1. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Sentencing Judgement, 2 December 2003 (“Sentencing Judgement”).
2. Prosecutor v. Vidoje Blagojevic, Dragan Obrenovic, Dragan Jokic and Momir Nikolic, Case No. IT-02-60-PT, Amended Joinder Indictment, 27 May 2002 (“Indictment”), para. 25. The facts in this paragraph of the Indictment were admitted as true and correct and not disputed by the Appellant, Prosecutor v. Momir Nikolic, Case No. IT-02-60-PT, Annex “A” to the Joint Motion for Consideration of Plea Agreement between Momir Nikolic and the Office of the Prosecutor – Amended Plea Agreement, 7 May 2003 (“Plea Agreement”), para. 7.
3. Indictment, para. 26. The facts in this paragraph of the Indictment were admitted as true and correct and not disputed by the Appellant, Plea Agreement, para. 7.
4. Indictment, para. 59. The facts in this paragraph of the Indictment were admitted as true and correct and not disputed by the Appellant, Plea Agreement, para. 7.
5. Attached to the Plea Agreement, as well as to the Sentencing Judgement as Annex B, are further facts acknowledged by the Appellant, that is, the Statement of Facts and Acceptance of Responsibility, Tab A to Plea Agreement, 6 May 2003 (“Statement of Facts”).
6. Prosecutor v. Blagojevic et. al., Case No. IT-02-60-PT, Prosecution’s Motion to Dismiss Charges Against Accused Momir Nikolic, 8 May 2003. The Trial Chamber granted the motion on 12 May 2003, Prosecutor v. Momir Nikolic, Case No.: IT-02-60-PT, Decision on Motion to Dismiss Charges Against Accused Momir Nikolic, 12 May 2003.
7. Prosecutor v. Momir Nikolic, Case No. IT-02-60-PT, Plea Hearing, 7 May 2003 (“Plea Hearing”), T. 293.
8. The Trial Chamber noted with regard to the factual basis of the Appellant’s conviction the following: “In the Amended Plea Agreement, the Parties specified those paragraphs of the Indictment upon which the guilty plea is based. Furthermore, Momir Nikolic specified, inter alia, his acts and conduct in the joint criminal enterprise for which he was charged, as part of the Amended Plea Agreement. The ‘Statement of Facts and Acceptance of Responsibility’ is attached to the Judgement as Annex B. It was based upon the factual allegations in the Indictment, which Momir Nikolic acknowledged as true and correct in the Amended Plea Agreement, and the Statement of Facts that the Trial Chamber found that a sufficient factual basis for the crime of persecutions existed to accept the guilty plea. A detailed account of the facts upon which the conviction is based can be found in these two documents; below is a summary of the factual basis.” Sentencing Judgement, para. 27.
9. Plea Hearing, T. 294.
10. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Sentencing Hearing, 27-29 October 2003 (“Sentencing Hearing ”).
11. Plea Agreement, para. 4 (a).
12. Ibid., para. 14.
13. Sentencing Judgement, para. 180.
14. Ibid., para. 183.
15. Momir Nikolic’s Notice of Appeal, 30 December 2003.
16. Momir Nikolic’s Amended Notice of Appeal, 26 October 2004.
17. Momir Nikolic’s Opening Brief on Appeal, confidentially filed 24 May 2004. A public redacted version of this brief was filed on 21 September 2004.
18. Prosecution Response Brief on Appeal, confidentially filed 5 July 2004; corrigenda were filed 30 July 2004 and 2 November 2004.
19. Appellant’s Reply Brief on Appeal, confidentially filed 20 August 2004; a corrigendum was filed 1 September 2004 ; a public redacted version was filed 17 January 2005.
20. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-A, Decision [of the Deputy Registrar], 14 February 2005.
21. Momir Nikolic’s Re-Amended Notice of Appeal, 22 July 2005 (“Notice of Appeal”).
22. Revised Appellant’s Brief on Appeal Against Sentence, 29 July 2005 (“Appellant’s Brief”). The Appeals Chamber notes that the Appellant’s Brief does not conform to the Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002. The arguments in the Appellant’s Brief are not set out and numbered in the same order as in the Appellant’s Notice of Appeal and no variation was sought (see Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002, para. 4 ad finem).
23. Prosecution’s Response to Revised Appellant’s Brief on Appeal Against Sentence (“Respondent’s Brief”), 26 August 2005.
24. Reply to Prosecution’s Response to Revised Appellant’s Brief on Appeal against Sentence (“Brief in Reply”), 21 September 2005.
25. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-A, Decision on Motion for Judicial Notice, 30 September 2004; Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-A, Decision on Motion to Admit Additional Evidence, Confidential, 9 December 2004, a public redacted version was filed the same day; Prosecutor v. Momir Nikolic, Case No. IT-02-60/1- A, Decision on Motion for Leave to Supplement Conformed and Supplemented Motion to Admit Additional Evidence, 9 December 2004, a public redacted version was filed the same day; Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005.
26. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-A, Decision on Appellant’s Request to withdraw previous motions, to revise Appellant’s Brief and to amend Notice of Appeal, 19 July 2005.
27. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-A, Appeal Hearing, 5 December 2005 (“Appeal Hearing”).
28. Celebici Appeal Judgement, paras 429, 716. In addition, Trial Chambers are obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10(3) of the Statute and in Rule 101(B)(iv) of the Rules.
