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1 Friday, 4 February 2005
2 [Appeal Judgement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4.32 p.m.
6 JUDGE MERON: Would the court come to order and please sit down.
7 Good afternoon to the interpreters first. I want to make sure
8 that everyone is in his or her place.
9 Good afternoon to the Prosecution, to the Defence, and to the
10 accused.
11 Mr. Registrar, I would like you to call the case that we are
12 hearing this afternoon.
13 THE REGISTRAR: Good afternoon, Your Honours. Case Number
14 IT-94-2-A, the Prosecutor versus Dragan Nikolic.
15 JUDGE MERON: Thank you, Mr. Registrar.
16 I would now call for the appearances of the parties. The Defence
17 first.
18 MS. RADOSAVLJEVIC: Your Honour, for Mr. Dragan Nikolic, Tanja
19 Radosavljevic as counsel.
20 JUDGE MERON: Thank you very much.
21 Now appearances for the Prosecution, please.
22 MR. McKEON: Your Honours, good afternoon. Appearing for the
23 Prosecution, Mark McKeon with co-counsel Susan Lamb and Steffan Wirth, and
24 our case manager Lourdes Galicia. Thank you.
25 JUDGE MERON: Thank you.
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1 I would now like to explain how we are going to proceed. As the
2 registrar announced, the case on our agenda is the Prosecutor versus
3 Dragan Nikolic. As was stated in the Scheduling Order of 1 February 2005,
4 today's hearing for the delivery of the judgement is taking place pursuant
5 to Rule 15 bis (A) of the Rules of Procedure and Evidence in the absence
6 of one of the Judges of the Chamber, Judge Fausto Pocar, who is
7 unavailable due to authorised Tribunal business.
8 At a plea hearing held on 4 September 2003, Mr. Nikolic pleaded
9 guilty to counts arising out of events that took place at the Susica Camp
10 near Vlasenica in Eastern Bosnia and Herzegovina. Based on a confidential
11 joint plea agreement submission filed by the parties, the Trial Chamber
12 entered a single conviction against Mr. Nikolic for Count 1 of the
13 indictment, persecutions as a crime against humanity. That conviction
14 incorporated Count 2, murder as a crime against humanity; Count 3, rape as
15 a crime against humanity; and Count 4, torture as a crime against
16 humanity. The plea agreement reached by the parties recommended a
17 sentence of 15 years' imprisonment; the Chamber sentenced Mr. Nikolic to
18 23 years' imprisonment. Mr. Nikolic appealed, and this Appeals Chamber
19 held a hearing on Mr. Nikolic's appeal on 29 November 2004.
20 Following the practice of the Tribunal, I will not read out the
21 text of the judgement except for the disposition. Instead, I will
22 summarise the issues on this appeal and the reasoning and rulings of the
23 Appeals Chamber. I emphasise that this is only a summary, and that it
24 forms no part of the judgement. The only authoritative account of the
25 Appeals Chamber rulings and of its reasons is the written judgement,
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1 copies of which will be made available to the parties and to the public at
2 the conclusion of this hearing.
3 The relevant provisions on sentencing are Articles 23 and 24 of
4 the Statute and the Rules 100 to 106 of the Rules of Procedure and
5 Evidence. Both Article 24 of the Statute and Rule 101 of the Rules
6 contain general guidelines for a Trial Chamber to take into account in
7 sentencing. Those general guidelines amount to an obligation on the Trial
8 Chambers to take into account the following factors in sentencing: The
9 gravity of the offence and the individual circumstances of the convicted
10 person, the general practice regarding prison sentences in the courts of
11 the former Yugoslavia, and aggravating and mitigating circumstances.
12 Sentencing appeals, as with all appeals to the Appeals Chamber from a
13 judgement of a Trial Chamber, are not trials de novo. The role of the
14 Appeals Chamber is limited to correcting errors of law invalidating a
15 decision and errors of fact which have occasioned a miscarriage of
16 justice.
