Tribunal Criminal Tribunal for the Former Yugoslavia

Page 38

1 Wednesday, 26 January, 2000

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18 subsequently withdrawn at trial.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

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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.

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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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