any of the matters

24 we raised in the brief.

25 Your Honour, under Article 24, paragraph 2 and

Page 9110

1 Rule 101 of the Rules there is provided that in

2 determining the sentence the Trial Chamber shall take

3 into account, and I mention the relevant matters for

4 these proceedings: the gravity of the offence, the

5 individual circumstances of the accused, mitigating

6 circumstances including co-operation with the Prosecutor

7 and the sentencing practice in the former Yugoslavia.

8 The Trial Chamber is also required to indicate

9 whether multiple sentences are to be served concurrently

10 or consecutively and credits to be given for time spent

11 in custody prior to surrender and prior to trial.

12 I shall now deal with each one of these issues one

13 by one.

14 Turning, firstly, to the gravity of the offence,

15 the convicted person, Tadic, has been found guilty of

16 five counts of war crimes and six counts of crimes

17 against humanity. A crime against humanity is of the

18 same species as genocide and after genocide is the most

19 heinous crime in the jurisdiction of the Tribunal and,

20 of course, one of the most serious crimes that anyone

21 can be convicted of. Under the Nuremberg Charter the

22 penalty for a person convicted of a crime against

23 humanity was either the death penalty or any other

24 penalty deemed just. States which included crimes

25 against humanity in their national criminal laws have

Page 9111

1 almost universally prescribed the most severe penalty

2 permitted in their system for the commission of this

3 offence.

4 In the sentencing decision of the Trial Chamber in

5 Erdemovic at paragraph 28, page 14, the Chamber, when

6 speaking of the seriousness of crimes against humanity,

7 said:

8 "Crimes against humanity are serious acts of

9 violence which harm human beings by striking what is

10 most essential to them: their life, liberty, physical

11 welfare, health or dignity. They are inhumane acts that

12 by their extent and gravity go beyond the limits

13 tolerable to the international community, which must per

14 force demand their punishment. But crimes against

15 humanity also transcend the individual, because when the

16 individual is assaulted, humanity comes under attack and

17 is negated. It is therefore the concept of humanity as

18 victim which essentially characterises crimes against

19 humanity".

20 Professor Bassiouni, when describing the nature of

21 crimes against humanity, said in relation to the

22 Nuremberg Charter:

23 "The Charter establishes a generic criminal

24 category labelled "crimes against humanity" to fit the

25 unforeseen and unforeseeable depredations and only the

Page 9112

1 unbridled nefarious imagination of evil and banal men

2 could have actuated. Indeed, the facts that gave rise

3 to "crimes against humanity" were too barbarous to

4 foresee and thus no specific positive law existed that

5 covered all the misdeeds committed".

6 This is a quote from Professor Bassiouni's book

7 entitled "Crimes Against Humanity in International Law:

8 The Netherlands", Martinus Nijhoff Publishers, (1992),

9 page 149.

10 Count 1, the persecution count, is in our

11 submission a particularly serious crime. It was an evil

12 crime. The convicted person, Tadic, had no reason to do

13 what he did. He did it out of greed, hatred, jealousy

14 and intolerance. Politically motivated, he joined the

15 push for greater Serbia and the Muslim population were

16 in the road.

17 Tadic was two-faced. He portrayed himself as a

18 friend of the Muslims but obviously at all times

19 harbouring a deep hatred of these people who had

20 extended to him the hand of friendship.

21 Clearly he resented deeply being in the minority

22 in the town of Kozarac and waited for the day to arrive

23 when the tables would turn. When the time came with

24 enthusiasm he joined the forces of the Bosnia Serbs and

25 assisted them in the task of ridding the area of the

Page 9113

1 Muslims and Croats.

2 As set out in our tendered declarations marked

3 Prosecution Exhibit P371 and P372, the suffering that he

4 personally was instrumental in causing to these people,

5 his victims, is hard to fully comprehend, but he has

6 been indirectly responsible for contributing to the

7 devastation of the lives of the people in the Prijedor

8 area, and for what egregious crimes were these tragic

9 victims being so cruelly punished? Their crime is they

10 were different. That's all. They were different.

11 A crime against humanity is one of extreme

12 gravity, demanding the most severe penalty. It is the

13 most serious crime on the criminal calendar, and one

14 should, in our submission, approach sentencing as one

15 would ordinarily deal with the most serious crime in the

16 criminal calendar. In some jurisdictions you have

17 mandatory life sentences; in other jurisdictions you

18 have the death penalty.