17 Trial Chambers are vested with broad discretion in determining an
18 appropriate sentence, due to their obligation to tailor the penalties to
19 fit the individual circumstances of the accused and the gravity of the
20 crime. As a general rule, the Appeals Chamber will not revise a sentence
21 unless the Trial Chamber has committed a "discernible error" in exercising
22 its discretion.
23 The Appellant raises in the present case seven grounds of appeal,
24 which the Appeals Chamber will now briefly address in turn.
25 Under his first ground of appeal, the Appellant principally argues
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1 that the sentence rendered by the Trial Chamber is excessive in comparison
2 with other sentences rendered by the International Tribunal for the former
3 Yugoslavia and the International Tribunal for Rwanda. It is clear from
4 the Tribunal's case law that while guidance may be provided by previous
5 sentences rendered before the two International Tribunals, when
6 differences are more significant than similarities, or when mitigating and
7 aggravating factors differ, different sentencing might be justified.
8 Additionally, even in cases where the offences are the same and were
9 committed in substantially similar circumstances, Trial Chambers have an
10 overriding obligation to tailor a penalty to fit the individual
11 circumstances of the accused. As a result, a comparison is therefore not
12 only limited but also not necessarily a proper avenue to challenge a Trial
13 Chamber's finding in exercising its discretion to impose a sentence.
14 In the present case, the Appellant merely submits that his
15 sentence falls outside a clear and unambiguous pattern of sentencing; he
16 does not successfully compare his case with one or more cases comprising
17 the same offence and substantially similar circumstances. In any event,
18 the Appeals Chamber finds that the Trial Chamber did consider previous
19 sentencing practices and finds that the Appellant's arguments do not show
20 that the Trial Chamber committed a discernible error in the exercise of
21 its sentencing discretion by wrongly assessing the particular
22 circumstances of his case.
23 Under his second ground of appeal, the Appellant submits that the
24 Trial Chamber erred in its assessment of the aggravating factors. He
25 raises three arguments related to the Trial Chamber's findings.
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1 First, with regard to the enjoyment the Appellant derived from his
2 criminal acts, the Appeals Chamber finds that, contrary to the Appellant's
3 submission, there was clear evidence before the Trial Chamber that he did
4 enjoy exercising his power over detainees through depraved acts. The
5 testimony of Witness SU-032 that he "enjoyed himself while he was beating
6 people" is a sufficient basis to characterise the Appellant's conduct as
7 especially aggravating. The Appeals Chamber finds that the Trial Chamber
8 did not commit any discernible error in concluding that he "apparently
9 enjoyed his criminal acts."
10 Second, with regard to the finding of the Trial Chamber that, due
11 to their seriousness and particular viciousness, the beatings charged
12 under the crime of torture amounted to "the highest level of torture,
13 which has all the making of a de facto attempted murder," the Appeals
14 Chamber finds that the Appellant has not shown that the Trial Chamber
15 equated the offence of torture with the offence of attempted murder. The
16 Trial Chamber accordingly did not commit any error of law, and only
17 intended to reflect the gravity of the beatings.
18 I turn now to the alleged error of fact raised by the Appellant,
19 that the Trial Chamber's above finding was not supported by any evidence.
20 The Appeals Chamber considers that while the Trial Chamber erroneously
21 qualified the beatings underlying the crime of torture as having "all the
22 making of a de facto attempted murder," it was reasonable to conclude, on
23 the basis of the evidence before it, that due to their seriousness and
24 particular viciousness, the beatings underlying the crime of torture
25 amounted to the highest level of torture as an aggravating factor. Having
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1 determined that the Trial Chamber correctly concluded that the gravity of
2 the beatings was to be taken into account as an aggravating factor in
3 assessing the Appellant's criminality for acts of torture, the Appeals
4 Chamber does not consider that the decision of the Trial Chamber's
5 erroneous characterisation of the beatings as having all of the making of
6 "de facto attempted murder" moderates the nature as a whole of the
7 aggravating factors.