29. Mucic et al. Judgement on Sentence Appeal, para. 11.
30. Kupreskic et al. Appeal Judgement, para. 408; Celebici Appeal Judgement, para. 724.
31. Furundzija Appeal Judgement, para. 40; Celebici Appeal Judgement, para. 203; Mucic et al. Judgement on Sentence Appeal, para. 11; Dragan Nikolic Judgement on Sentencing Appeal, para. 8.
32. Tadic Appeal Judgement, para. 64; Furundzija Appeal Judgement, para. 37; Celebici Appeal Judgement, paras 434-435; Kupreskic et al. Appeal Judgement, para. 29; Kunarac et al. Appeal Judgement, paras 35-48; Vasiljevic Appeal Judgement, paras 4-12; Kvocka et al. Appeal Judgement, para. 14.
33. Akayesu Appeal Judgement, para. 178; Kayishema and Ruzindana Appeal Judgement, para. 320; Musema Appeal Judgement, para. 15.
34. Celebici Appeal Judgement, para. 717; Dragan Nikolic Judgement on Sentencing Appeal, para. 9; Babic Judgement on Sentencing Appeal, para. 7; Deronjic Judgement on Sentencing Appeal, para. 8; Miodrag Jokic Judgement on Sentencing Appeal, para. 8.
35. Tadic Judgement in Sentencing Appeals, para. 22; Aleksovski Appeal Judgement, para. 187; Furundzija Appeal Judgement, para. 239; Celebici Appeal Judgement, para. 725; Jelisic Appeal Judgement, para. 99; Kupreskic et al. Appeal Judgement, para. 408; Krstic Appeal Judgement, para. 242; Blaskic Appeal Judgement, para. 680; Deronjic Judgement on Sentencing Appeal, para. 8; Miodrag Jokic Judgement on Sentencing Appeal, para. 8.
36. Celebici Appeal Judgement, para. 725.
37. The Appeals Chamber notes that the Appellant jointly addresses grounds of appeal 1, 1A, and 1B as set out in the Notice of Appeal, see Appellant’s Brief, paras 15-30.
38. Appellant’s Brief, paras 5(c), (d).
39. Ibid., para. 16.
40. Ibid., para. 17; see also Brief in Reply, para. 13.
41. Appellant’s Brief, paras 18-22.
42. Ibid., paras 23-26.
43. Ibid., paras 27-28.
44. Appellant’s Brief, para. 29. The Appeals Chamber concurs with the Prosecution that it is not clear from the Appellant’s Brief whether the Appellant alleges an error in this regard and thus challenges the Plea Agreement or the Trial Chamber’s acceptance of the Plea Agreement (see Respondent’s Brief, para. 58). The Appeals Chamber notes that in paragraph 5 (e) of the Appellant’s Brief, the Appellant alleges a discernible error in this regard and refers to Ground of Appeal 1B. The Appeals Chamber considers, however, that (1) this allegation is not further developed in the Appellant’s Brief, and (2) ground of appeal 1B, as set out in the Notice of Appeal, does not include a challenge to the Plea Agreement but instead refers to the alleged statement of the Trial Chamber that the Appellant was at the centre of criminal activity in Zvornik. In any case, in the Brief in Reply, the Appellant makes it clear that there is no challenge to the Plea Agreement, see Brief in Reply, para. 13.
45. Appellant’s Brief, para. 16 (emphasis in original).
46. The Trial Chamber held that “[h]aving raised some issues of concern in cases where guilty pleas emanated from plea agreements, the Trial Chamber will now turn to some of the possible benefits of guilty pleas, including those resulting from plea agreements, and consider these in light of the purposes and mandate of the Tribunal”: Sentencing Judgement, para. 68.
47. Sentencing Judgement, para. 69.
48. See Respondent’s Brief, paras 60-61.
49. Celebici Appeal Judgement, para. 731; Kupreskic et al. Appeal Judgement, para. 442.
50. Èelebiæi Trial Judgement, para. 1225, cited with approval by Aleksovski Appeal Judgement, para. 182 ; Èelebiæi Appeal Judgement, para. 731; Krstic Appeal Judgement, fn. 431.
51. See Jelisic Appeal Judgement, para. 122; Erdemovic 1998 Sentencing Judgement, para. 16 (ii); Plavsic Sentencing Judgement, para. 65; Banovic Sentencing Judgement, para. 68 ; Dragan Nikolic Sentencing Judgement, para. 232; Jokic Sentencing Judgement, paras 76, 78; Deronjic Sentencing Judgement, para. 276; Mrða Sentencing Judgement, para. 79.
52. For example, the Appeals Chamber held in the Deronjic case that, “[b]ecause the Trial Chamber found discrepancies with the Factual Basis, it was appropriate and indeed necessary under the plain language of Rule 62bis(iv) of the Rules for the Trial Chamber to look beyond the Plea Agreement Package to other evidence as 'independent indicia' in order to satisfy itself that there was a sufficient factual basis for the guilty plea”, Deronjic Judgement on Sentencing Appeal, para. 16. Moreover, the Appeals Chamber also held in the same case that “the Trial Chamber did not err in determining the Appellant’s sentence by considering all relevant information it had before it, including the evidence submitted by the Appellant himself”, Deronjic Judgement on Sentencing Appeal, para. 19.
53. See Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Hearing for Delivery of Sentencing Judgement, 2 December 2003, T. 1684: “[Judge Liu] A written factual basis for the crime and for Mr. Nikolic's participation in it was filed with the plea agreement. The factual basis and the indictment, which Mr. Nikolic acknowledged to be true, forms the factual basis upon which the Trial Chamber will determine sentence.”
