1 Monday, 30th August, 1999

2 [Open session]

3 [The appellant entered court]

4 --- Upon commencing at 2.20 p.m.

5 JUDGE SHAHABUDDEEN: Mr. Registrar, will you

6 please call the case?

7 THE REGISTRAR: Case number IT-94-1-A, the

8 Prosecutor versus Dusko Tadic.

9 JUDGE SHAHABUDDEEN: Before the proceedings

10 begin, I wish to apologise for the delay in calling the

11 court to order. This was due to the unfortunate

12 indisposition of a member of the Appeals Chamber, Judge

13 Wang, who is unable to sit today. Technically, we are

14 not properly constituted, I think, in his absence. I

15 think that will be appreciated. So what we propose to

16 do and to do only with your consent is this: We're

17 waiting this afternoon on a procedural exercise to

18 consider whether the sentencing phase should be

19 remitted to a Trial Chamber and, if so, which Trial

20 Chamber.

21 What I propose, and again only with your

22 consent, is that we hear the arguments, which I do not

23 believe will be extensive, it being understood that

24 these arguments will be considered by Judge Wang and

25 that no decision will be taken without his full

1 participation. In effect, when he rejoins the group,

2 the matter will be reconsidered afresh by the Appeals

3 Chamber in the light of any arguments you make which

4 will be on the transcript.

5 So the first thing is whether you would

6 consent to that. If you do, then I should pass on to

7 other matters. At the moment, technically, the bench

8 is not properly constituted.

9 MR. YAPA: For the Prosecution, Your Honours,

10 we have no objection to Your Honours proceeding with

11 the matter.

12 MR. CLEGG: Your Honour, I'm sure I speak on

13 behalf of all counsel when we say that we hope Judge

14 Wang is soon restored to full health. We have no

15 objection to proceeding in his absence.

16 It did occur to us that there may be

17 provision for this in the rules as amended. Rule 15(E)

18 as amended does deal with the question of the illness

19 of a judge, and it there says that the President may

20 authorise a Chamber to conduct routine matters in the

21 absence of one or more of its members. We would have

22 submitted that the proceedings today are only a routine

23 matter in deciding the forum for the sentencing

24 hearing, and if our reading of Rule 15(E) is correct,

25 there may technically be a need for the authorisation

1 of the President. But if that were forthcoming, then

2 it's our submission that the four judges who are

3 sitting today could proceed to make a decision in

4 relation to the sentencing forum, and we would invite

5 the Appeals Chamber to proceed, if it thinks that my

6 reading of the rules is right, to make a decision today

7 without Judge Wang's participation.

8 If my reading of the rules does not find

9 favour with the Court, then I would be content with the

10 proposal that the Court has already made.

11 JUDGE SHAHABUDDEEN: Does the Prosecution

12 wish to make a contribution on that point?

13 MR. YAPA: Your Honours, our submission is

14 that with regard to the argument to be presented, it

15 could be presented before Your Honours as constituted

16 at present, but on the question of the decision, I

17 would submit that the absent judge should also take

18 part in the decision making.

19 JUDGE SHAHABUDDEEN: Judge Wang ought to take

20 part.

21 MR. YAPA: Yes.

22 JUDGE SHAHABUDDEEN: Thank you.

23 Mr. Clegg, the bench appreciates your

24 assistance. We had considered whether the hearing this

25 afternoon could be comprehended by the reference to

1 "routine matters". To say the least, we have doubts

2 as to whether a decision as to whether this Chamber has

3 competence or whether the competence resides with the

4 Trial Chamber is, properly speaking, a routine matter.

5 So what I propose is that we hear the arguments, as it

6 were, ad referendum to Judge Wang and that he

7 participates fully in the decision as to whether the

8 sentencing should be done by this Chamber or should be

9 done by a Trial Chamber.

10 I'm very sorry. I appreciate the convenience

11 of a certain point of view of going along the road

12 which you had indicated, but it appears to us that

13 there is no alternative.

14 MR. CLEGG: So be it. One cannot let

15 expediency override the rules of the Court, however

16 tempting it might be.

17 JUDGE SHAHABUDDEEN: On that basis, the case

18 has been called, and I take it that the appearances are

19 as before.

20 May I raise incidentally another matter? I

21 don't think, Mr. Clegg, you are in the contempt case,

22 are you?

23 MR. CLEGG: No.

24 JUDGE SHAHABUDDEEN: No. That's a problem.

25 MR. CLEGG: I have filed a motion in relation

1 to that and was going to seek to be heard, but I would

2 only advance that motion in the presence of Mr. Vujin

3 because it seems to me that he would obviously have a

4 right to be heard. Mr. Abell, I know, is in the

5 building because I physically saw him arrive just

6 before you sat.