8 Third, with regard to the Appellant's argument that the Trial
9 Chamber's reference to "all the accepted aggravating circumstances"
10 implies that it considered that all parties agreed as to what was to be
11 considered as aggravating factors capable of enhancing the seriousness of
12 the offences, the Appeals Chamber finds that the aggravating factors
13 retained by the Trial Chamber were those it itself accepted after its
14 evaluation of the circumstances of the case. Accordingly, the Appellant's
15 second ground of appeal is dismissed.
16 Under his third ground of appeal, the Appellant asserts that the
17 Trial Chamber erred when it held that individual deterrence had no
18 relevance in his case and also erred by giving insufficient weight to his
19 guilty plea and his remorse as mitigating factors.
20 The Appeals Chamber notes that the Trial Chamber did consider
21 individual deterrence as a fundamental principle to take into
22 consideration when imposing sentence. With regard to his guilty plea, the
23 Appellant argues that the Trial Chamber did not consider that his guilty
24 plea avoided a lengthy trial, spared the witnesses the ordeal to give
25 evidence, and also encouraged others to come forth.
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1 In the present case, the Trial Chamber did give due consideration
2 to this factor. The Appeals Chamber emphasises that it considered that
3 the avoidance of a lengthy trial, while an element to take into account in
4 sentencing, should not be given undue weight.
5 With regard to the Appellant's argument that the Trial Chamber
6 failed to consider that his guilty plea also spared many witnesses the
7 ordeal to give evidence, the Appeals Chamber finds that the Appellant has
8 overlooked the finding of the Trial Chamber that by pleading guilty before
9 the commencement of the trial, he has "relieved the victims of the need to
10 open old wounds." Therefore, this argument is unfounded.
11 I turn next to the Appellant's argument that the Trial Chamber
12 erred in acknowledging that he "expressed the hope that all three parties
13 to the conflict would be encouraged to assume their part of the
14 responsibility for the terrible crimes." The Appeals Chamber finds in
15 this respect that the Trial Chamber was under no obligation to expand
16 further on these incentives for guilty pleas and did not err in its
17 discretion to impose sentence.
18 I now turn to the Appellant's argument that the Trial Chamber
19 erred because, while acknowledging the particular importance of remorse as
20 a mitigating factor, it considered this factor "at best perfunctorily."
21 The Appeals Chamber notes that the Trial Chamber, on the contrary, treated
22 this factor as "specifically important," and in fact clearly considered
23 the Appellant's remorse as one of the mitigating circumstances entailing a
24 substantial reduction of sentence. The Appellant's argument in that
25 respect is therefore unfounded.
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1 The Appellant argues next that the Trial Chamber should have
2 requested additional assistance from the parties with regard to the extent
3 of his cooperation, instead of relying on the Prosecution's assessment in
4 that respect. The Appeals Chamber does not see how the Trial Chamber
5 failed to fulfil its obligation pursuant to Rule 101(B)(ii) of the Rules
6 to consider his cooperation with the Prosecution as a mitigating factor.
7 With respect to the Appellant's further argument that the Trial Chamber
8 failed to ascribe sufficient weight to his cooperation, the Appeals
9 Chamber did not find any error in the Trial Chamber's assessment of the
10 weight to attach to this mitigating factor. The Appellant's third ground
11 of appeal is dismissed.
12 Under his fourth ground of appeal, the Appellant alleges that the
13 Trial Chamber committed two errors. He argues that the Trial Chamber gave
14 no or insufficient weight to the sentencing practices in the former
15 Yugoslavia and also that the Trial Chamber rather had recourse to the
16 sentencing practices of countries other than the former Yugoslavia.
17 With regard to the first alleged error, the Appeals Chamber
18 reiterates that although Trial Chambers shall have recourse, pursuant to
19 Article 24(1) of the Statute, to the general practice regarding prison
20 sentences in the courts of the former Yugoslavia, they are not bound to
21 conform to such practice. The issue before the Appeals Chamber is whether
22 the Trial Chamber, while considering the practice of the courts in the
23 former Yugoslavia in relation to the sentencing aspect of the case,
24 ventured outside its discretion by ignoring the sentencing limits set in
25 that practice, without providing reasons for its departure. In the
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1 present case, the Appeals Chamber finds that the Trial Chamber fulfilled
2 its obligation to take into account the sentencing practices in the former
3 Yugoslavia with regard to the particular circumstances of the case.
4 Further, the Appeals Chamber finds that there is no need to determine
5 whether the Trial Chamber ventured outside its sentencing discretion, as
6 the sentence of 23 years' imprisonment it imposed is clearly within this
7 sentencing range in the former Yugoslavia at the time of the commission of
8 the offences by the Appellant.
