Case No. IT-02-60/1-A

Before:
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Theodor Meron

Registrar:
Mr. Hans Holthuis

Judgement of:
8 March 2006

_____________________________________________

Counsel for the Prosecution:

Mr. Peter M. Kremer, QC
Mr. Peter McCloskey
Ms. Marie-Ursula Kind

Counsel for the Appellant:

Mr. Rock Tansey
Mr. R J. Livingston

I. INTRODUCTION
1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“International Tribunal”) is seised of an appeal from the Sentencing Judgement rendered by Trial Chamber I, Section A, on 2 December 2003 in the case of Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S (“Sentencing Judgement”).¹

2. The events giving rise to this appeal took place in Eastern Bosnia and Herzegovina after the fall of the enclave of Srebrenica. Between 6 and 11 July 1995, the enclave of Srebrenica was shelled and attacked by units of the Drina Corps,² and “[i]n the several days following this attack on Srebrenica, VRS forces captured, detained, summarily executed, and buried over 7,000 Bosnian Muslim men and boys from the Srebrenica enclave, and forcibly transferred the Bosnian Muslim women and children of Srebrenica out of the enclave.”³ According to the count of the Indictment to which Momir Nikolic (“Appellant”) pleaded guilty, “the crime of persecutions was perpetrated, executed, and carried out by and through the following means: (a) the murder of thousands of Bosnian Muslim civilians, including men, women, children and elderly persons; (b) the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings at Potocari and in detention facilities in Bratunac and Zvornik; (c) the terrorising of Bosnian Muslim civilians in Srebrenica and at Potocari; (d) the destruction of personal property and effects belonging to the Bosnian Muslims; and (e) the forcible transfer of Bosnian Muslims from the Srebrenica enclave.”⁴

3. In the Plea Agreement,⁵ the parties, inter alia, agreed that the Appellant would plead guilty to Count 5 of the Indictment, namely persecutions, a crime against humanity, punishable under Article 5(h) of the Statute of the International Tribunal. In return, the Prosecution would move to dismiss all remaining counts of the Indictment, which included genocide, or in the alternative, complicity to commit genocide; extermination, a crime against humanity; murder, a crime against humanity; murder, a violation of the laws or customs of war; and inhumane acts (forcible transfer), a crime against humanity.⁶ At the Plea Hearing, the Appellant pleaded guilty to Count 5 of the Indictment.⁷ The Trial Chamber found that the facts of the Plea Agreement and the attached Statement of Facts provided a sufficient factual basis for a finding of guilt.⁸ Accordingly, it entered a finding of guilt and convicted Momir Nikolic on Count 5 of the Indictment, namely for the crime of persecutions, a crime against humanity.⁹

4. The Sentencing Hearing lasted three days, from 27 to 29 October 2003.¹⁰ In the Plea Agreement, the parties agreed that the Prosecution would recommend to the Trial Chamber a sentence within the range of 15 to 20 years and the Defence would recommend a sentence of 10 years.¹¹ The Appellant agreed not to appeal the sentence imposed by the Trial Chamber unless the sentence was above the range recommended by the Parties.¹² The Trial Chamber found that it could not accept the sentences recommended by either the Defence or the Prosecution;¹³ rather it sentenced the Appellant to 27 years’ imprisonment.¹⁴

5. The Appellant filed an initial notice of appeal on 30 December 2003,¹⁵ amending it on 26 October 2004.¹⁶ He filed an initial brief on appeal on 24 May 2004,¹⁷ to which the Prosecution responded on 5 July 2004;¹⁸ the Appellant filed his initial brief in reply on 20 August 2004.¹⁹ On 7 February 2005, the Appellant’s assigned lead counsel on appeal submitted a request to withdraw her assignment and recommended Mr. Rock Tansey as replacement counsel; the Registrar decided to withdraw the assignment of former lead counsel and to assign Mr. Rock Tansey as lead counsel to the Appellant on 14 February 2005.²⁰ After the assignment of the new defence counsel, the Appellant re-filed a Notice of Appeal on 22 July 2005, amending the references to the Sentencing Judgement in ground 1B, which were adjusted to reflect the relevant passages in the Sentencing Judgement²¹ and a revised Appellant’s Brief on 29 July 2005.²² The Prosecution filed its Respondent’s Brief on 26 August 2005.²³ A Brief in Reply was filed on 21 September 2005.²⁴ The Appellant filed motions seeking the admission of additional evidence and on judicial notice, which the Appeals Chamber did not grant²⁵ or which the Appellant eventually did not pursue.²⁶ The hearing on appeal took place on 5 December 2005.²⁷
   II. STANDARD OF REVIEW