7 JUDGE SHAHABUDDEEN: We would be glad if

8 Mr. Abell could present himself for a limited purpose

9 which is this, that we have the contempt case coming

10 on. We have spoken with the President. It will be

11 necessary in that case, we think, for a judge to be

12 appointed to the place of Judge Wang, but that could

13 only be done with the consent of the parties, we

14 think. So we would need Mr. Abell in court -- really,

15 we would need all the parties, but we can proceed with

16 the participation of Mr. Abell on the basis that when

17 the contempt case is called, we will represent the

18 matter to all parties and hear their views. So if you

19 are in a position to send for Mr. Abell, I would be

20 grateful.

21 Do I take it that the Prosecution agrees that

22 in the contempt case, there could be a judge appointed

23 to the place of Judge Wang?

24 MR. YAPA: We do agree.

25 [Mr. Abell enters court]

1 JUDGE SHAHABUDDEEN: Mr. Abell, it was good

2 of you to make yourself available to us. We have an

3 unexpected conjuncture of circumstances this afternoon,

4 and the resolution of those circumstances will affect

5 the procedures relating to both the sentencing hearing

6 and the contempt case.

7 For reasons which may have already come to

8 your notice, it appears to us that Judge Wang will not

9 be able to participate in the contempt hearing. That

10 means that the bench would not be properly constituted,

11 unless we can have recourse to paragraph 5 of Rule 15

12 of the Rules which applied mutatis mutandis would

13 enable the President to assign another judge to the

14 case, but I think only with the consent of the

15 parties. All the parties are not here, but you are

16 here and the Prosecution is here, so we would like to

17 know from you whether you would be agreeable to a

18 replacement judge being appointed under that provision

19 in relation to the contempt matter.

20 MR. ABELL: I would appreciate, before making

21 any submissions on that, to have a brief opportunity to

22 take instructions from Mr. Tadic, the interested party

23 whom I represent.

24 JUDGE SHAHABUDDEEN: Indeed. I take it you

25 would in turn appreciate that we would like to lay

1 stress on the word "brief"?

2 MR. ABELL: Yes, I understand. May I say,

3 I'm sorry to hear about His Honour, Judge Wang.

4 JUDGE SHAHABUDDEEN: Indeed. Well,

5 Mr. Abell, you will proceed. Meanwhile, we will return

6 to the issue which brings us together this afternoon as

7 to whether the Appeals Chamber is a proper Chamber for

8 the purpose of sentencing or whether the matter should

9 be remitted to a Trial Chamber.

10 MR. ABELL: Your Honour, do forgive me for

11 rising again, but in order to take instructions from

12 Mr. Tadic, I will need briefly to retire with him in

13 order to speak with him. That may require a short

14 delay in the proceedings. I promise I will be brief,

15 but I believe I have to speak with him about the matter

16 first.

17 JUDGE SHAHABUDDEEN: Do you visualise that

18 would involve an interruption in the proceedings

19 relating to the sentencing matter?

20 MR. ABELL: I don't know whether Mr. Tadic is

21 required for that. That's really a matter for my

22 learned friend, Mr. Clegg.

23 JUDGE SHAHABUDDEEN: I would like Mr. Clegg

24 to indicate whether we may proceed in the absence of

25 Mr. Tadic.

1 MR. CLEGG: I can see that Mr. Tadic is

2 indicating that he would prefer to be present. If I

3 could suggest that --

4 THE APPELLANT: No, no, no.

5 MR. CLEGG: I think I misinterpreted what

6 Mr. Tadic -- we can proceed in the absence of

7 Mr. Tadic.

8 JUDGE SHAHABUDDEEN: Mr. Abell, you may

9 retire with Mr. Tadic while we take up the sentencing

10 proceeding.

11 MR. ABELL: Your Honour, thank you very

12 much. I'm very grateful.

13 [The appellant withdrew]

14 JUDGE SHAHABUDDEEN: May I inquire as to

15 whether Mr. Vujin is in the precincts? Has anybody any

16 information?

17 MR. CLEGG: We've not seen him, but he's

18 certainly been seen in the general area of the court

19 but not inside the precincts.

20 JUDGE SHAHABUDDEEN: We can make a start with

21 the arguments on the issue as to whether the Appeals

22 Chamber has competence in relation to sentencing or

23 whether that branch of the matter should be remitted to

24 a Trial Chamber and, if so, which Trial Chamber. We

25 issued a scheduling order last Friday in which we

1 allocated 30 minutes to each side for this purpose, and

2 I hope you find that adequate because you have already

3 had an opportunity to submit written arguments, and we

4 thought, looking at the character of the case, that it

5 would be appropriate for the Prosecution, I think, to

6 start and then for you, Mr. Clegg, to reply.

7 Is that agreeable? Is that agreeable to the

8 Prosecution as well?

9 MR. CLEGG: Certainly.

10 MR. KEEGAN: Yes.

11 MR. CLEGG: Yes, it's agreeable to the

12 Defence.

13 JUDGE SHAHABUDDEEN: Then Mr. Prosecutor.

14 MR. KEEGAN: Thank you, Your Honour. The

15 Prosecution submits that a Trial Chamber composed of as

16 many members of the original Trial Chamber as is

17 possible is the most appropriate forum to deal at first

18 instance with the question of sentencing on Counts 8,

19 9, 12, 15, 21, 29, 30, 31, and 32.

