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1 Wednesday, 26
2 [Judgement]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 10.02 a.m.
6 JUDGE SHAHABUDDEEN: Mr. Registrar, will you
7 please call the case next on the list.
8 THE REGISTRAR: [Interpretation] Case
9 IT-94-1-A and 94-1-A bis, the Prosecutor versus Dusko
10 Tadic.
11 JUDGE SHAHABUDDEEN: Mr. Tadic, you can hear
12 me?
13 THE APPELLANT: Yes.
14 JUDGE SHAHABUDDEEN: May I take it that the
15 appearances are as before?
16 MR. YAPA: Yes.
17 JUDGE SHAHABUDDEEN: The Appeals Chamber of
18 this International Tribunal is now delivering judgement
19 in this matter. Copies of the judgement, which is in
20 writing, will be made available by the registrar to the
21 parties towards the end of this sitting.
22 Following the practice of the Tribunal, I
23 shall not be reading out the text of the judgement,
24 except for the operative paragraph. Save for reading
25 of that paragraph, I shall limit myself to introductory
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1 matters.
2 The Appeals Chamber has before it two appeals
3 by Mr. Tadic against sentencing judgements rendered by
4 different Trial Chambers on 14 July 1997 and 11
5 November 1999 respectively. The two appeals arise in
6 this way:
7 The appellant, Dusko Tadic, was arrested in
8 Germany on 12 February 1994. A request for deferral by
9 the German courts to the competence of the
10 International Tribunal was issued on 8 November 1994.
11 On 24 April 1995, Mr. Tadic was transferred to the
12 custody of the International Tribunal, where he has
13 remained in detention until the present time.
14 Mr. Tadic was indicted on 34 counts of crimes
15 within the jurisdiction of the International Tribunal.
16 At his initial appearance on 26 April 1995, he pleaded
17 not guilty to all counts. Three of the counts were
18 subsequently withdrawn at trial.
19 On 7 May 1997, Trial Chamber II found
20 Mr. Tadic guilty on nine counts, guilty in part on two
21 counts, and not guilty on 20 counts. In a subsequent
22 judgement issued on 14 July 1997, the Trial Chamber
23 imposed penalties ranging from 6 to 20 years
24 imprisonment in respect of the counts on which
25 Mr. Tadic had been convicted and ordered the sentences
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1 to run concurrently inter se.
2 The Trial Chamber recommended that unless
3 exceptional circumstances applied, Mr. Tadic's sentence
4 should not be commuted or otherwise reduced, the term
5 of imprisonment, less than ten years from the date of
6 the sentencing judgement or of the final determination
7 of any appeal, whichever is the later.
8 Further, in calculating the credit to which
9 Mr. Tadic was entitled for time spent in detention, the
10 Trial Chamber held that he was not entitled to such
11 credit from the point in time at which he was
12 originally arrested in Germany, but only from the
13 subsequent date when a request was issued to Germany to
14 defer to the competence of the International Tribunal.
15 The Trial Chamber also ordered that the minimum
16 sentence imposed was not to be subject to any
17 entitlement to credit.
18 Both Mr. Tadic and the Prosecutor appealed
19 against separate aspects of the judgement.
20 Additionally, Mr. Tadic appealed against the sentencing
21 judgement.
22 On 15 July 1999, the Appeals Chamber entered
23 its judgement on the two appeals against the Trial
24 Chamber's judgement. Reversing the judgement in
25 certain respects, the Appeals Chamber found the
Page 41
1 appellant guilty on a number of additional counts.
2 With the agreement of the parties, the
3 Appeals Chamber deferred sentencing on these additional
4 counts to a separate stage of sentencing procedure.
5 Considering that the two matters could appropriately be
6 considered together, the Appeals Chamber similarly
7 deferred its judgement on Mr. Tadic's appeal against
8 the Trial Chamber's sentencing judgement until the
9 completion of this sentencing procedure.
10 With the agreement of the parties, the
11 Appeals Chamber subsequently remitted the matter of
12 sentencing in respect of the additional counts to a
13 Trial Chamber to be designated by the President of the
14 International Tribunal.
15 On 11 November 1999, the designated Trial
16 Chamber issued its sentencing judgement on the
17 additional counts. The Trial Chamber imposed sentences
18 ranging from 6 to 25 years in respect to the counts and
19 stipulated that the new sentences were to run
20 concurrently, both inter se and in relation to each of
21 the sentences imposed by the sentencing judgement of 14
22 July 1997. The Trial Chamber held that Mr. Tadic was
23 entitled to credit only for the point in time when the
24 request was issued to Germany to defer to the
25 competence of the International Tribunal.
