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The Hague, 3 January 1997
Erdemovic case: appeal against the sentence
An appeal was filed on 23 December 1996 by the Defence counsel of Drazen ERDEMOVIC, sentenced on 29 November 1996 to 10 years imprisonment by Trial Chamber I for a crime against humanity.
The Defence counsel, Jovan Babic, explains in the preliminary remarks that he feels that it is his "duty" to file an appeal, as the sentence pronounced by Trial Chamber I was the "first sentence passed for a crime against humanity since the Nuremberg trials", "attracted special interest", and "may set a precedent". Therefore, "it is (...) indispensable to have the established facts and their supporting arguments, as well as the legal conclusions in the sentence, seriously reviewed and evaluated in detail once again".
THE APPEALS'S GROUNDS
The appeal is based on the three following grounds:
1. "erroneous and incomplete establishment of facts which led to an erroneous application of law";
2. "erroneous application of law which has influenced the validity of the sentence" and,
3. "decision on the penalty".
1. Facts erroneously and incompletely established
First, concerning "objective elements", the Defence states that it "does not call into question the facts established in the sentence". However it disagrees with "the fact presented in the sentence" that "members of the 10th Sabotage Detachment executed another 500 Muslim civilians that same day in the Cultural Centre in Pilice", based on the reason that "Erdemovic did not say that in any of his seven statements". The Defence opposes this assertion because it "believes that this incorrect assertion had a major influence on the Tribunal's assessment of the gravity of the overall responsibility of the accused".
Second, the Defence refers to two "subjective elements", namely the rejection by the Judges of extreme necessity and the arguments of the Defence relating to the mental state of the accused at the time of the crime. The Defence states that "the accused Erdemovic found himself under the influence of overwhelming mental coercion which exceeded his powers and which he could not withstand", and that he "was not in command of his senses at the time the crime was committed and that he did not act in a premeditated way. In case of doubts it may have had as to such a conclusion, the Tribunal should have taken into account additional evidence: the report of the expert commission of psychiatrists and psychologists on the mental state of the accused at the time of the crime".
Third, regarding the question of superior orders, the Defence critisises the reference made by the Chamber to the principles of the Nuremberg trials because they are "not adequate". According to the Defence "the Tribunal did not make a realistic comparison of the case being tried and the cases tried in Nuremberg. The major criminals were tried in Nuremberg, and not the ordinary German soldier, while here the one who has been tried is, precisely, an ordinary, used and abused soldier of one side".
2. The application of law
According to the Defence, "in the absence of codified international legal regulations", the Chamber should "have accepted the universal provisions from the national laws of European countries with which the legislation of FR Yugoslavia conforms". The Defence concludes that "the Tribunal has, in this case, wrongly applied the law by failing to reach a legal conclusion (...) that this is a typical example of extreme necessity and of a perpetrator who at the time of committing the act was not mentally competent and that no premeditation existed, and by failing to remit the sentence of the accused Erdemovic".
3. The penalty
The Defence is of the opinion that "the numerous mitigating circumstances in favour of the accused were insufficiently taken into account". It rejects the reference made by the Judges to the Nuremberg sentence because "ordinary German soldiers (...) were not tried" and "acts of the major criminals from Nuremberg are not comparable to the act of the accused Erdemovic". The Defence regrets that "this Tribunal has opted for a much harsher sentence for the accused Erdemovic than the one meted out to some of the major criminals of the Second World War", which is according to it "incomprehensible and unjust". The Defence concludes that the Chamber should have taken "as the basis of the sentence the minimum penalty prescribed by the Criminal law of Yugoslavia for the criminal act of war crime against civilian populations (...) which is 5 years, and also mitigating that sentence because all the conditions therfor exist".
The Appeals Chamber which will hear the appeal in this case was constituted by President Cassese on 24 December 1996. It will consist of Judge Cassese (Presiding), Judge Li, Judge Stephen, Judge DeschÍnes and Judge Vohrah.
No hearing date has been set yet. The next step is the response of the Prosecutor.
International Criminal Tribunal for the former Yugoslavia
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