20 There are two principal and related reasons

21 for this submission. The first, Your Honours, is that

22 the Tribunal Statute and Rules envisage that the

23 Tribunal's discretion with respect to sentencing of a

24 convicted person of any offence in the first instance

25 is to be exercised by the Trial Chamber, and I would

1 point to the submissions in our brief relating to

2 Articles 23, 24, and Rule 101 of the Rules of Procedure

3 and Evidence.

4 In comparison, there is no article in the

5 Statute that refers to the authority of the Appeals

6 Chamber to impose a sentence. In exercising its

7 authority in this area, the Appeals Chamber is, in

8 fact, bound by the provision of Article 25 of the

9 Tribunal Statute which delineate the authority of the

10 Appeals Chamber in considering judgements of a Trial

11 Chamber on appeal.

12 Article 25(ii) states that an Appeals Chamber

13 may affirm, reverse or revise the decisions of a Trial

14 Chamber.

15 As interpreted by the Rules of Procedure and

16 Evidence, however, the authority granted in Article 25

17 also empowers the Appeals Chamber to determine and

18 impose sentences.

19 Rule 107, notably, states that the Rules of

20 Procedure and Evidence that are applicable to the Trial

21 Chambers apply mutatis mutandis to the Appeals Chamber

22 during the consideration of an appeal. That would

23 include, of course, Rule 101 dealing with sentences.

24 In addition, Rule 118(A) states that a

25 sentence --

1 THE INTERPRETER: Can counsel please slow

2 down?

3 MR. KEEGAN: -- enforced immediately. Thus,

4 while it is clear that the Appeals Chamber does possess

5 the authority to impose sentences, the question raised

6 is whether it is appropriate to exercise that authority

7 in such cases as the present one, where the assessment

8 of a new sentence arises solely from new or additional

9 convictions based upon the reversal of a Trial

10 Chamber's verdict by the Appeals Chamber.

11 Under the Rules, there are at least three

12 instances in which an Appeals Chamber may be called

13 upon to impose a sentence, in our submission. The

14 first instance is the one which the Appeals Chamber is

15 now considering, whereas the result of an appeal of a

16 judgement of a Trial Chamber, the Appeals Chamber has

17 found the person guilty of new or additional charges.

18 The second instance is where there has been

19 an appeal on the sentence imposed by a Trial Chamber

20 and the Appeals Chamber has found that the Trial

21 Chamber committed an error of law or abused its

22 discretion.

23 The third instance is where the Appeals

24 Chamber has found a person in contempt pursuant to Rule

25 77.

1 The Prosecution submits it would be generally

2 appropriate for the Appeals Chamber to determine and

3 impose a sentence in both the second and third

4 instances. When the Appeals Chamber has found someone

5 in contempt, pursuant to Rule 77, the Appeals Chamber,

6 as the finder of fact, would be the most appropriate

7 body to impose the sentence since it would have direct

8 knowledge of all the relevant factors.

9 Similarly, where an appeal is brought

10 alleging that a Trial Chamber abused its discretion in

11 imposing a sentence, it might also be appropriate for

12 the Appeals Chamber to impose a revised sentence if it

13 determined that it had cognizance of all the relevant

14 factors involved in the sentence.

15 That may not be the case, however, where an

16 appeal from a sentence is based upon a submission that

17 the Trial Chamber wrongly excluded certain evidence or

18 considered evidence that should have been excluded, and

19 that determination, which calls for, in essence, a

20 determination in the first instance of a new sentence,

21 it might be more appropriate for the Appeals Chamber to

22 return the case to the Trial Chamber for a

23 reconsideration of sentence with instructions on the

24 evidence to be considered.

25 The Prosecution submits that it is these

1 instances that Rule 118(A) was intended to apply.

2 Where the Appeals Chamber pronounces new or

3 additional findings of guilt, as it did in this case,

4 it does so as a direct result of a revision of a

5 verdict by a Trial Chamber.

6 In this case, the decision to reverse the

7 Trial Chamber's verdict was based solely upon an

8 analysis of the Trial Chamber's legal reasoning and a

9 determination by the Appeals Chamber that the Trial

10 Chamber committed an error. It is significant that in

11 reversing the Trial Chamber, the Appeals Chamber here

12 did not question the underlying factual findings of the

13 Trial Chamber or render any additional factual findings

14 of its own. Rather, the reversal of the Trial Chamber

15 was based solely on an analysis of issues of law.

16 As a consequence, the imposition of a

17 sentence based under these circumstances is not a mere

18 revision after decision by the Trial Chamber, it is a

19 de novo determination of a sentence.