54. Appellant’s Brief, para. 18.
55. Ibid., paras 18-20.
56. Ibid., paras 21-22.
57. Brief in Reply, para. 18 (emphasis in original).
58. Sentencing Judgement, para. 31 (emphasis added).
59. Ibid., para. 36 (emphasis added).
60. Indictment, para. 59(b). The Trial Chamber referred to Indictment, para. 59, see Sentencing Judgement, fn. 62.
61. Plea Agreement, para. 5.
62. Ibid., para. 7.
63. The Appellant agreed with the Prosecution to make corrections to paragraphs 31, 39, and 45 of the Indictment, see Plea Agreement, para. 5. He also made corrections to paragraphs 9, 10, 11, 45, and 46.6 to the Indictment, see Statement of Facts, para. 15 ad finem.
64. Sentencing Judgement, para. 32 (emphasis added).
65. Alleged in paragraphs 47.6-50 of the Indictment. These paragraphs of the Indictment were not included in the Plea Agreement, see Plea Agreement, paras 5, 7.
66. Plea Agreement, para. 7 referring to the facts set out, inter alia, in paragraphs 46.6-46.12 of the Indictment.
67. Appellant’s Brief, para. 22.
68. Ibid.
69. Plea Agreement, para. 7.
70. See Indictment, paras 46.6-46.12, in which the participation of Vidoje Blagojevic, Dragan Obrenovic and Dragan Jokic is alleged.
71. Cf. Appellant’s argument in his Brief in Reply, para. 19.
72. Plea Agreement, para. 5 referring to Indictment, paras 30-33.
73. Indictment, para. 30 (emphasis added).
74. Sentencing Judgement, para. 176.
75. Sentencing Judgement, para. 177 referred to in Appellant’s Brief, para. 23.
76. Appellant’s Brief, para. 24.
77. Brief in Reply, para. 20.
78. Appellant’s Brief, para. 25 referring to Statement of Facts, para. 3; Brief in Reply, para. 20.
79. Appellant’s Brief, para. 25 citing Statement of Facts, para. 5.
80. Respondent’s Brief, paras 81-84.
81. Sentencing Judgement, para. 177.
82. Appellant’s Brief, para. 24. The Appeals Chamber notes that the Prosecution also stated in its Respondent’s Brief, para. 82 that “the Chamber stated at para. 177 that Nikolic was present at the three meetings”.
83. The Appeals Chamber notes that the French translation of paragraph 177 of the Sentencing Judgement reads “a assisté aux trois réunions à l’hôtel Fontana”. The French text seemingly implies that the Appellant was a participant in the meetings which is contrary to the English text. However, the Appeals Chamber recalls that the English version of the Sentencing Judgement is the authoritative text.
84. Statement of Facts, para. 3.
85. Ibid., para. 4.
86. Ibid., para. 5.
87. Indictment, para. 39; Plea Agreement, para. 7.
88. Ibid.; see also Statement of Facts, para. 3.
89. Indictment, para. 39; Plea Agreement, para. 7.
90. Statement of Facts, para. 4.
91. Ibid., para. 5.
92. Sentencing Judgement, para. 177.
93. Appellant’s Brief, para. 25.
94. Sentencing Judgement, para. 177 referred to in Appellant’s Brief, para. 23.
95. Appellant’s Brief, para. 26.
96. Sentencing Judgement, para. 177.
97. Ibid.: “Momir Nikolic was present at the Hotel Fontana during the three meetings in which the fate of the Muslim population was discussed and decided. He did not raise any objections to what he was told was the plan: to deport Muslim women and children to Muslim held territory, and to separate, detain, and ultimately kill the Muslim men. Rather than resist, Momir Nikolic recommended possible detention and execution sites.” (Emphasis added).
98. Appellant’s Brief, paras 27-28.
99. Brief in Reply, para. 16.
100. Statement of Facts, para. 15 ad finem.
101. Sentencing Judgement, para. 2.
102. Appellant’s Brief, para. 5(b).
103. Ibid., paras 13-14.
104. Brief in Reply, para. 3; see also Notice of Appeal, para. 12; AT. 44.
105. Brief in Reply, para. 11.
106. Respondent’s Brief, paras 39, 45, 50, respectively.
107. Ibid., paras 53-54.
108. Furund‘jia Appeal Judgement, para. 250; Celebici Appeal Judgement, para. 720.
109. Celebici Appeal Judgement, para. 721.
110. Ibid., para. 717. See also para. 719: “[T]he Appeals Chamber notes that as a general principle such comparison is often of limited assistance. While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results.”
111. Sentencing Judgement, fn. 195.
112. Jelisic Appeal Judgement, para. 96; confirmed in Babic Judgement on Sentencing Appeal, para. 33.
113. AT. 59.
114. AT. 59. Appellant’s Brief, para. 13(b).
115. AT. 47, 59.
116. AT. 59.
117. Appellant’s Brief, para. 13(b).
118. See Plea Agreement, para. 5.
119. See also Prosecutor v. Dragan Obrenovic, Case No. IT-02-60-PT, Annex “A” to the Joint Motion for Consideration of Plea Agreement between Dragan Obrenovic and the Office of the Prosecutor – Plea Agreement, 20 May 2003, (“Obrenovic Plea Agreement”), para. 5.