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1 On 25 November 1999, Mr. Tadic appealed
2 against this second sentencing judgement. On
3 3 December 1999, the Appeals Chamber ordered that
4 Mr. Tadic's appeals against the two sentencing
5 judgements be joined. Accordingly, the present
6 judgement relates both to Mr. Tadic's appeal against
7 the sentencing judgement of 14 July 1997 and his appeal
8 against the sentencing judgement of 11 November 1999.
9 As to these two appeals, I shall be doing
10 three things. First, I shall introduce the text of the
11 judgement of the Appeals Chamber; second, I shall give
12 a summary of the findings of the Appeals Chamber;
13 finally, I shall read out the disposition of the
14 judgement of the Appeals Chamber. I make it clear that
15 the judgement is set out in the text to be handed out.
16 This statement is not the judgement of the Appeals
17 Chamber, except for the reading of the disposition of
18 the judgement.
19 Now, today's judgement is divided into three
20 sections. Section 1 sets out the procedural background
21 to the appeals, together with the respective grounds of
22 appeal and the reliefs sought. Section 2 relates to
23 Mr. Tadic's appeal against the sentencing judgement of
24 14 July 1997. Section 3 relates to Mr. Tadic's appeal
25 against the sentencing judgement of 11 November 1999.
Page 43
1 I shall now go briefly through the grounds of
2 appeal and the reliefs sought by the two appeals.
3 First, then, the appellant's appeal against
4 the sentencing judgement of 14 July 1997. There are
5 three grounds of appeal. The first ground of appeal is
6 as follows:
7 The total sentence of 20 years, decided by
8 the Trial Chamber, is unfair. In relation to this
9 ground, the appellant raises three separate points. He
10 says that:
11 (1) the sentence was unfair, as it was longer
12 than the facts of the case required;
13 (2) the Trial Chamber erred by failing to
14 take sufficient account of the general practice
15 regarding prison sentences in the courts of the former
16 Yugoslavia, as required by Article 24 of the Statute of
17 the International Tribunal;
18 (3) the Trial Chamber erred by giving
19 insufficient attention to the appellant's personal
20 circumstances.
21 The second and third grounds of appeal are as
22 follows:
23 (2) the Trial Chamber erred in proposing that
24 the calculation of the recommended minimum sentence
25 should commence from the date of this sentencing
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1 judgement or of the final determination of any appeal,
2 whichever is the later;
3 (3) the Trial Chamber erred by not giving the
4 appellant credit for the time spent in detention in
5 Germany prior to the issuance of a request for deferral
6 by the International Tribunal.
7 As for the reliefs sought on behalf of the
8 appellant in respect of this appeal, these are as
9 follows:
10 (1) that the sentence imposed by the Trial
11 Chamber be reduced;
12 (2) that the calculation of the minimum
13 sentence imposed by the Trial Chamber be altered to run
14 from the commencement of the appellant's detention in
15 Germany;
16 (3) that the appellant be given credit for
17 time spent in detention in Germany prior to the request
18 for deferral made by the International Tribunal.
19 I pass now to Mr. Tadic's appeal against the
20 sentencing judgement of 11 November 1999. There are
21 six grounds of appeal. They are as follows:
22 (1) the Trial Chamber erred in placing
23 excessive weight on deterrence in the assessment of the
24 appropriate sentence for violations of International
25 Humanitarian Law;
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1 (2) the Trial Chamber erred in failing to
2 have sufficient regard to the need to develop a range
3 of sentences which properly reflects the relative
4 position of different accused and their role in the
5 events in which they were involved;
6 (3) the Trial Chamber erred in determining
7 that the appellant's act of submitting certain material
8 to the Prosecutor did not constitute substantial
9 cooperation within the meaning of Subrule 101(B)(ii) of
10 the Rules of Procedure and Evidence of the
11 International Tribunal;
12 (4) the Trial Chamber erred in holding that,
13 all other things being equal, crimes against humanity
14 should attract a higher sentence than war crimes;
15 (5) the Trial Chamber erred in placing
16 insufficient weight on the general practice regarding
17 prison sentences in the courts of the former
18 Yugoslavia;
19 (6) the Trial Chamber erred in not giving the
20 appellant credit for the period of his detention in
21 Germany prior to the issuance of a request for deferral
22 by the International Tribunal.
23 In respect of this appeal, the appellant
24 seeks the following two reliefs:
25 (1) that the sentence imposed by the Trial
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1 Chamber be reduced;
2 (2) that the appellant be given credit for
3 time spent in detention in Germany prior to the request
4 for deferral made by the International Tribunal.
5 I shall now mention briefly the holdings of
6 the Appeals Chamber. I shall deal first with the
7 appeal against the sentencing judgement of 14 July
8 1997.