20 To undertake the determination of an

21 appropriate sentence in the present case, the

22 sentencing authority must consider all the relevant

23 evidence and determine what aggravating and mitigating

24 factors are present. That fact raises the issue of

25 whether the interests of justice and the rights of the

1 convicted person are not better served by having the

2 trier of fact determine the appropriate sentence.

3 The Trial Chamber was the trier of fact, with

4 direct knowledge of the evidence in the case and direct

5 observation of the witnesses and victims. Members of

6 the Trial Chamber also have the benefit of their full

7 reasoning and determination with respect to the case

8 and the original sentence imposed.

9 Conversely, should the Appeals Chamber

10 determine that it will impose the sentence under these

11 circumstances, it will, presumably, have to go back and

12 review all the evidence related to the circumstances of

13 the killings involved, for example, and the context in

14 which they were committed.

15 Moreover, the sentencing authority at the

16 Tribunal does not enjoy the same advantages of courts

17 that have authority to impose sentences in national

18 jurisdictions. Those courts have the benefit of

19 statutory provisions that establish the accepted range

20 of punishments with particularity and, or in addition,

21 they also have the benefit of a substantial amount of

22 prior jurisprudence which provides clear guidance as to

23 the appropriate sentences for various crimes.

24 Due to the unique jurisdiction of the

25 Tribunal, however, there is little in this manner to

1 guide the Chambers in determining an appropriate

2 sentence.

3 JUDGE SHAHABUDDEEN: Mr. Keegan, would you

4 pause a minute to allow Mr. Tadic to return?

5 [The appellant entered court]

6 JUDGE SHAHABUDDEEN: Please proceed.

7 MR. KEEGAN: Thank you, Your Honour.

8 Consequently, due to the lack of prior jurisprudence

9 and statutory provisions assisting the sentencing

10 authorities at the Tribunal, there must be an even

11 greater emphasis placed upon the particular

12 circumstances in each case and an analysis of the

13 factors set forth in Article 24(ii) and Rule 101.

14 It is the Trial Chamber that is in the best

15 position to give full effect to those issues, whereas

16 the Appeals Chamber has had no opportunity to view the

17 witnesses and victims or give consideration to the

18 other factors.

19 The second and related reason why it is more

20 appropriate for the Trial Chamber to deal at first

21 instance with the question of sentencing on these

22 additional convictions is that this would afford the

23 convicted person a possibility to appeal against the

24 sentence on those counts. Consistent with Article 14

25 of the ICCPR, the Statute of the Tribunal, and within

1 the unique jurisdiction and structure of this Tribunal,

2 a right of appeal should be afforded at the appropriate

3 junctures where the material rights of a party is

4 affected by a decision.

5 For these reasons, Your Honours, the

6 Prosecution submits that the appropriate course in this

7 case is to remit the matter of sentencing to the

8 original Trial Chamber if possible or, in the

9 alternative, a Trial Chamber composed of as many

10 members of the original Trial Chamber as is possible.

11 Thank you.

12 JUDGE SHAHABUDDEEN: Perhaps this is an

13 appropriate stage to ask Mr. Abell to take the floor.

14 MR. ABELL: Your Honour, may I thank you very

15 much for the time you were kind enough to allow me to

16 take instructions from the interested party, Dusko

17 Tadic.

18 The position is this: We do consent to the

19 proceedings going ahead under the provision that Your

20 Honour was kind enough to point out to me. May I say

21 this, though? Under that particular section, it would

22 appear that the person who has to consent is the

23 accused, and Dusko Tadic is an interested party in the

24 contempt proceedings. It would appear that the person

25 whose consent is required is Milan Vujin, who is the

1 accused for the purposes of these contempt

2 proceedings. But, as I say, Mr. Tadic, if his consent

3 is required, does consent and is willing for the matter

4 to continue with a substitute judge. I take it that

5 that substitute judge will have an opportunity to

6 obviously consider the transcripts which have thus far

7 been generated?

8 JUDGE SHAHABUDDEEN: Mr. Abell, thank you

9 very much. A substitute judge will have that

10 opportunity, and you are quite right in saying that

11 Mr. Vujin's consent will be necessary. I do not think

12 you were present in the Chamber at an earlier stage

13 when I said something to the effect that on the

14 contempt case being called, we would have to return to

15 the other interested parties. I think I said that. We

16 didn't feel, like you, that we would be on safe ground

17 in proceeding solely on the basis of your own consent.

18 So we are ad idem on that. Thank you very much.

19 In fact, our procedures this afternoon are

20 somewhat unorthodox, as, indeed, is the constitution of

21 the bench itself. We did put out a call for Mr. Vujin,

22 seeking to discover whether he was available in the

23 precincts. If he was, we would ask him now whether he

24 also would consent. So your point has fully been taken

25 on board.

1 MR. ABELL: I'm grateful for that. Thank

2 you, Your Honour.