120. Plea Agreement, para. 5; and Obrenovic Plea Agreement, para. 5 referring to paragraph 30 of the Indictment.
121. Plea Agreement, para. 5; and Obrenovic Plea Agreement, para. 5.
122. Appellant’s Brief, para. 13(b): [Obrenovic’s] responsibility lay largely in his failure to prevent his subordinates from participating in the detention, murder and burial of Bosnian Muslim men, being aware of the murder operation taking place.” (Emphasis added).
123. Obrenovic Sentencing Judgement, para. 151; see also ibid., para. 88.
124. Sentencing Judgement, para. 176, see also para. 123, in which the Trial Chamber characterises Momir Nikoli c as “active and willing participant”.
125. Ibid., paras 137, 139. Obrenovic Sentencing Judgement, paras 102, 103.
126. Indictment, para. 29; Obrenovic Sentencing Judgement, para. 40.
127. Obrenovic Sentencing Judgement, paras 85-87, 99.
128. Sentencing Judgement, paras 135, 139.
129. Respondent’s Brief, para. 42.
130. Obrenovic Sentencing Judgement, para. 129.
131. Sentencing Judgement, para. 156. The Appeals Chamber notes that the findings on the Appellant’s credibility with respect to his co-operation is appealed by the Appellant, see seventh ground of appeal, infra, chapter VIII. The issue at hand, however, is the question of whether the Trial Chamber erred, based on its findings in the respective judgements, in treating similar cases differently.
132. Obrenovic Sentencing Judgement, para. 121.
133. Sentencing Judgement, para. 161. The Appeals Chamber notes that this has been appealed by the Appellant, see eighth ground of appeal, infra, chapter IX.
134. Obrenovic Sentencing Judgement, para. 134.
135. Sentencing Judgement, para. 164.
136. Ibid., para. 164; Obrenovic Sentencing Judgement, para. 134.
137. Obrenovic Sentencing Judgement, para. 134.
138. Ibid., para. 146.
139. Appellant’s Brief, para. 13(a).
140. Sentencing Judgement, fn. 195.
141. Indictment, paras 27, 30.
142. Sentencing Judgement, para. 123 citing Statements of Facts, paras 4, 6, 9, 13.
143. Sentencing Judgement, para. 176.
144. Ibid., para. 178.
145. Krstic Appeal Judgement, paras 272-273.
146. Respondent’s Brief, paras 46- 51; AT. 67-68. The Appeals Chamber also notes the Appellant’s submission in this regard, Appellant’s Brief, para. 13(c).
147. Both parties in the Blagojevic case have appealed the Trial Judgement. In particular, the Prosecution alleges in that case in its fourth ground of appeal that “[t]he Trial Chamber erred in imposing a sentence on Blagojevic which was, in the circumstances manifestly inadequate and by, inter alia, failing to find that Blagojevic’s superior position was an aggravating factor […], and taking into account Blagojevic’s work in de-mining a mitigating factor […]”, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, Prosecution’s Notice of Appeal, 23 February 2005, para. 15. Vidoje Blagojevic also appealed his sentence as his eighth ground of appeal, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, Defence of Accused Mr. Vidoje Blagojevic Notice of Appeal, public redacted version, 31 May 2005, para. 28.
148. The Appellant recognises that the Appeals Chamber’s powers of review to compare his case to the Blagojevic case is “somewhat restricted” since the Prosecution appealed Vidoje Blagojevic’s sentence, Brief in Reply, para. 10. He argues, however, that “even if the Appeals Chamber were to increase the sentences imposed by the Trial Chamber, any increases would presumably have to be moderated by a 'double jeopardy' argument, they previously having been sentenced to lower sentences at first instance”, Brief in Reply, para. 10(c). The Appeals Chamber fails to see how the argument that the accused cannot be convicted twice for the same conduct (ne bis in idem) is related to a decision of the Appeals Chamber to increase the sentence on appeal.
149. Appellant’s Brief, para 14.
150. Ibid.
151. Ibid.
152. Appellant’s Brief, para. 30.
153. Brief in Reply, para. 22.
154. Ibid.
155. Appellant’s Brief, paras 33-34 referring to Sentencing Judgement, paras 121, 123, which are part of the Trial Chamber’s assessment of the gravity of the offence; and referring to Sentencing Judgement, paras 135, 137, in which the Trial Chamber addressed the aggravating circumstances. See also AT. 71-73, in which Defence counsel refers to paragraphs 103, 114, and 124 of the Sentencing Judgement.
156. Appellant’s Brief, para. 35.
157. Respondent’s Brief, para. 92.
158. Deronjic Judgement on Sentencing Appeal, para. 106. The Appeals Chamber notes that the Trial Chamber expressly abided by this principle in relation to the “depravity” of the crime, see Sentencing Judgement, para. 136: “The Trial Chamber finds that the depravity of the crimes is subsumed in the overall gravity of the offence, and has already been addressed above. Therefore, the Trial Chamber does not consider this separately as an aggravating factor.”
159. Appellant’s Brief, paras 33-34 referring to Sentencing Judgement, paras 123, 135.
160. Appellant’s Brief, para. 32 referring to Sentencing Judgement, para. 116.
161. Respondent’s Brief, paras 94- 96.
162. Sentencing Judgement, para. 123 (footnotes omitted, the footnotes referred to Statement of Facts, paras 4, 6, 9, 13).