9 As to the first ground, the Appeals Chamber
10 holds that insofar as the appellant argues that the
11 sentence of 20 years was unfair because it was lower
12 than the facts underlying the charges required, the
13 Appeals Chamber can find no error in the exercise of
14 the Trial Chamber's discretion. Similarly, the Appeals
15 Chamber is not satisfied the Trial Chamber erred in the
16 exercise of its discretion with respect to the weight
17 given to the sentencing practice of the former
18 Yugoslavia. The Appeals Chamber is also unable to find
19 support for the appellant's final challenge to his
20 sentence; namely, that the Trial Chamber failed to
21 adequately consider his personal circumstances. The
22 sentences imposed by the sentencing judgement of 14
23 July 1997 are therefore affirmed, subject to what is
24 later said about the recommended minimum term and
25 credit for previous custody in Germany.
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1 As to the second ground, the Appeals Chamber
2 holds that the Trial Chamber's recommendation that the
3 ten-year minimum sentence begin to run from the date of
4 this sentencing judgement or of the final determination
5 of any appeal, whichever is the later, raises
6 legitimate concerns with respect to the right of appeal
7 as provided by Article 25 of the Statute of the
8 International Tribunal. The Appeals Chamber finds that
9 the Trial Chamber erred insofar as it ordered that the
10 recommended minimum term take, as its starting point,
11 the final determination of any appeal. However, the
12 Appeals Chamber is not satisfied that the Trial Chamber
13 erred in the exercise of its discretion insofar as it
14 ordered that the recommended minimum term begin to run
15 from the date of the sentencing judgement of 14 July
16 1997, nor that it erred in ordering that the appellant
17 not be entitled to credit in respect of the minimum
18 term. To preserve that part of the recommendation, the
19 Appeals Chamber recommends that the appellant should
20 serve a minimum period of imprisonment ending no
21 earlier than 14 July 2007; that is, ten years as from
22 the imposition of the original sentences.
23 As to the third ground, the Appeals Chamber
24 holds that under the relevant Rule, the appellant is
25 entitled to credit for the time spent in custody in
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1 Germany only for the period that he was in detention
2 pending his surrender to the International Tribunal.
3 However, the Appeals Chamber recognises that the
4 criminal proceedings against the appellant in Germany
5 emanated, in substance, from the same criminal conduct
6 for which he now stands convicted by the International
7 Tribunal. Consequently, the Appeals Chamber finds that
8 fairness requires that account be taken of the period
9 the appellant spent in custody in Germany prior to the
10 issuance of the Tribunal's formal request for
11 deferral.
12 I come now to the appellant's appeal against
13 the sentencing judgement of 11 November 1999.
14 As to the first ground, the Appeals Chamber
15 is not satisfied that the Trial Chamber gave undue
16 weight to deterrence as a factor in the determination
17 of the appropriate sentence to be imposed on the
18 appellant. Accordingly, this ground of appeal is
19 dismissed.
20 As to the second ground, the Appeals Chamber
21 holds that the Trial Chamber's judgement fails to
22 adequately consider the need for sentences to reflect
23 the relative significance of the role of the appellant
24 in the broader context of the conflict in the former
25 Yugoslavia. The Appeals Chamber considers that
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1 although the criminal conduct underlying the charges of
2 which the appellant now stands convicted was
3 incontestably heinous, his level in the command
4 structure, when compared to that of his superiors or
5 the very architects of the strategy of ethnic
6 cleansing, was low. In the circumstances of the case,
7 the Appeals Chamber considers that a sentence of more
8 than 20 years imprisonment for any count of the
9 indictment on which the appellant stands convicted is
10 excessive. The Appeals Chamber therefore revises the
11 sentencing judgement of 11 November 1999 and sentences
12 Mr. Tadic to 20 years of imprisonment for each of
13 Counts 29, 30 and 31 of the indictment, to run
14 concurrently both inter se and in relation to the
15 prison terms earlier imposed by the Trial Chambers as
16 affirmed by the Appeals Chamber in this judgement.
17 As to the third ground, in which the
18 appellant contends the Trial Chamber erred in finding
19 that his act of providing the Prosecutor with certain
20 material did not meet the standard of substantial
21 co-operation within the meaning of the Rules and
22 therefore was not to be taken into account in the
23 determination of the appropriate sentence, the Appeals
24 Chamber is not satisfied that any basis in law or fact
25 has been disclosed in support of this ground of
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1 appeal. This ground of appeal is accordingly
2 dismissed.
3 As to the fourth ground (which was raised and
4 argued only in relation to the second appeal), the
5 Appeals Chamber (Judge Cassese dissenting) holds that
6 there is in law no distinction between the seriousness
7 of a crime against humanity and that of a war crime.