3 JUDGE SHAHABUDDEEN: Mr. Clegg, would it be

4 convenient for you?

5 MR. CLEGG: Certainly.

6 JUDGE SHAHABUDDEEN: Thank you.

7 MR. CLEGG: I confess for the second time in

8 one afternoon, expediency and the desire for --

9 JUDGE SHAHABUDDEEN: Mr. Abell, if you would

10 like to retire at this point, we would be fully

11 agreeable.

12 MR. ABELL: Of course. I had wondered

13 whether I should actually remain. I will retire

14 immediately.

15 JUDGE SHAHABUDDEEN: Yes. Thank you.

16 Yes, Mr. Clegg?

17 MR. CLEGG: My initial thoughts were

18 reflected in paragraph 12 of the brief submitted on the

19 29th of July of this year which encouraged the Appeals

20 Chamber to deal with the question of resentencing.

21 That was before I had sight of the Prosecution brief

22 and before I had the opportunity of hearing the

23 submissions of Mr. Keegan.

24 Since reading the brief of the Prosecution, I

25 have reflected on the proper way to proceed, and I am

1 satisfied that my original submissions were wrong and

2 that the Prosecution's approach is, in fact, the

3 correct approach. It was, I think, frankly a desire

4 for expediency that persuaded me to urge the Appeals

5 Chamber to determine the sentence for these offences

6 that the appellant now stands convicted of for the

7 first time, but for the second time today, I am forced

8 to say that expediency is no substitute for proceeding

9 in the proper way. I, frankly, am now convinced that

10 the Prosecution's submissions are well-founded, and in

11 those circumstances, we support them.

12 My reasons are, firstly, that upon a proper

13 analysis, we accept that the Statute and Rules clearly

14 envisage that sentencing for offences should be done at

15 the Trial Chamber level. Secondly, that preserves the

16 appellant's right of appeal that would otherwise be

17 lost, and I accept the submissions contained in

18 paragraph 9 of the Prosecution's brief so far as that

19 is concerned.

20 Therefore, we find ourselves agreeing with

21 the Prosecution and, like them, submit that the Trial

22 Chamber which deals with the question of sentence

23 should ideally be comprised of the same three judges

24 that heard the trial itself. We are, of course, all

25 conscious of the position of Judge Stephen.

1 Recognising that difficulty, we would say that it is

2 preferable that the remaining two judges of the

3 original Trial Chamber should sit in the reconvened

4 Trial Chamber for sentence, although that's not

5 strictly essential under the Rules, but we would submit

6 it's highly desirable that the other two judges do

7 sit.

8 I've reflected on what the Appeals Chamber

9 should do in relation to the appeal against sentence

10 that, of course, is pending in relation to the

11 remaining counts. We would urge the Appeals Chamber to

12 adjourn that appeal against sentence on the remaining

13 counts until after the Trial Chamber sentences on the

14 fresh offences, and we would then envisage the Appeals

15 Chamber dealing with one consolidated appeal against

16 sentence, embracing the sentence passed by the original

17 Trial Chamber which is the subject of appeal, and if

18 it's to be the subject of appeal, and one knows not

19 what the Trial Chamber will do on the new convictions,

20 but if that were to be the subject of a separate

21 appeal, then we would anticipate this Appeals Chamber

22 hearing a consolidated appeal dealing with all matters

23 together.

24 If the Appeals Chamber were attracted to that

25 suggestion, then we would hope that the Trial Chamber

1 could be convened for this very limited purpose within

2 a very short time scale, and we would hope, at any

3 rate, that the matter could be dealt with with

4 reasonable expedition.

5 Unless I can assist the Appeals Chamber any

6 more, those are our submissions. The bad lawyer

7 doesn't sometimes recognise that he's made a bad point,

8 and I think, on reflection, our original position was

9 erroneous, and we recognise that error.

10 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.

11 The strength of a lawyer is the ability of the

12 practitioner to revise his earlier thinking. So I do

13 not think the bench would be disposed to find any fault

14 with you for simply changing your opinion in the light

15 of the opinion expressed by your colleagues on the

16 other side.

17 What I'd like to say to you, and for the

18 record, is that this is a point which occurred to the

19 bench. The bench has no position on it, but it

20 considered that it would be wise to take counsel with

21 both sides, and that is what we are doing today.

22 The Prosecution has not had an opportunity to

23 address the point which you made latterly to the

24 effect, I think, that the decision on the sentencing

25 appeal might be adjourned pending a determination by

1 the Trial Chamber of the question of what sentences

2 should be passed in relation to these counts on which

3 the Appeals Chamber has held Mr. Tadic to be guilty but

4 in respect of which he was acquitted earlier on. So

5 perhaps I might invite the Prosecution to respond to

6 that point. Thank you very much.

7 MR. KEEGAN: Your Honour, if we could, could

8 we beg just a moment to confer?