19 In circumstances where you have multiple murders,

20 then the court can impose multiple life sentences, or

21 order that convicted persons serve the rest of their

22 life in prison, or that the papers be marked "never to

23 be paroled". In most jurisdictions life sentences are

24 substantially reduced by remissions or parole. Thus, a

25 life sentence can mean less than 15 years served, unless

Page 9114

1 the court otherwise orders.

2 It is the position of the Prosecutor that with

3 respect to crimes against humanity one starts with a

4 sentence of life imprisonment. One must consider the

5 possibility of multiple life sentences for multiple

6 convictions of crimes against humanity. Depending on

7 whether the sentence is remitted or paroled, one must

8 consider whether or not the sentences should be served

9 consecutively or concurrently, or expressed differently,

10 whether all the sentences should start and end on the

11 same date. For separate events involving crimes of

12 similar gravity, where the crimes are very serious,

13 there is no reason in our submission consistent with

14 logic why the sentences should be concurrent.

15 The overall offending in this case is not the most

16 serious likely to come before this Tribunal, but it is

17 certainly not to be regarded as minor offending either.

18 The personal culpability however and the evil he

19 perpetrated is one of the most sinister and serious in

20 nature. However, we are not pressing for multiple life

21 sentences, nor are we suggesting that sentences should

22 be served consecutively. It is our submission that with

23 respect to Count 1, your Honours' consideration should

24 commence with a sentence of life imprisonment. In

25 respect to the other crimes against humanity, your

Page 9115

1 Honours might consider imposing a very severe sentence

2 of less than life imprisonment, but for such sentences

3 to be served concurrent with the sentence of life

4 imprisonment. In our submission the war crimes counts

5 should attract a lesser penalty than the crimes against

6 humanity, and these, too, should be concurrent with the

7 other sentences. In relation to all the offences, your

8 Honours may wish to consider making a recommendation

9 that all the sentences should earn remission at the same

10 rate as other prisoners serving similar sentences in the

11 institution where the accused is to serve his sentence

12 should apply.

13 I now turn, your Honours, to the individual

14 circumstances of the accused.

15 At the time of the commission of the crimes

16 charged in the indictment the convicted person Tadic was

17 36 and a half years of age. He was married with two

18 children. He had lived in Kozarac for the most part of

19 his life and he knew most of its inhabitants.

20 In our submission it is not possible for Tadic to

21 paint a picture of himself as a young, inexperienced

22 man, tragically caught up in the horrors of war, from

23 which he could not escape or fail to participate. There

24 is absolutely no evidence to suggest that Tadic had to

25 commit any of the crimes for which he has been found

Page 9116

1 guilty. On his evidence he was a traffic policeman.

2 His wife and family were given privileged status. He

3 did not have to go to the camps at Omarska, Trnopolje or

4 Keraterm and when there, to cruelly beat, torture and

5 depravely molest the prisoners. He did not have to

6 actively and enthusiastically participate in the

7 rounding up, torture and murder of the unfortunate

8 non-Serb victims in Kozarac and then to take from these

9 helpless souls their lives, possessions, their children

10 and their relatives.

11 Nor was Tadic motivated to do what he did because

12 he was compelled to carry out the wishes of the state

13 under threat of punishment. No. He enthusiastically

14 participated in this evil plan of the state as a willing

15 worker, one of Karadzic's henchmen, and in his depravity

16 he sought recognition. He expected to be endowed with

17 gifts and favours by corrupt but grateful officials of

18 an evil administration.

19 There is nothing sinister in Tadic's family

20 background to engender any sympathy. He does not come

21 from a tragic family background. He was not deprived or

22 abused in his youth. He does not appear to have

23 suffered any great personal tragedy in his life, which

24 would cause him to unwittingly stumble into this

25 situation. He came from a solid family background. His

Page 9117

1 father was a respected Second World War hero. Compared

2 to his fellow citizens in Kozarac, he was not

3 underprivileged or discriminated against in any way. He

4 was respected and liked in the community. What then

5 could possibly have motivated him to commit the

6 outrageous crimes for which he has been found guilty?

7 The answer, in our submission, is clear. It was greed

8 and power. If the Muslims and Croats were out of the

9 area, then this meant more for the Bosnia Serbs, and if

10 this meant more for the Bosnia Serbs, then it meant more

11 for Tadic.