9 With regard to the second alleged error, the Appeals Chamber notes
10 that the Trial Chamber had recourse to the sentencing practices in
11 countries other than in the former Yugoslavia in order to "seek guidance
12 based on comparative research in this terrain." As it is clear from this
13 sentencing judgement, the Trial Chamber reviewed those practices in
14 addition to the sentencing practices in the former Yugoslavia. The Trial
15 Chamber was aware that it was not bound to apply any maximum term of
16 imprisonment in a national system and did not err in exercising its
17 discretion to impose a sentence here.
18 Under his fifth ground of appeal, the Appellant argues that the
19 Trial Chamber erred in finding that the principle of lex mitior applies
20 only to cases where the commission of a criminal offence and the
21 subsequent imposition of a penalty took place within one and the same
22 jurisdiction, and that the principle does not apply to the International
23 Tribunal because it exercises a different jurisdiction from that in which
24 the crime was committed. The principle of lex mitior is understood to
25 mean that if the law relevant to the offence of the accused has been
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1 amended, the less severe law should be applied. Accused persons can only
2 benefit from the more lenient sentence if the law is binding, since they
3 only have a protected legal interest when the sentencing range must be
4 applied to them. The principle of lex mitior is thus only applicable if
5 the law that binds the International Tribunal is subsequently changed to a
6 more favourable law by which the International Tribunal is also obliged to
7 abide. In sum, properly understood, the principle of lex mitior applies
8 to the Statute of the International Tribunal. Accordingly, if ever the
9 sentencing powers conferred by the Statute were to be amended, the
10 International Tribunal would have to apply the less severe penalty. The
11 Appeals Chamber notes, however, that there has been not a change in the
12 laws of the International Tribunal regarding sentencing ranges. So far as
13 concerns the requirement of Article 24(1) that "the Trial Chambers shall
14 have recourse to the general practice regarding prison sentences in the
15 courts of the former Yugoslavia," these words have to be construed in
16 accordance with the principles of interpretation applicable to the Statute
17 of which they form part. So construed, they refer to any pertinent laws
18 of the former Yugoslavia which were in force at the time of commission of
19 the crime in question; subsequent changes in those laws are not imported.
20 This ground of appeal is dismissed.
21 Under his sixth ground of appeal, the Appellant argues that the
22 Trial Chamber failed to pay sufficient regard to the recommendation of the
23 parties as to a sentence of 15 years. He alleges two errors: (1) that
24 the Trial Chamber failed adequately to explain why the sentence
25 recommended by the parties was not appropriate, and (2) that it
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1 erroneously took into account the time he would actually serve in prison.
2 As to whether the Trial Chamber erred in failing to explain why
3 the sentence recommended by the parties was not appropriate, the Appeals
4 Chamber recalls that in exercising their discretion to impose a sentence,
5 Trial Chambers must take into account the following factors: The gravity
6 of the offence and the individual circumstances of the convicted person,
7 the general practice regarding prison sentences in the courts of the
8 former Yugoslavia, and aggravating and mitigating circumstances. The
9 Appeals Chamber finds that in the special context of a plea agreement, an
10 additional factor must be taken into account. A plea agreement is a
11 matter of considerable importance as it involves an admission by the
12 accused of his guilt. Furthermore, recommendation of a range of sentences
13 or, as in the present case, a specific sentence reflects an agreement
14 between the parties as to what, in their view, would constitute a fair
15 sentence. The Appeals Chamber notes that Rule 62 ter (B) of the Rules
16 unambiguously states that the Trial Chamber shall not be bound by any
17 agreement between the parties. Nevertheless, in the specific context of a
18 sentencing judgement following a plea agreement, the Appeals Chamber
19 emphasises that the Trial Chamber shall give due consideration to the
20 recommendation of the parties and, should the sentence diverge
21 substantially from that recommendation, give reasons for the departure.