163. Ibid., para. 135.
164. Ibid., paras 123, 135. The Appeals Chamber further notes that the Trial Chamber explicitly stated again in paragraph 139 of the Sentencing Judgement that it considered not only his position of authority but also his role as an aggravating circumstance: “In summary, the Trial Chamber finds that the following aggravating circumstances have been proven beyond reasonable doubt: the position of authority and role of Momir Nikolic […]”.
165. Appellant’s Brief, paras 33-34. The Appellant refers to paragraph 121 (gravity of the offence) and to paragraph 137 of the Sentencing Judgement (aggravating circumstance).
166. Respondent’s Brief, para. 104.
167. Ibid., paras 109-110.
168. Sentencing Judgement, para. 121.
169. Ibid., para. 137.
170. Notice of Appeal, para. 5.
171. Respondent’s Brief, para. 91.
172. The Appeals Chamber, however, notes that the Appellant puts forward an argument in his eighth ground of appeal that the mistranslation had an influence on the Trial Chamber’s assessment of the mitigating circumstance of his remorse (Appellant’s Brief, para. 70). This argument will be addressed in the Appellant’s eighth ground of appeal.
173. Appellant’s Brief, para. 31.
174. AT. 61-62, 73-74.
175. Sentencing Judgement, para. 122.
176. Appendix C of Momir Nikolic’s Opening Brief on Appeal, confidentially filed 24 May 2004, a public redacted version was filed on 21 September 2004.
177. The relevant part of the transcript (corrected version) reads: “The persecution campaign in the Plavsic case included the persecution of Bosnian Muslims, Bosnian Croats, and other non-Serbs in 37 municipalities in Bosnia and Herzegovina. The persecution campaign in the Nikolic case relates only to the Muslims of Srebrenica and to only one municipality, the Srebrenica municipality. In the persecution campaign in the Plavsic case, at least 50.000 persons were killed, while in the Nikolic case around 7,000 persons were killed. In the Plavsic case, the persecution campaign lasted longer, from the 1st of July, 1991 to the 30th of December, 1992, while in the Nikolic case it lasted from the 4th of July, 1995 to the 1st of November, 1995.”
178. AT. 62.
179. AT. 74.
180. The Appellant could not have intervened since he heard the untranslated version of the closing remarks of his counsel.
181. Chapter IV. C. 2. (a) of the Sentencing Judgement.
182. Aleksovski Appeal Judgement, para. 182; see also Celebici Appeal Judgement, para. 731; Jelisic Appeal Judgement, para. 101; Dragan Nikolic Sentencing Appeal Judgement, para. 18. This was also recognised by the Trial Chamber, see Sentencing Judgement, para. 102.
183. Appellant’s Brief, para. 5(a).
184. Ibid., paras 6-7.
185. Ibid., paras 8-10.
186. Ibid., para. 11.
187. Rule 101(B)(ii) of the Rules. As stated in the Serushago Sentencing Appeal Judgement, para. 22, Trial Chambers are “required as a matter of law to take account of mitigating circumstances.” See also Musema Appeal Judgement, para. 395. The mitigating circumstances have to be taken into account if proven on a balance of probabilities, i.e., the circumstance in question must have existed or exist “more probably than not”, Celebici Appeal Judgement, para. 590.
188. Jelisic Appeal Judgement, para. 122.
189. Appellant’s Brief, paras 6-7.
190. Ibid., para. 7.
191. Sentencing Judgement, paras 57 -73; the Trial Chamber concluded in para. 73: “The Trial Chamber finds that, on balance, guilty pleas pursuant to plea agreements, may further the work – and the mandate – of the Tribunal. The Trial Chamber further finds, however, that based on the duties incumbent on the Prosecutor and the Trial Chambers pursuant to the Statute of the Tribunal, the use of plea agreements should proceed with caution and such agreements should be used only when doing so would satisfy the interests of justice.”
192. Sentencing Judgement, para. 149. See also Sentencing Judgement, para. 171, 145.
193. Sentencing Judgement, para. 151.
194. Appellant’s Brief, para. 8. AT. 50.
195. Appellant’s Brief, para. 8.
196. Ibid., para. 9. See also AT. 50.
197. Respondent’s Brief, para. 16.
198. Erdemovic 1998 Sentencing Judgement, para. 16(ii).
199. Dragan Nikolic Judgement on Sentencing Appeal, para. 51. The Appeals Chamber notes that the Trial Chamber also considered that “the saving of resources cannot be given undue consideration or importance”, see Sentencing Judgement, para. 67. The Appellant agreed with that statement, see AT. 50.
200. The Appeals Chamber also notes that the International Tribunal’s completion strategy is not a factor to be taken into account in sentencing.
201. Appellant’s Brief, para. 5(a); see also para. 11; AT. 45-46.
202. Appellant’s Brief, para. 11. See also AT. 46, 48.
203. Appellant’s Brief, para. 11.
204. Respondent’s Brief, para. 21 referring to Sentencing Judgement, para. 142.
205. Ibid., referring to Sentencing Judgement, para. 145.
206. Ibid., para. 22 referring to Sentencing Judgement, para. 149.
207. AT. 70: “[Peter McCloskey:] I'll end briefly by emphasising a point that has already been made. Captain Nikolic was the first VRS officer to stand up in front of the world and admit Srebrenica happened and admit his responsibility in it and take responsibility for it. Obrenovic came afterward, and I can tell you Obrenovic was influenced by the fact that Mr. Nikolic got up and did this. And when you look at the record, especially the Muslims, Mr. Nikolic has taken responsibility at this time in history for this institution and for himself, helped the reconciliation of many, many Muslims that I know personally suffered as a result of this. People came up to me constantly, repeatedly, saying that now they could go home, now they have this incredible relief. There's an article of one such Muslim that was written in the "New York Times," that’s part of the record. Read that. You'll get the feeling for how important Mr. Nikolic's plea was to this institution, to this case, to Bosnia, and to reconciliation. And I say that in all candour and honesty, and I'll look in each one of your eyes, there is no question that what he did was very important for this case and the people of Bosnia. Thank you.”