9 JUDGE SHAHABUDDEEN: Yes.

10 MR. KEEGAN: Thank you.

11 [Prosecution confers]

12 MR. KEEGAN: Thank you, Your Honours, for

13 your indulgence.

14 It would be the submission of the

15 Prosecution, Your Honours, that, in fact, it would be

16 preferable to proceed with the appeal on sentencing as

17 currently fashioned by the appellant, that within that

18 appeal, there are a number of issues that may or may

19 not be applicable to any resentencing on these distinct

20 counts, but more particularly, it seems to us then the

21 Trial Chamber would have the benefit of the guidance

22 from the Appeals Chamber on the sentencing issues

23 already raised in fashioning an appropriate sentence on

24 these additional convictions, such that it may, in

25 fact, avoid any potential error, assuming that the

1 Appeals Chamber found that there was some in the first

2 instance, with respect to these later counts, and,

3 therefore, it would probably minimise to a great extent

4 any potential issues for appeal. If there was a second

5 appeal, it would only be limited -- it would be limited

6 to just those discrete counts for which the additional

7 sentence was imposed.

8 Thank you.

9 JUDGE SHAHABUDDEEN: So your submission,

10 Mr. Keegan, is that if the Appeals Chamber were to

11 remand the matter for sentences to be passed by a Trial

12 Chamber, that that should not prevent the Appeals

13 Chamber from now deciding on the sentencing appeal

14 which has not yet been concluded. Is that your

15 position?

16 MR. KEEGAN: That's correct, Your Honour.

17 JUDGE SHAHABUDDEEN: Then would that

18 necessitate a modest revision of the position the

19 Appeals Chamber took on 15 July? I think the Appeals

20 Chamber then visualised that there would be a

21 sentencing hearing on the counts on which Mr. Tadic was

22 acquitted but which he has been found guilty by the

23 Appeals Chamber, and that when sentences were passed on

24 these counts, then at the same time, there would be a

25 determination of the outstanding appeal relating to

1 sentencing. On this format under which the matter

2 would be remitted to a Trial Chamber, the Appeals

3 Chamber would not be, in fact, sentencing anyone. So

4 there would be a discrepancy there between the new

5 position and the old position.

6 Would we have to say that we are revising the

7 decision of 15 July to mean this: that we would now

8 determine the sentencing appeal at the same time at

9 which a determination is made to remit the matter to a

10 Trial Chamber? Is that a little too complex?

11 MR. KEEGAN: No, Your Honour. Just one

12 moment, please.

13 [Prosecution confers]

14 MR. KEEGAN: Thank you, Your Honour. Yes,

15 Your Honour, if, in fact, the 15 July submission was

16 based on the premise, which certainly we believed it

17 was, that the Appeals Chamber would be imposing a

18 sentence, then, yes, that would be correct; however,

19 if, in fact, the position now is that the submissions

20 on sentencing would be remitted back to a Trial

21 Chamber, then, in fact, the situation is one of a

22 clarification, and along the lines of our submissions

23 with respect to the existing appeal on sentence, it

24 would be the remission back to the Trial Chamber with

25 instructions that a decision on the sentencing appeal

1 as currently lodged would be following.

2 In that situation, the Trial Chamber then has

3 the benefit of the Appeals Chamber's guidance on the

4 sentencing issues already raised at the time they

5 decide on an appropriate sentence for the additional

6 counts. That seems to us to affect the matter of

7 efficiency and also perhaps solve potential

8 difficulties for the Trial Chamber.

9 JUDGE SHAHABUDDEEN: Mr. Keegan, I wish to be

10 clear. No doubt you were, but I didn't follow you

11 exactly. You see, on the 15th of July, the Chamber

12 said words to the effect that the outstanding

13 sentencing appeal would be determined at the time when

14 the Appeals Chamber would be imposing sentences in

15 respect of the counts on which the Appeals Chamber has

16 recorded convictions where there were previous

17 acquittals.

18 If the option were used of remitting

19 sentencing to a Trial Chamber, that 15th of July

20 decision would be inoperative. It would become

21 difficult to apply. Would it then be necessary for the

22 Appeals Chamber to revise that 15th of July decision to

23 say that the sentencing appeal would now be determined

24 at the same time when a decision is taken to remit the

25 matter to the Trial Chamber in relation to the offences

1 in respect of which the Appeals Chamber has now

2 recorded convictions where there were acquittals

3 previously?

4 MR. KEEGAN: Yes, Your Honour.

5 JUDGE SHAHABUDDEEN: Yes.

6 MR. KEEGAN: The other option would be that

7 the Appeals Chamber, in its order remitting the matter

8 back, advises the Trial Chamber that it will decide the

9 existing sentencing appeal as soon as possible or

10 immediately so that the Trial Chamber has the benefit

11 of that decision before it imposes additional sentences

12 for the additional convictions.