6. The relevant provisions on sentencing are Articles 23 and 24 of the Statute and Rules 100 to 106 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”). Both Article 24 of the Statute and Rule 101 of the Rules contain general guidelines for a Trial Chamber that amount to an obligation to take into account the following factors in sentencing: the gravity of the offence, the individual circumstances of the convicted person, the general practice regarding prison sentences in the courts of the former Yugoslavia, and aggravating and mitigating circumstances.²⁸

7. Appeals against sentence, as appeals from a trial judgement, are appeals stricto sensu;²⁹ they are of a corrective nature and are not trials de novo.³⁰ Pursuant to Article 25 of the Statute, the role of the Appeals Chamber is limited to correcting errors of law invalidating a decision and errors of fact which have occasioned a miscarriage of justice.³¹ These criteria are well established in the jurisprudence of the International Tribunal ³² and the International Criminal Tribunal for Rwanda.³³

8. Trial Chambers are vested with a broad discretion in determining an appropriate sentence, due to their obligation to individualise penalties to fit the circumstances of the accused and the gravity of the crime.³⁴ As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law.³⁵ It is for the Appellant to demonstrate how the Trial Chamber ventured outside its discretionary framework in imposing his sentence.³⁶
   III. GROUNDS OF APPEAL 1, 1A, AND 1B: WHETHER THE TRIAL CHAMBER VENTURED OUTSIDE THE FACTS OF THE GUILTY PLEA WHEN ASSESSING THE GRAVITY OF THE OFFENCE

9. In these grounds of appeal,³⁷ the Appellant submits that the Trial Chamber erred by venturing outside the facts of the guilty plea when assessing the gravity of the offence.³⁸ The Appellant claims that a Trial Chamber cannot look “outside the facts of the guilty plea”³⁹ and must rely only upon the facts mentioned in the Statements of Facts annexed to the guilty plea.⁴⁰ The Appellant draws the Appeals Chamber’s attention to specific paragraphs of the Sentencing Judgement, concerning (1) the events in Zvornik,⁴¹ (2) the meetings at the Hotel Fontana,⁴² and (3) the Trial Chamber’s overstatement of his rank.⁴³ He concludes that if the Trial Chamber was not willing to limit itself to the facts found in the Statement of Facts, it should have refused to accept the Amended Plea Agreement.⁴⁴
   A. Preliminary issue

10. The Appellant first argues that the Trial Chamber erred “if by saying in paragraph 69 [of the Sentencing Judgement] that the principal consideration is the gravity of the offence and not the guilty plea, the Trial Chamber meant that it was entitled to look in deciding the gravity of the offence outside the facts of the guilty plea”.⁴⁵

11. The Appellant has misinterpreted the Trial Chamber’s statement. Paragraph 69 of the Sentencing Judgement is within the context of the Trial Chamber’s discussion of the possible benefits of guilty pleas at the International Tribunal.⁴⁶ This paragraph, in its relevant part, reads:

    Persons who plead guilty are convicted upon the acceptance of the guilty plea. Upon conviction, a trial chamber will determine an appropriate sentence and will take as its principal consideration, as will be discussed below, the gravity of the offence – and not the guilty plea – in determining an appropriate sentence. Thus, a guilty plea leads directly to the fulfilment of a fundamental purpose of this Tribunal.⁴⁷

    The Appeals Chamber concurs with the Prosecution that the Trial Chamber merely reiterates well established jurisprudence in this paragraph.⁴⁸ The gravity of the offence is the primary consideration when imposing a sentence ⁴⁹ and is the “litmus test” for determining an appropriate sentence.⁵⁰ The fact that the Appellant pleaded guilty is not the principal consideration in sentencing, although it can be taken into account as a mitigating circumstance.⁵¹

12. Although there can be exceptions,⁵² Trial Chambers are in principle limited to the factual basis of the guilty plea, set forth in such documents as the indictment, the plea agreement and a written statement of facts. The Trial Chamber was cognisant of this general rule, as evidenced by the fact that, when handing down the Sentencing Judgement, the Trial Chamber noted that the Appellant’s sentence was based upon the facts of the Indictment and the Statement of Facts.⁵³
    B. The facts that allegedly are outside the guilty plea