8 The Appeals Chamber finds no basis for such a
9 distinction in the Statute or the Rules of the
10 International Tribunal, construed in accordance with
11 customary international law, and takes the view that
12 the position is similar under the Statute of the
13 International Criminal Court. The Appeals Chamber
14 therefore upholds this ground of appeal.
15 As to the fifth ground, in which the
16 appellant sets forth issues raised as part of the first
17 ground of appeal against the sentencing judgement of 14
18 July 1997, the Appeals Chamber holds that it cannot
19 find any error of discretion on the part of the Trial
20 Chamber with respect to the weight given to the
21 sentencing practice of the courts of the former
22 Yugoslavia. Accordingly, this ground of appeal fails.
23 As to the sixth ground, which is identical to
24 the third ground of appeal against the sentencing
25 judgement of 14 July 1997, the Appeals Chamber holds
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1 that the interests of justice require that the
2 appellant be granted credit for the entire time spent
3 in detention in Germany.
4 I shall now read the operative paragraph of
5 the judgement of the Appeals Chamber, and at this point
6 I would invite Mr. Tadic to stand.
7 The operative paragraph of the judgement is
8 as follows:
9 For the foregoing reasons, the Appeals
10 Chamber:
11 (1) denies the first ground of appeal against
12 the sentencing judgement of 14 July 1997 and affirms
13 the sentences imposed upon the appellant by the
14 sentencing judgement of 14 July 1997;
15 (2) denies the first, third and fifth grounds
16 of appeal against the sentencing judgement of 11
17 November 1999;
18 (3) allows the second and fourth grounds of
19 appeal against the sentencing judgement of 11 November
20 1999, Judge Cassese dissenting with respect to the
21 fourth ground, revises the Trial Chamber's sentencing
22 judgement of 11 November 1999 with respect to Counts
23 29, 30 and 31 of the indictment, and sentences Dusko
24 Tadic to 20 years imprisonment for each of the said
25 counts;
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1 (4) affirms the sentences imposed in the
2 sentencing judgement of 11 November 1999 with respect
3 to Counts 8, 9, 12, 15, 21 and 32;
4 (5) orders that the sentences imposed in
5 subparagraph 3 above, as well as the sentences imposed
6 by the sentencing judgements of 14 July 1997 and 11
7 November 1999 and affirmed in subparagraphs 1 and 4
8 above, shall begin to run as of today's date;
9 (6) orders that each of the sentences imposed
10 in subparagraph 3 above be served concurrently both
11 inter se and in relation to the sentences imposed in
12 the sentencing judgements of 14 July 1997 and 11
13 November 1999 and affirmed in subparagraphs 1 and 4
14 above;
15 (7) allows the second ground of appeal
16 against the sentencing judgement of 14 July 1997
17 insofar as it now revises the sentencing judgement of
18 14 July 1997 by recommending that, unless exceptional
19 circumstances apply, Dusko Tadic should serve a term of
20 imprisonment ending no earlier than 14 July 2007;
21 (8) allows the third ground of appeal against
22 the sentencing judgement of 14 July 1997 and the sixth
23 ground of appeal against the sentencing judgement of 11
24 November 1999, revises the sentencing judgement of 14
25 July 1997 and the sentencing judgement of 11 November
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1 1999 by finding, as it now does, that Dusko Tadic is
2 entitled to credit for five years, eleven months and
3 fourteen days in relation to the sentences referred to
4 in subparagraph 5 above, provided that such credit
5 shall not affect the minimum term recommendation
6 contained in subparagraph 7 above.
7 Accordingly, the appeals are allowed in part,
8 dismissed in part.
9 Judge Shahbudeen and Judge Cassese append
10 separate opinions to this judgement.
11 There ends the final part of the judgement.
12 I shall now ask the registrar to deliver
13 copies of the judgement to the parties.
14 Some final words.
15 Mr. Tadic, you have heard the reading of the
16 disposition of the Appeals Chamber's judgement in your
17 two appeals. The substance of the disposition is that
18 you will serve a period of 20 years imprisonment,
19 subject to the following:
20 (A) As regards the Trial Chamber's
21 recommendation that you serve a minimum term of ten
22 years' imprisonment, the Appeals Chamber preserves the
23 substance of the recommendation by recommending that
24 you serve a term of imprisonment ending no earlier than
25 14 July 2007; that is to say, ten years as from the
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1 imposition of the original sentences in 1997.
2 (B) Subject to the condition that the actual
3 period of imprisonment should not end before 14 July
4 2007, you are given credit for a total period of five
5 years, eleven months and fourteen days to be deducted
6 from the 20-year period of imprisonment imposed upon
7 you.
8 The Appeals Chamber will now stand
9 adjourned.
10 --- Whereupon the Judgement concluded
11 at 10.35 a.m.
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