22 In the present case, the Appeals Chamber finds that the Trial Chamber gave
23 sufficient reasons at paragraph 281 of the sentencing judgement and did
24 not abuse its discretion in departing from the parties' recommendation.
25 This part of the Appellant's ground of appeal is therefore dismissed.
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1 With regard to whether the Trial Chamber unduly took into account
2 the time the Appellant will serve in detention, the Appeals Chamber notes
3 that while a Trial Chamber may determine what it considers to be a minimum
4 term of imprisonment an accused should serve and may also consider the
5 possibility that the accused be granted early release when determining
6 what constitutes an appropriate sentence, a Trial Chamber must
7 nevertheless always consider that early release is only a possibility
8 offered to a convicted person. The question before the Appeals Chamber
9 under this ground of appeal is whether the Trial Chamber erred in
10 attaching too much weight to the possibility of an early release. The
11 Appeals Chamber notes that the Trial Chamber, by imposing a sentence of 23
12 years, clearly - although not expressly - entered into a calculation to
13 reflect the practice of the International Tribunal of granting early
14 release after the convicted person has served two-thirds of his sentence:
15 The term of 15 years, referred to by the Trial Chamber as the term the
16 Appellant has to serve before release, clearly amounts to two-thirds of
17 the sentence it effectively rendered. The Appeals Chamber considers that
18 the Trial Chamber mechanically - not to say mathematically - gave effect
19 to the possibility of an early release. By doing so, it attached too much
20 weight to such possibility. As a consequence, the Appeals Chamber finds,
21 Judge Shahabuddeen dissenting, that a reduction of sentence shall be
22 granted.
23 Under his seventh ground of appeal, the Appellant alleges that the
24 Trial Chamber erred by wrongly taking into account facts that fall outside
25 the scope of the indictment or of the agreed facts. The Appeals Chamber
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1 finds that the Appellant was aware that at the close of the sentencing
2 hearing he could object to the Trial Chamber's considering evidence that
3 in his view went beyond the scope of the indictment. Counsel for the
4 appellant made no such objections in his closing arguments and by that
5 failure waived his right to do so on appeal. Accordingly, this ground of
6 appeal is dismissed.
7 I shall now read the operative paragraph of the Appeals Chamber
8 judgement.
9 Mr. Nikolic, please would you stand. Please.
10 [The accused stands]
11 JUDGE MERON: For the foregoing reasons, the Appeals Chamber,
12 pursuant to Article 25 of the Statute and Rules 117 and 118 of the Rules
13 of Procedure and Evidence; noting the respective written submissions of
14 the parties and the arguments they presented at the hearing of 29 November
15 2004; sitting in open session; allows, Judge Shahabuddeen dissenting, the
16 Appellant's ground of appeal that the Trial Chamber erred in taking into
17 account the time he would actually serve in detention;
18 Dismisses the Appellant's ground of appeal in all other respects
19 and, Judge Shahabuddeen dissenting, imposes a new sentence;.
20 Sentences, Judge Shahabuddeen dissenting, the Appellant to 20
21 years' imprisonment to run as of this day, subject to credit being given
22 under Rule 101(C) of the Rules for the period the Appellant has already
23 spent in detention, that is, from 20 April 2000 to the present day;
24 Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,
25 that the Appellant is to remain in the custody of the International
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1 Tribunal pending the finalisation of arrangements for his transfer to the
2 State where his sentence will be served.
3 Mr. Registrar, would you please deliver copies of the judgement of
4 the parties.
5 Mr. Nikolic, you may now be seated.
6 [The accused sits down]
7 JUDGE MERON: Thank you, Registrar.
8 The Appeals Chamber stands adjourned.
9 --- Whereupon the Appeals Judgement
10 adjourned at 5.03 p.m.
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