13. The Appeals Chamber will address the alleged errors concerning (1) the operation in Zvornik, (2) the meetings at the Hotel Fontana, and (3) the alleged overstatement of the Appellant’s military rank.
    1. The operation in Zvornik

14. The Appellant submits that the Trial Chamber’s references to the operation in Zvornik are “[o]f particular concern”⁵⁴ and specifically refers to paragraphs 31, 32, and 36 of the Sentencing Judgement,⁵⁵ in which the Trial Chamber mentions the area of the Zvornik municipality. The Appellant also argues that, in the paragraphs of the Sentencing Judgement laying out facts on which the sentencing determination would be based, the Trial Chamber erroneously stated that he was “at the centre” of the crimes committed in Zvornik.⁵⁶

15. The Appeals Chamber will consider (a) whether the references in paragraphs 31, 32, and 36 of the Sentencing Judgement were outside the facts acknowledged by the Appellant, and (b) whether the Trial Chamber erroneously stated the facts in its sentencing considerations, i.e. in paragraphs 176 and 177 of the Sentencing Judgement, and was thereby influenced to the detriment of the Appellant.

    (a) Whether the references to the events in the municipality in Zvornik were outside of the acknowledged facts

16. The Appellant argues that paragraph 31 of the Sentencing Judgement “strongly suggests” that the Trial Chamber understood the Appellant’s plea to Count 5 of the Indictment to include “persecutions carried out, inter alia, in Zvornik”.⁵⁷

17. In paragraph 31 of the Sentencing Judgement the Trial Chamber noted that the crime of persecutions was carried out, inter alia, by the following means : “(b) the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings at Potocari and in detention facilities in Bratunac and Zvornik”.⁵⁸ Similarly, paragraph 36 of the Sentencing Judgement states that “Bosnian Muslim men who were detained in Bratunac and Zvornik were subjected to cruel and inhumane treatment.”⁵⁹

18. The Appeals Chamber observes that the Trial Chamber in paragraphs 31 and 36 of the Sentencing Judgement merely recited paragraph 59 of the Indictment, which states, in relevant part, that the crime of persecutions was carried out by the means of “the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings at Potocari and in detention facilities in Bratunac and Zvornik”.⁶⁰ Paragraph 59 of the Indictment is inserted among those paragraphs which set out the acknowledged and admitted conduct by the Appellant,⁶¹ and which include the facts that the Appellant agreed to be “true and correct and not disputed by [him]”.⁶² Although the Appellant explicitly made some corrections to the Indictment, he did not seek to correct paragraph 59 of the Indictment.⁶³ Thus, the Trial Chamber, in paragraphs 31 and 36 of the Sentencing Judgement, stated the facts as acknowledged by the Appellant.

19. In paragraph 32 of the Sentencing Judgement, the Trial Chamber stated that “[w]ithin a five-day period, approximately 6,000 Bosnian Muslim men who were escaping in 'the column' from Srebrenica were captured, detained and executed in various locations in the Bratunac and Zvornik municipalities.”⁶⁴ Although the Appellant did not plead guilty to the opportunistic killings in the Zvornik Brigade Zone,⁶⁵ he acknowledged as true the organised mass executions in Orahovac (near Lazete), at the Petkovci school, in Petkovci, at Pilica school, at the Branjevo Military Farm, at the Pilica Cultural Centre and in Kozluk,⁶⁶ places that are all within the Zvornik municipality. Therefore, the Trial Chamber’s reference in paragraph 32 of the Sentencing Judgement to executions “in various locations in the Bratunac and Zvornik municipalities” is in accordance with the facts acknowledged by the Appellant.

20. The Appeals Chamber concludes that the Trial Chamber’s references to the events in the municipality in Zvornik were not outside the scope of the acknowledged facts.