12 Accordingly, there is nothing in the individual

13 circumstances or background of Tadic which in our

14 submission would justify a reduction of the sentence the

15 court would otherwise impose.

16 Mitigating circumstances, including co-operation

17 with the Prosecutor.

18 The convicted person, Tadic, has done nothing to

19 co-operate with the Prosecutor. He has shown absolutely

20 no remorse for the crimes that he has committed, nor has

21 he indicated in the slightest way that he is in any way

22 sorry for the terrible tragedy that he has brought upon

23 his hapless victims.

24 This utter lack of remorse or appreciation of the

25 nature of his crimes has continued over the period of

Page 9118

1 the last few days.

2 It is extraordinary that Tadic would continue to

3 portray himself as a victim. This is the individual who

4 was President of the Kozarac SDS, who was given the

5 responsibility for conducting the plebiscite in

6 Kozarac. He actively participated in the attack of

7 Kozarac and the murder and torture of Muslims and Croats

8 from the area. After that he was given what has been

9 referred to as the privileged and safe position of a

10 traffic policeman. He was appointed to the high

11 position in Kozarac with control over the distribution

12 of property and finally appointed as a Serbian Red Cross

13 official, so that he had direct access to all the

14 humanitarian aid coming into Kozarac.

15 Then he claims that he has been persecuted by

16 Prijedor officials. We believe the evidence suggests

17 that was the result of a dispute between greedy

18 officials, nothing that should engender sympathy from

19 this Tribunal.

20 Your Honours, it is instructive to compare the

21 Erdemovic case with this case. Erdemovic, unlike Tadic,

22 has given extensive assistance to the Prosecutor.

23 Erdemovic, unlike Tadic, was prepared to surrender

24 before he was indicted. In fact, unlike Tadic, there

25 was no investigation going on in relation to him at the

Page 9119

1 time he was prepared to surrender. Erdemovic, unlike

2 Tadic, made a full and free confession, without which no

3 prosecution against him would have been commenced at

4 that time. Erdemovic, unlike Tadic, later voluntarily

5 repeated his confession to the Trial Chamber.

6 Erdemovic, unlike Tadic, specifically sought his

7 transfer to The Hague for trial. Erdemovic, unlike

8 Tadic, gave the Prosecutor extremely important

9 information and leads which at the time was otherwise

10 unobtainable. The information Erdemovic gave greatly

11 assisted the Prosecution with on-going investigations.

12 Erdemovic, unlike Tadic, freely gave evidence in a Rule

13 61 hearing against Karadzic and Mladic. Erdemovic,

14 unlike Tadic, was a very young man of 23 years of age

15 when he committed the crime. Erdemovic, unlike Tadic,

16 was the Bosnia Croat in a Bosnia Serb army. Erdemovic,

17 unlike Tadic, was in no way politically motivated to

18 commit the crimes that he did. Erdemovic, unlike Tadic,

19 did not plan to commit the crime. He knew nothing about

20 it until he was on the scene of the crime. Erdemovic,

21 unlike Tadic, did not commit the crime out of hatred or

22 greed. Erdemovic, unlike Tadic, simply obeyed orders

23 under threat of death or punishment. Erdemovic, unlike

24 Tadic, clearly demonstrated that he was disgusted and

25 appalled at the fact that he had participated in such a

Page 9120

1 terrible crime. Erdemovic, unlike Tadic, was convicted

2 and sentenced on only one count of a crime against

3 humanity. Erdemovic was sentenced to ten year's

4 imprisonment.

5 In our submission co-operation with the Prosecutor

6 should be substantially rewarded by giving a significant

7 reduction in the sentence, 50-75 per cent off the

8 sentence than would otherwise be imposed, had it not

9 been for the co-operation, is in some circumstances

10 justified in our view. The Prosecutor of the Tribunal

11 is confronted with a great many more obstacles than that

12 normally encountered by police in domestic settings.

13 The Prosecutor has limited access to the scene of the

14 crime and to many of the potential witnesses. Indeed,

15 in the place where both Erdemovic and Tadic committed

16 their crimes, there was outright hostility at the time

17 towards investigators from the Tribunal. Even

18 unobstructed access to the crime scene involves very

19 expensive and difficult travel from The Hague to the

20 Balkans. Accordingly in the investigations undertaken

21 by the Prosecutor of this Tribunal there are often many

22 missing pieces to the jigsaw that the Prosecutor has

23 enormous difficulty in filling. One co-operative

24 participant such as Erdemovic can save the international

25 community huge sums of money which would otherwise have

Page 9121

1 to be spent on lengthy and detailed investigative work.