13 JUDGE SHAHABUDDEEN: Then you're proposing a

14 three-stage scenario like this: (1) The Appeals

15 Chamber remits the matter to a Trial Chamber.

16 (2) Thereafter, the Appeals Chamber decides on the

17 outstanding appeal. (3) Thereafter, the Trial Chamber,

18 in light of that intervening decision, then passes

19 sentence. Is that the scenario you're painting for

20 us?

21 MR. KEEGAN: Yes, Your Honour.

22 JUDGE SHAHABUDDEEN: Very well. Thank you.

23 Thank you.

24 Mr. Clegg, do you follow what your colleague

25 is saying?

1 MR. CLEGG: Yes. I don't agree with it but I

2 follow it. It seems to me that it's making very hard

3 work of what I hoped would be a comparatively simple

4 exercise.

5 On the 15th of July -- I've just got the

6 transcript in front of me -- what the Court said was

7 that the appellant's appeal against sentencing

8 judgement will be determined when a decision is made as

9 to sentencing on those counts.

10 So the Appeals Chamber clearly never

11 envisaged the concept of deciding the appeal against

12 the sentences that had been passed before anyone knew

13 what the sentence was in relation to the other counts.

14 It's a fundamental principle of the Appeals Chamber's

15 function in determining an appeal against sentence, the

16 concept of the totality of that sentence and whether

17 the total sentence is right and proper, bearing in mind

18 the offences for which the defendant or appellant has

19 been convicted.

20 Here, if the Appeals Chamber hears the

21 sentencing on the counts that he has currently been

22 sentenced on, the Appeals Chamber will effectively have

23 to approach the appeal with blinkers and pretend he

24 hasn't been convicted of the other offences at all

25 because there's no sentence passed, and you can't

1 consider, in deciding whether the current sentences

2 were appropriate and the totality of that sentence was

3 right, what may or may not be the sentence in relation

4 to offences which he's never been sentenced for at

5 all. Then you have the prospect of a further appeal on

6 the other half, as it were.

7 It's a piecemeal way of doing the -- of doing

8 justice and, we would submit, an untidy way. There's a

9 simple solution: It's remitted to the Trial Chamber.

10 Hopefully it can be performed as speedily as possible.

11 There will be a short sentencing hearing there, I can't

12 imagine it would last more than an hour if briefs are

13 filed by both sides, and then this Appeals Chamber can

14 reconvene soon afterwards and hear the appeal as one

15 consolidated appeal and decide the whole thing in the

16 round. We would submit that has the attraction of

17 implicitly, speed, and reduces the number of hearings

18 by two, I think.

19 JUDGE SHAHABUDDEEN: What you're saying then

20 is the 15th of July decision sensibly, if I may say,

21 assumed the Appeals Chamber would be taking an

22 integrated approach to the matter of sentencing and

23 would be viewing the affair in its entirety, but that

24 that block approach would now be fragmented if another

25 solution were employed.

1 MR. CLEGG: Yes.

2 JUDGE SHAHABUDDEEN: But not if your

3 proposition were adopted, your proposal being that the

4 decision on the sentencing appeal should be adjourned

5 and resumed sometime after the Trial Chamber would have

6 determined what are the sentences on the counts in

7 question. Is that --

8 MR. CLEGG: Yes.

9 JUDGE SHAHABUDDEEN: Well, thank you very

10 much. Thank you.

11 Mr. Keegan, you would like to say something?

12 MR. KEEGAN: Yes, Your Honour. Just

13 briefly. We believe that the 15 July decision was

14 valid as an expeditious mechanism if, in fact, the

15 Appeals Chamber, as you stated, was going to consider

16 it. In this situation, if it is going to be remitted

17 back to the Trial Chamber, it perhaps is not such an

18 easy issue, and while simplicity is always preferable

19 in language, it may not be so preferable in procedures

20 of criminal law.

21 We are a new jurisdiction. It would seem to

22 us that the appeal here on sentencing would not have to

23 be decided with blinkers. It would be decided on

24 matters of law, the questions of law raised by the

25 appellant. Those matters could be decided irrespective

1 of the fact that the Trial Chamber still has to decide

2 on additional sentencing. In fact, the benefit of such

3 a decision would be to provide guidance to the Trial

4 Chamber in its final analysis on additional

5 sentencing.

6 So while we appreciate that it may not appear

7 at first glance to be the most efficient mechanism, it

8 may, in fact, be the most preferable.

9 JUDGE SHAHABUDDEEN: Mr. Keegan, while you're

10 on your legs, could you answer me one small question?

11 Within your experience and learning, is there any

12 precedent in any system of law for saying that a court

13 is competent to convict but not competent to impose

14 sentence in relation to that conviction?

15 MR. KEEGAN: I am not aware of any system

16 where that is the case, Your Honour, nor, in fact, is

17 it our submission here. Our argument is not that the

18 Appeals Chamber was not competent to impose sentence,

19 the issue was whether it was the most appropriate

20 course in this circumstance. And that is the substance

21 of our argument, that it is more appropriate, given

22 these circumstances, to allow the Trial Chamber to do

23 it.