208. Jelisic Appeal Judgement, para. 121.
209. Sentencing Judgement, para. 142.
210. Sentencing Judgement, para. 146 citing “Truth at The Hague”, Emir Suljagic, New York Times, 1 June 2003, Defence Ex. DS-18.
211. Sentencing Judgement, para. 147 citing an “Open Letter” from the mayor of the Srebrenica municipality, dated 8 October 2003, Defence Ex. DS-17.
212. Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Momir Nikolic’s Sentencing Brief, (Partly Confidential ), 14 July 2003, para. 28.
213. Sentencing Judgement, para. 145.
214. Ibid., fn. 229.
215. Ibid., para. 149.
216. Ibid., para. 145.
217. Ibid., para. 149.
218. Appellant’s Brief, para. 39.
219. Ibid., paras 5(f), 39.
220. Ibid., para. 49.
221. Respondent’s Brief, para. 114.
222. Appellant’s Brief, paras 5(f), 39.
223. Ibid., paras 37-38.
224. Ibid., para. 39.
225. Respondent’s Brief, para. 123, see also para. 133.
226. Jelisic Appeal Judgement, para. 126: “The Appeals Chamber notes that the determination of whether the cooperation should be considered as substantial and therefore whether it constitutes a mitigating factor is for the Trial Chamber to determine.” See also ibid., para. 124: “What constitutes ‘substantial cooperation’ is not defined in the Rules and is left to the discretion of the Trial Chamber. It was for the Trial Chamber to weigh the circumstances relating to any cooperation.” The Appeals Chamber also held that, if the Trial Chamber deemed itself not able to assess the relevance and value of the information provided by the accused, it was within the discretion of a Trial Chamber to rely on the Prosecution’s assessment of the co-operation, see Dragan Nikolic Judgement on Sentencing Appeal, paras 61-63.
227. Plea Agreement, para. 10 (emphasis added).
228. Sentencing Judgement, para. 171. The Appeals Chamber notes that the substantial co-operation with the Prosecution is explicitly mentioned as a mitigating circumstance in Rule 101(B)(ii) of the Rules.
229. Babic Judgement on Sentencing Appeal, para. 44 referring to Kayishema and Ruzindana Appeal Judgement, para. 366; Niyitegeka Appeal Judgement, para. 266.
230. Babic Judgement on Sentencing Appeal, para. 44.
231. See Kunarac et al. Appeal Judgement, para. 41: “Pursuant to Article 23(2) of the Statute, the Trial Chamber has an obligation to set out a reasoned opinion. In the Furundzija Appeal Judgement, the Appeals Chamber held that Article 23 of the Statute gives the right of an accused to a reasoned opinion as one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute. This element, inter alia, enables a useful exercise of the right of appeal available to the person convicted. Additionally, only a reasoned opinion allows the Appeals Chamber to understand and review the findings of the Trial Chamber as well as its evaluation of evidence.” (Footnote omitted).
232. Sentencing Judgement, para. 155.
233. Appellant’s Brief, para. 49.
234. Ibid., para. 40.
235. AT. 52.
236. Appellant’s Brief, para. 41. AT. 53-54.
237. Appellant’s Brief, para. 41.
238. Ibid., referring to Sentencing Hearing, T. 1670-1673 (the four documents mentioned consist of three orders and one letter).
239. Ibid., para. 42.
240. AT. 53. See also Appellant’s Brief, para. 45.
241. Respondent’s Brief, para. 127.
242. Ibid.
243. Ibid., para. 128.
244. Ibid.
245. Sentencing Judgement, para. 156 (footnotes omitted).
246. Ibid., fn. 252.
247. Plea Agreement, para. 9.
248. Ibid., para. 11.
249. Ibid., para. 10.
250. The Dutchbat officer Franken stated that the Appellant came on the 14th or the 15th July to the Dutch camp and asked for the payment of a bill for the building the UN Military Observers rented as well as for the payment for the POWs the Bosnian Serb army took (Blagojevic Trial, BT. 1557-1559). This passage of the transcript was read out to the Appellant during his testimony (Blagojevic Trial, BT. 2224) by Mr. Karnavas, counsel for Vidoje Blagojevic, and the Appellant answered: “What you have read, Mr. Karnavas, never happened. And I never had any obligation or duty to ask for any kind of rent. […] I never asked anything like that of Mr. Franken, nor did I discuss any such thing with him. As for the prisoners and their status and payment for them, absolutely not, except for the physical security of the prisoners by the Dutch Battalion, I had nothing to do with their stay there, their status, their departure from there or anything else in that connection”: Blagojevic Trial, BT. 2225. Furthermore, the discussion between the counsel of Vidoje Blagojevic and the Appellant concluded as follows: “Mr. Karnavas: Do you recall showing up with a blue Toyota that belonged to Rizo with Rizo in the car trying to collect rent from Colonel Franken? Major at the time. Do you recall that? A. No, Mr. Karnavas. I do not recall that, nor did that happen. That is not true”: Blagojevi c Trial, BT. 2227. Furthermore, Blagojevic Trial, BT. 2229 reads as follows : “Mr. Karnavas: […] Did you ever show up and meet with Colonel or Major Franken on the 14th or 15th in Mr. Rizo's blue Toyota? A. No. In that period of time, I know for certain that I did not meet with Mr. Franken.”