2 Very important information can mean the difference

3 between a prosecution or not.

4 Further, the Prosecution has much difficulty in

5 getting the accused persons arrested and brought before

6 the Tribunal for trial.

7 Strong consideration should be given to those who

8 voluntarily surrender. The Prosecution sees great value

9 in sending a clear signal to non asserted persons that

10 people who co-operate with the Tribunal in terms of

11 providing information, who voluntarily confess to their

12 crimes, plead guilty, voluntarily surrender, will get

13 favourable considerations for those acts and may receive

14 a significant reduction in the sentence they would

15 otherwise receive.

16 More importantly, such co-operation also says a

17 great deal about the true character of an individual and

18 the remorse, if any, he feels for the crimes that he has

19 committed. The Prosecutor takes the view that people

20 such as Tadic, who have not done any of these things,

21 cannot expect any or any significant mitigation of the

22 sentence. In our submission, the convicted person,

23 Tadic, should get no mitigation of his sentence under

24 this heading.

25 I turn now, your Honours, to the sentencing

Page 9122

1 practice in the former Yugoslavia.

2 In the former Yugoslavia serious crimes of this

3 nature could in 1992 attract the death penalty.

4 Subsequently the death penalty has been abolished.

5 Prior to the abolition of the death penalty the

6 prevailing attitude to sentencing was that life

7 imprisonment was considered too cruel a treatment.

8 Presumably the death penalty was not so considered. In

9 any case a serious offender received the death penalty

10 or 15 year's imprisonment.

11 Following the abolition of the death penalty,

12 judges were given the option of sentencing an offender

13 to a term of imprisonment of up to 20 years, but this

14 was considered to be an exception. Accordingly, when

15 the Tribunal created its Rules of Procedure and

16 Evidence, there was no power for a court in the former

17 Yugoslavia to impose a life sentence on an offender, no

18 matter how serious the offending.

19 This matter was specifically addressed by the

20 court, by the Chamber in the Erdemovic case. In

21 Erdemovic in the sentencing decision, page 33 --

22 paragraph 33, the Trial Chamber reviewed the meaning of

23 the reference to "recourse to the general practice

24 regarding prison sentences in the courts of the former

25 Yugoslavia" as provided for in Article 24(1) and Rule

Page 9123

1 101 (A). The Chamber noted that at the time of the

2 commission of the crimes the republics had no equivalent

3 provisions to crimes against humanity. However,

4 articles 141-156 of Chapter 14 of the Federal Criminal

5 Code of the former Yugoslavia covered inter alia

6 genocide and war crimes perpetrated against the civilian

7 population.

8 The Chamber in Erdemovic then noted that the

9 minimum terms of imprisonment that could be imposed for

10 crimes was five years with a maximum of 15 years with a

11 provision of a term of 20 years that could be imposed if

12 substitution of the death penalty or for aggravated

13 instances of the offence.

14 The Trial Chamber then noted that there was no

15 direct equivalent of the Tribunal's Article 5 in the

16 Criminal Code of the former Yugoslavia, and then

17 concluded that the only principle that should be given

18 weight when examining the Criminal Code of the former

19 Yugoslavia is that for offences of this kind the most

20 severe penalty available should be applied. That's at

21 paragraph 35, if your Honours please.

22 The Trial Chamber then observed there was no court

23 decision from the former Yugoslavia available for crimes

24 of this nature that could usefully assist the Tribunal

25 in drawing conclusions as to their sentencing practices.

Page 9124

1 The argument that the reference to the general

2 practice regarding prison sentences in the former

3 Yugoslavia was to overcome any objections arising due to

4 the principle of "nullum crimen" was rejected by the

5 Chamber on the basis that such an argument defeats the

6 universal nature of these crimes. Your Honours said

7 that at paragraph 38.

8 The trial chamber then said that the reference to

9 the general practice in Yugoslavia was for guidance

10 purposes only and was not to be considered binding. It

11 said:

12 "Whenever possible, the international Tribunal

13 will review the relevant legal practices of the former

14 Yugoslavia, but will not be bound in any way by those

15 practices in the penalties it establishes and the

16 sentence it is imposes for the crimes falling within its

17 jurisdiction".