24 JUDGE SHAHABUDDEEN: Well, the word

25 "appropriate" is quite useful but sometimes a little

1 dangerous. You have to find that we have another kind

2 of competence, that we have a competence to remit to a

3 Trial Chamber that the convicting court has the

4 competence to remit to another court to do the

5 sentencing. Have you applied your mind to do that?

6 MR. KEEGAN: Yes, Your Honour, to the extent

7 that we find that it falls within the inherent power of

8 a Trial Chamber under Article 25, given the authority

9 to the Appeals Chamber to reverse, revise a decision.

10 It seems to fall within the inherent powers of an

11 Appeals Chamber in all jurisdictions to then remand

12 back to a finder of fact the case with the appropriate

13 instructions.

14 JUDGE SHAHABUDDEEN: You refer to

15 Rule 118(A).

16 MR. CLEGG: Yes, Your Honour.

17 JUDGE SHAHABUDDEEN: I'd like the benefit of

18 your interpretation of (B).

19 MR. KEEGAN: Yes, Your Honour. As indicated

20 in our submissions, again it is clear from the Rules of

21 Procedure and Evidence that the Appeals Chamber has the

22 authority to impose sentence, and we outlined what we

23 thought were the three apparent situations in which an

24 Appeals Chamber could impose sentence, including the

25 present case, but it was our submission that in

1 drafting the Rules or in looking at the spirit of the

2 Rules, as a total document it appears to us that it was

3 in the context of the two primary ways in which it

4 would be appropriate for an Appeals Chamber to impose a

5 sentence, that it was in those circumstances that Rule

6 118(A) was intended to apply.

7 JUDGE SHAHABUDDEEN: Would you say that the

8 word "judgement" in (B) includes sentence when read in

9 the light of (A)?

10 MR. KEEGAN: It is not apparent from the face

11 of it, Your Honour, for two reasons. One, it talks of

12 either as having been acquitted on all charges or as a

13 result of an order pursuant to Rule 65 which deals with

14 provisional release.

15 So, in fact, on its face it would appear that

16 it is not speaking of a situation of sentence but is,

17 in fact, only talking about those two particular cases,

18 either acquittal or Rule 65 determination.

19 JUDGE SHAHABUDDEEN: I see. I see. Thank

20 you. You have looked at the Seventh Protocol to the

21 European Convention on Human Rights --

22 MR. KEEGAN: I confess I don't have it with

23 me, Your Honour. I'd have to --

24 JUDGE SHAHABUDDEEN: -- which accepts

25 cases -- I think Article 2 accepts cases in which a

1 conviction is recorded by a Court of Appeal in lieu of

2 a previous acquittal by a first instance Court. You

3 have not had occasion to address your mind to the

4 implications of that provision?

5 MR. KEEGAN: No, Your Honour. I confess I

6 have not.

7 JUDGE SHAHABUDDEEN: Thank you very much.

8 Thank you.

9 Mr. Clegg, is there anything you would need

10 to add?

11 MR. CLEGG: Only in answer to the question

12 posed by the bench as to what other jurisdiction. As

13 one finds the court that quashes an acquittal and

14 replaces it with a conviction, remit for sentence, and

15 one illustration is the Divisional Court of the Queen's

16 Bench Division in England, referred to in the

17 declaration by Judge Nieto-Navia in the judgement of

18 this appeal, on page 147, at paragraph 4, where an

19 acquittal by the Magistrate's Court is reversed by the

20 Queen's Bench Division in England, then it will

21 normally, if not invariably, remit to the Magistrate's

22 Court for sentence. That is an illustration, I think,

23 of what the court is seeking.

24 JUDGE SHAHABUDDEEN: Thank you, and that is

25 very helpful indeed. Thank you very much. Well, may I

1 consult with my colleagues for a moment?

2 [Trial Chamber confers]

3 JUDGE SHAHABUDDEEN: Now, it remains for me

4 to express the indebtedness of the bench, to counsel on

5 both sides for the assistance they have rendered to the

6 Court. The predicament in which the bench is faced is

7 manifest to learned counsel. We propose this: That

8 the proceedings would be made available to Judge Wang.

9 We would discuss fully with him and a decision would be

10 taken, and we would, by an appropriate notification,

11 either reassemble the court for delivery of the

12 judgement, or we would deliver the judgement in writing

13 without any necessity to trouble the parties to come to

14 court again.

15 Is that an agreeable procedure, do you

16 think?

17 MR. CLEGG: It's certainly agreeable to the

18 Defence.

19 JUDGE SHAHABUDDEEN: Mr. Prosecutor?

20 MR. YAPA: Yes.

21 JUDGE SHAHABUDDEEN: Then we are through with

22 the discussions on the issue on which the bench desired

23 to have your assistance this afternoon.

24 --- Whereupon the hearing adjourned

25 at 3.20 p.m. sine die