251. During the Sentencing Hearing, the Appellant stated: “Before me I have some documents on the basis of which the Trial Chamber can see that by an order from the corps commander, General Zivanovic, I was designated as the controlling organ for all the payments made to that company, all the trade to that company, and that concerned all transactions with the Dutch Battalion and all the organisations which traded with the Podrinje company from Bratunac, that is to say, with the hotel in Bratunac. […] I am supposed to control these transactions. […] And before this Trial Chamber, I would like to state that it is possible that at the time when I had contact, when I contacted the representative of the Dutch Battalion, I requested that the debts be paid, the debts for staying in the Hotel Fontana and for being -- and for food consumed in the Hotel Fontana. But I would like to claim that I never asked anyone -- I never asked any Dutch battalion members for funds for my personal use. Only what I have mentioned is possible, because these documents that I have before me provide proof -- these documents have been stamped, and they prove that the Dutch would pay in cash and that the military observers would pay in the way that I have explained to you.” (Sentencing Hearing, T. 1671-1672).
252. Sentencing Judgement, para. 156.
253. Ibid., fn. 252.
254. Appellant’s Brief, para. 43.
255. Ibid., referring to Deronjic Sentencing Judgement, paras 252, 260.
256. AT. 54.
257. Respondent’s Brief, para. 132. The Prosecution notes that this is only valid with the exception of aspects noted in the Prosecution’s Supplemental Submissions concerning credibility, Respondent’s Brief, fn. 115.
258. See argument of Appellant’s counsel during the Appeal Hearing in this regard, AT. 54: “But what the [Sentencing Judgement] fails to state is that it was Mr. Nikolic himself, who shortly having made the statements told the Prosecution – it was not the Prosecution finding out and in that way he then changed. […] He brought it to the attention of the Prosecution and not the other way around.” The Prosecution agreed to counsel’s statement of events, AT. 61: “And in respect of the submissions by [counsel of Defense] on Mr. Nikolic’s behalf, there is nothing he has said which I take issue with.”
259. Appellant’s Brief, para. 44.
260. Ibid., para. 45 referring to Article 6 (1) of the European Convention of Human Rights and Freedoms. See also AT. 53, 55.
261. Appellant’s Brief, para. 46.
262. Ibid., para. 47 referring to Sentencing Judgement, para. 25.
263. Ibid., para. 48.
264. Respondent’s Brief, paras 136 -138.
265. Ibid., para. 139.
266. Sentencing Judgement, para. 156.
267. AT. 52, 54-55.
268. Appellant’s Brief, para. 5(g). AT. 55-56.
269. Appellant’s Brief, para. 51.
270. Ibid.: “It is submitted that this statement [at the Sentencing Hearing] should have been accepted as a sincere expression of remorse and that the Trial Chamber erred in finding that it could not give substantial weight to this factor […].”
271. Todorovic Sentencing Judgement, para. 89; Erdemovic 1998 Sentencing Judgement, para. 16(ii); Blaskic Trial Judgement, para. 775; Serushago Sentencing Judgement, paras 40- 41; Ruggiu Trial Judgement, paras 69-72; Simic Sentencing Judgement, para. 92; Banovic Sentencing Judgement, para. 71; Dragan Nikolic Sentencing Judgement, paras 241-242; Jokic Sentencing Judgement, para. 89 ; Deronjic Sentencing Judgement, para. 264; Babic Sentencing Judgement, para. 84.
272. Vasiljevic Appeal Judgement, para. 177; Blaskic Appeal Judgement, para. 705; Kvo~ka et al. Appeal Judgement, para. 715.
273. Sentencing Judgement, para. 161.
274. Blaskic Appeal Judgement, para. 705; Kvo~ka et al. Appeal Judgement, para. 715; see also Vasiljevic Appeal Judgement, para. 177: “in order for remorse to be considered as a mitigating factor it has to be sincere.”
275. Sentencing Judgement, para. 161.
276. Appellant’s Brief, para. 52.
277. Ibid., paras 52 (a), ( b), 53-64.
278. Ibid., paras 52(c), 65 -68.
279. Ibid., para. 70.
280. Ibid., paras 52(a), 53.
281. Appellant’s Brief, paras 52(b ), 64. AT. 58.
282. Appellant’s Brief, para. 61. See also AT. 56-57. The Appellant also argues that the fact that he did not discriminate against different ethnic groups is an aspect of his remorse (AT. 57 ; see also Appellant’s Brief, paras 59-60). The Appeals Chamber notes however, that he pleaded guilty to the crime of persecutions and that his “conduct was committed on political, racial, or religious grounds, and was committed with requisite discriminatory intent” (Indictment, para. 58(c)). In relation to his conduct prior to the war, the Trial Chamber explicitly found that he did “not discriminate prior to the war”, see Sentencing Judgement, para. 164.