18 That's at paragraph 40, if your Honours please.

19 They then go on to say with respect to the overall

20 aims of punishment, different national jurisdictions

21 have different objectives in mind when determining what

22 the appropriate punishment for a crime should be. In a

23 national context, the state has a particular interest in

24 trying to achieve the rehabilitation of its citizens who

25 have fallen foul of the law. I am going on to my

Page 9125

1 submission as opposed to what your Honours say. This is

2 so because there is a particular need to facilitate the

3 smooth running of society. Accordingly, when the

4 paramount interest, having regard to a particular

5 criminal and his crimes, is the protection of society,

6 the death penalty might be imposed, should it be

7 available. If protection of society is not of such

8 importance, then rehabilitation of the individual may

9 play a more important role.

10 In the former Yugoslavia, the principle of

11 sentencing that seems to have prevailed was that if the

12 only consideration was to protect society from the

13 criminal, then the death sentence when the death

14 sentence was available was the appropriate sentencing

15 disposition, but if this was not the case, then life

16 imprisonment was not considered conducive to

17 rehabilitation, so the 15 year maximum sentence was

18 devised. Any sentence for longer than 15 years was

19 considered to be inhumane. However, after the abolition

20 of the death penalty, provision was made for a 20 year

21 sentence. As we have heard in evidence today, your

22 Honours, the position seems to be in a statement of

23 flux, moving from the period when the death penalty was

24 in operation to something else, but we don't know what

25 that is.

Page 9126

1 One must also consider that the sentencing

2 practices, the penal systems and conditions of

3 confinement are developed and implemented pursuant to

4 that particular society's norms and values, and one

5 cannot automatically, in our submission, transpose those

6 to the International Tribunal, whose obligation is to

7 enforce the values, norms and expectations of the wider

8 international community.

9 When it comes to devising an appropriate sentence

10 and policy for this Tribunal, in our submission

11 rehabilitation would seem to be the least appropriate

12 aim of any sentencing policy. The Tribunal cannot

13 adequately supervise or devise suitable rehabilitative

14 programmes for persons that it imprisons, nor is it

15 reasonable if such programmes were devised to impose any

16 such programmes on a state good enough to offer its

17 prison facilities for the purposes of imprisoning

18 convicted persons. That is not to say that convicted

19 persons by this Tribunal will not ultimately be

20 rehabilitated. Clearly we all hope that this will be

21 so, but our submission is it clearly should form no part

22 or no significant part of the sentencing regime the

23 Tribunal adopts.

24 While there are no doubt other sentencing

25 objectives that may appropriately play a role, clearly

Page 9127

1 in our submission the dominant centre piece of any

2 sentencing policy devised by this Tribunal should be the

3 principle that criminologists refer to as the principle

4 of "just desserts", punishment. It seems to us that if

5 one of the primary functions of this Tribunal is to

6 contribute to a restoration of true peace in the former

7 Yugoslavia, and the re-establishment of their fractured

8 society, then this will not be achieved, in our

9 submission, if the Tribunal concerns itself with the

10 speculative concept of the rehabilitative needs of the

11 individual perpetrators and pays insufficient regard to

12 the need to ensure that those responsible for these

13 heinous crimes are brought to justice and dealt with

14 according to law.

15 In our respectful submission, the most effective

16 way in which this can be assured in relation to the

17 convicted person Tadic is to impose upon him a life

18 sentence of imprisonment. They are our submissions,

19 your Honour.

20 JUDGE McDONALD: Thank you, Mr. Niemann.

21 JUDGE STEPHEN: Mr. Niemann, I have two questions. The

22 first one stems really from your suggestion that life

23 imprisonment was appropriate in relation to paragraph 1,

24 persecution.

25 MR. NIEMANN: Yes, your Honour.

Page 9128

1 JUDGE STEPHEN: You then went on to say that there should

2 be remissions granted similarly to those remissions that

3 are granted to other prisoners in the particular jail

4 system in which the accused found himself.

5 MR. NIEMANN: Yes, your Honour.

6 JUDGE STEPHEN: How do you work that out? Remission may be

7 of one-third of the sentence or so many years. How does

8 that accord with a life sentence? Obviously you can't

9 have a proportion of it remitted.

10 MR. NIEMANN: Yes, your Honour. Your Honour, in some

11 jurisdictions now, as your Honour is probably aware,

12 there is the traditional life sentence, where someone

13 serves it for life.

14 JUDGE STEPHEN: It means much less.

15 MR. NIEMANN: It means nothing like that any more. It means

16 you serve a period of time and after a period of time

17 you are entitled to a remission. Generally speaking --

18 I mean, we have not done a complete survey, but in a

19 number of jurisdictions it can mean something like 15

20 years and less, but if, for example, a person is

21 convicted -- sentenced to 15 years and at the same time

22 earns remissions, well, that might mean ten years or

23 nine years or something like that, if remissions apply.

24 The only submission that we can make in this, because we

25 have no idea where the accused person will be sent, is

Page 9129

1 that if he is in an institution where the prisoners

2 beside him are earning remissions of their sentence for

3 their life sentence or whatever is equivalent in that

4 jurisdiction, then our submission is that in this case,

5 and we are not suggesting that it's something that

6 should universally apply, but in this case we say that

7 this particular convicted person should enjoy the

8 benefit of remissions that his co-fellow prisoners would

9 be earning, other than him go there and to be alongside

10 prisoners convicted of life imprisonment and for him not

11 to earn remissions.

12 JUDGE STEPHEN: Yes, although the imprisonment for life,

13 you suggest that we should impose what it means,

14 I gather.

15 MR. NIEMANN: No, I am not asking your Honour to do that in

16 the sense that we are saying if remissions are available

17 to this accused per force of the fact that he goes to an

18 institution where remissions are earned, and in most

19 institutions that is certainly becoming the norm, then

20 we are saying that the Chamber may care to recommend

21 that he should earn remissions.

22 JUDGE STEPHEN: Yes. My point, I think, is this: he may

23 well be in a system which regards life as meaning 12

24 years or 15 years, whereas the sentence that you are

25 suggesting we should impose would mean for the term of

Page 9130

1 his natural life. The two are not comparable. I don't

2 see how you can work in a remission system applicable to

3 life meaning 12 or 15 years to a term of natural life

4 sentence.

5 JUDGE McDONALD: Let me just add a little bit to that,

6 maybe perhaps a little complexity. The Tribunal

7 presently has agreements only with two countries, Italy

8 and Finland, I believe, that will accept persons that

9 are convicted by the Tribunal and the agreement, of

10 course, speaks for itself, but there are certain

11 limitations that the Tribunal has attempted to impose,

12 but there are certain limitations that we cannot

13 impose. So we need to keep that in mind in terms of any

14 recommendation that we may make, because the agreement

15 itself I would imagine would have to be complied with,

16 and if any recommendation that we make would be contrary

17 to that, there would be a problem. With respect to

18 remissions, though, if, for example -- you use the term

19 "remission". In my system we don't usually use the

20 word "remission". We think of that as something the

21 court might do unilaterally and that is remit or lower

22 the sentence. You are simply requesting we would

23 sentence to life imprisonment, and then the accused

24 would then serve in this instance either in Finland or

25 Italy, unless I'm not aware of another agreement, and

Page 9131

1 then if that state has a system of remitting or reducing

2 life imprisonment to 15 years, assuming good behaviour,

3 then you are suggesting that the same rule apply to

4 Mr. Tadic. Is that not so?

5 MR. NIEMANN: Yes, in that institution.

6 JUDGE McDONALD: All we would do would be sentence and then

7 the rules applicable in that institution would also

8 apply to Mr. Tadic.

9 MR. NIEMANN: That is what I am saying.

10 JUDGE McDONALD: The term remission is a little problematic

11 to me.

12 MR. NIEMANN: It may be a problematic term.

13 JUDGE STEPHEN: I still don't follow you. Take the case of

14 Finland. Assume life means 15 years. The sort of

15 remission I thought you were talking about was that

16 person so sentenced would probably not serve 15 years

17 because there would be remissions and they might only

18 serve seven years. Is it the reduction of our term of

19 natural life to 15 years you are talking about, or the

20 benefit of the further reduction that is granted to

21 those who have got a Finnish sentence of life, which

22 means 15, but, in fact, they get out after seven. They

23 are two differences.