283. Appellant’s Brief, para. 62. AT. 49-50.
284. Appellant’s Brief, para. 64.
285. Sentencing Judgement, para. 160 referring to Blagojevic Trial, 19 September 2003, BT. 1595 and 29 September 2003, BT. 2133-35, 2145-47.
286. Appellant’s Brief, para. 64 (emphasis added).
287. The Appeals Chamber notes that that the Appellant during the proceeding in Blagojevic gave the following explanation why he falsely admitted to a crime he had not committed: “Once the agreements with the Prosecution had already advanced, I came to the decision that there would be no agreement, and I really wanted to obtain an agreement. I made a mistake. I admitted something I hadn’t done because I wanted to obtain such an agreement. I accepted responsibility for something that I had not done. I accepted a greater degree of responsibility.” Blagojevic Trial Hearing 19 September 2003, BT. 1595, referred to in Sentencing Judgement, fn. 257.
288. Appellant’s Brief, para. 61.
289. Sentencing Judgement, para. 158 citing Sentencing Hearing, T. 1681-1682. The Appeals Chamber notes, however, that the reference of the Trial Chamber is erroneous, the cited statement can rather be found in Sentencing Hearing, T. 1676-1677. The relevant part of the Sentencing Hearing, as expressly cited by the Trial Chamber in paragraph 158 of the Sentencing Judgement, reads: “I sincerely wish before this Chamber and before the public, especially the Bosniak public, to express my deep and sincere remorse and regret because of the crime that occurred and to apologise to the victims, their families, and the Bosniak people for my participation in this crime. I am aware that I cannot bring back the dead, that I cannot mitigate the pain of the families by my confession, but I wish to contribute to the full truth being established about Srebrenica and the victims there and for the government organs of Republika Srpska, and all the individuals who took part in these crimes should follow in my footsteps and admit to their participation and their guilt, that they should give themselves in and be held responsible for what they have done. By my guilty plea, I wanted to help the Tribunal and the Prosecutors to arrive at the complete and full truth and the victims, their brothers, mothers, and sisters should -- I wanted to avoid their being subjected to additional suffering and not to remind them of this terrible tragedy. Your Honours, I feel that my confession is an important step toward the rebuilding of confidence and coexistence in Bosnia and Herzegovina, and after my guilty plea and sentencing, after I have served my sentence, it is my wish to go back to my native town of Bratunac and to live there with all other peoples in peace and harmony, such as prevailed before the outbreak of the war.”
290. Appellant’s Brief, para. 62.
291. Respondent’s Brief, para. 179.
292. Sentencing Judgement, paras 146 -147. The Trial Chamber refers to an article from Emir Suljagic and explicitly cited the statement that the detailed confession “punches a big hole in the Bosnian Serb wall of denial” and the relief of the author of that article that “[w]e Bosnian Muslims no longer have to prove we were victims.” (ibid., para. 146.) Also, the Trial Chamber explicitly cites the “open letter” of the mayor of the Srebrenica municipality to the effect that he believes that “not only Momir Nikolic and others confessing their personal responsibility, but the clarification of the role of others in the Serbian Army and officials of the Serbian people, will force the RS authorities to finally admit that a crime occurred in Srebrenica, perpetrated by individuals and groups from the ranks of the Serbian people.” (ibid. para. 147.).
293. Cf. Miodrag Jokic Judgement on Sentencing Appeal, para. 82: “The Appeals Chamber finds that it was within the Trial Chamber’s discretion to consider these factors as indications of the Appellant’s remorse and his substantial cooperation with the International Tribunal ; the Trial Chamber was not bound to consider these factors when assessing the Appellant’s good character as well.” See also ibid., para. 79: “The Appeals Chamber finds that it was within the Trial Chamber’s discretion to assess the testimony of Mr. Stefanovic as evidence of the Appellant’s remorse; the Trial Chamber was not bound to consider this factor when assessing the Appellant’s good character as well.”
294. Appellant’s Brief, para. 65. See also AT. 58.
295. Appellant’s Brief, para. 69, referring in paras 66 and 67 of the Appellant’s Brief to Banovic Sentencing Judgement, para. 72 and Dragan Nikolic Sentencing Judgement, para. 234.
296. AT. 48.
297. Sentencing Judgement, fn. 257.
298. Dragan Nikolic Sentencing Judgement, para. 234.
299. Banovic Sentencing Judgement, para. 71. Article 21(3) of the Statute of the International Tribunal provides: “The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute”.
300. Dragan Nikolic Sentencing Judgement, para. 234.
301. Sentencing Judgement, para. 148 : “Of course, under the Statute of the Tribunal, an accused has the right to be presumed innocent, to have a fair and public trial and to not be compelled to confess guilt.”
302. Celebici Appeal Judgement, para. 783.
303. Respondent’s Brief, para. 164.
304. Appellant’s Brief, para. 70.
305. Ibid.
306. Ibid.
307. Supra, chapter VI.
308. See Sentencing Judgement, paras 157-161.
309. The Appeals Chamber notes that the Appellant reiterated his remorse in his personal address at the end of the Appeal Hearing, see AT. 74: “Your Honours, I would, with this address, like to express my sincere remorse and regret about the awful crimes that took place after the fall of Srebrenica. I would like to express particular respect towards the victims because of the terrible crimes against their families, their brothers, sisters, friends, who have to now live without these people and whose suffering will never end.”
310. Respondent’s Brief, para. 186.
311. See Dragan Nikolic Judgement on Sentencing Appeal, para. 89; Babic Judgement on Sentencing Appeal, para. 30.