24 MR. NIEMANN: I understand. In some jurisdictions your

25 Honour, what happens is the person is sentenced to life

Page 9132

1 imprisonment and then the court orders there be a

2 non-parole period, that the person serve a certain

3 number of years and there be no parole during that

4 period. That reduces it to an actual figure so that the

5 convicted person knows that after this period they will

6 get paroled. In addition to that -- in other

7 jurisdictions the court doesn't make such an order. It

8 simply imposes a period of life imprisonment and then

9 the local administrative prison authorities or justice

10 department or whatever then itself determines parole.

11 It interviews the prisoner and grants parole after a

12 certain period. That can also apply to life sentences

13 unless, of course, the court has made an order that he

14 is never to be paroled or released, whichever way the

15 court expresses itself. Now in addition to that

16 prisoners can have the sentence reduced by prison

17 authorities by remissions for good behaviour, so that

18 when a person is in prison there is an incentive, as it

19 were, for the prisoner to behave and to rehabilitate.

20 Now what we are saying is that we understand

21 there's no provision for your Honours to impose a

22 non-parole period, but if there is a regime in place at

23 that institution which would permit a reduction of the

24 sentence either by a combination of parole or just

25 straight out remissions, then we submit in this case,

Page 9133

1 and we are selective in this, that the accused person,

2 Tadic, should have the benefit of that, and we say it

3 for two reasons: one, because it is not the most

4 serious offending that is going to come before this

5 Tribunal, and we submit that this would be some

6 recognition of that, not moving away from the fact that

7 we submit that a sentence of life imprisonment is the

8 only appropriate sentencing disposition, but this would

9 give some measure of reduction of that, and in addition

10 to that, it is better for the convicted person in an

11 institution side by side with other prisoners who have

12 committed offences in that society to be on an equal

13 footing, to allow that person to have the sentence

14 reduced according to the regime that applies there. We

15 submit in relation to this convicted person, that is a

16 measure that is appropriate, having regard to his

17 offending.

18 Now whether it is achievable or whether the state

19 that takes the person is prepared to do that is another

20 question but it seems in our submission not

21 inappropriate to make a recommendation, if your Honours

22 are so disposed to do so.

23 JUDGE STEPHEN: Well, thank you. That was my first

24 question. I had a second one. I noticed that in

25 questioning the last witness and again in your oral

Page 9134

1 submissions you said that the -- it was after the

2 abolition of the death penalty in the former Yugoslavia

3 that the 20 year term was conceived as an alternative.

4 My understanding, I must say, was that the alternative

5 20 years long preceded the abolition of the death

6 penalty and went hand in hand with it at the time when

7 it existed. Is that not so?

8 MR. NIEMANN: I confess, your Honour, I am no expert in

9 their law but my understanding of the law was the 20

10 years was introduced as a late measure.

11 JUDGE STEPHEN: After the abolition.

12 MR. NIEMANN: Perhaps I might just ... would your Honours

13 excuse me a moment? (Pause.) I may well have misspoke,

14 your Honours, and for that I apologise. It appears

15 there was a period of time when both the 20 year period

16 and the death penalty were standing side by side. What

17 I cannot assist your Honours with at the moment but I

18 will endeavour to do so is when that came in and for

19 what period.

20 JUDGE STEPHEN: Those dates would be very useful to us.

21 Thank you.

22 MR. NIEMANN: Unless there are any other matters, your

23 Honours ...

24 JUDGE McDONALD: Mr. Vujin, would you like to begin your

25 submissions, please?

Page 9135

1 MR. VUJIN: Your Honour, considering the time -- I'm sorry.

2 Considering that it is ten minutes to the time envisaged

3 for adjournment and in view of the fact that the Defence

4 could use some consultations, we would beg to have the

5 opportunity to begin our statement tomorrow. We believe

6 there will be enough time for us to complete it.

7 JUDGE McDONALD: Every day we have been together, Mr. Vujin,

8 you have asked for us to adjourn early. If we were in a

9 trial that lasted seven months, I suppose if you added

10 up all of that time, it might last for several weeks

11 that we would lose but we are not in that situation.

12 MR. VUJIN: It was not so much on our account.

13 JUDGE McDONALD: We are not in that situation and we are

14 trying to be flexible. So we will adjourn and resume

15 tomorrow at 2.30 with the Defence submissions.

16 (5.20 pm)

17 (Hearing adjourned until tomorrow afternoon at 2.30 pm)

18 --ooOoo--