    (b) Whether the Trial Chamber wrongly stated the facts in its sentencing considerations and took them into account

21. The Appellant argues that paragraphs 176 and 177 of the Sentencing Judgement “suggest that [he] was involved in the crimes actually committed in Zvornik and was 'at the centre' of the same.”⁶⁷ He further contends that the only reference to the crimes in Zvornik contained in the Statement of Facts relates to his role in passing a message from Colonel Beara to Drago Nikolic, the Zvornik Brigade Security Officer, which stated that thousands of Muslim prisoners would be sent from Bratunac to Zvornik.⁶⁸

22. Paragraphs 176 and 177 of the Sentencing Judgement, which are found in the Trial Chamber’s conclusion on the determination of the Appellant’s sentence, read in part:

    176. Momir Nikolic was an active participant in the crimes committed in Potocari, Bratunac and Zvornik. He did not try to avoid his official duties during those fateful days or remain on the sidelines; by his own account, he appears to have taken a very active – even pro-active – role in ensuring that the operation went forward and was “successful”.

    177. Momir Nikolic was not unaware of the crimes unfolding following the fall of Srebrenica. Rather, Mr. Nikolic appears to be right at the centre of criminal activity as the operation spread from Potocari, to Bratunac and on to Zvornik. […]

23. At the outset, the Appeals Chamber recalls that the Appellant acknowledged the Indictment’s allegations concerning the mass executions in the Zvornik municipality as true and correct,⁶⁹ although the Indictment does not allege that he was personally involved in those mass executions.⁷⁰ The Appeals Chamber therefore acknowledges that the Appellant did not plead guilty to having directly participated in the crimes committed in Zvornik.⁷¹ Rather, the Appellant acknowledged and admitted his role as a participant in a joint criminal enterprise,⁷² the common purpose of which was, inter alia, the following:

    […] to capture, detain, summarily execute by firing squad, bury and rebury thousands of Bosnian Muslim men and boys aged 16 to 60 from the Srebrenica enclave from 12 July 1995 until and about 19 July 1995. […] The initial plan was to summarily execute more than 1000 Bosnian Muslim men and boys, aged 16 to 60, who were separated from the group of Bosnian Muslims in Potocari on 12 and 13 July. On 12 July, this plan was broadened to include the summary execution of over 6000 men and boys, aged 16 to 60, who were captured from the column of Bosnia Muslim men escaping the Srebrenica enclave on 12 July through about 19 July 1995. […] While the Joint Criminal Enterprise contemplated organised and systematic executions, it was foreseeable to (inter alia the Appellant( that opportunistic criminal acts, such as those described in this Amended Joinder Indictment, would be carried out by VRS and MUP forces during and after the Joint Criminal Enterprise. […] The implementation of this Joint Criminal Enterprise resulted in the summary execution of approximately 7000 Bosnian Muslim men and boys from the Srebrenica enclave.⁷³

    The common purpose of the joint criminal enterprise included the organised and systematic execution of the Muslim men and boys trying to escape from the Srebrenica enclave and was not limited to mass executions in certain municipalities.

24. It cannot be inferred from the Trial Chamber’s statement in paragraph 176 of the Sentencing Judgement that the Appellant was directly involved in the crimes committed in Zvornik. In paragraph 176 of the Sentencing Judgement, the Trial Chamber did not purport to determine in which municipality the Appellant actually participated in the crimes. Rather, the Trial Chamber emphasised the fact that through his participation in the furtherance of the common purpose of the joint criminal enterprise the Appellant actively ensured the success of the operation that followed the fall of Srebrenica: the Trial Chamber characterised his participation not only as active but as “very active – even pro-active”.⁷⁴

25. Furthermore, the Trial Chamber did not make a finding in paragraph 177 of the Sentencing Judgement to the effect that the Appellant was at the centre of the crimes in Zvornik. Rather, the Trial Chamber found that the Appellant appeared to have been at the centre of criminal activity as the operation spread from Potocari, to Bratunac and on to Zvornik. It cannot be inferred from this that the Appellant was in any way, other than his participation in the joint criminal enterprise, involved in the crimes actually committed in Zvornik. Moreover, the Appeals Chamber considers that the facts contained in paragraph 177 of the Sentencing Judgement support the Trial Chamber’s finding. These facts include his presence at the Hotel Fontana, his knowledge of the plan to deport Muslim women and children to Muslim held territory and to separate, detain, and ultimately kill the Muslim men, his lack of objection to this plan, his recommendation of possible detention and execution sites, and his presence in Potocari where the separation of men from their families took place.

26. The Trial Chamber therefore did not erroneously state the facts concerning the Appellant’s involvement in the events in Zvornik. This part of the ground of appeal is accordingly dismissed.
    2. The meetings at the Hotel Fontana

27. The Appellant argues that the Trial Chamber erred in holding that “[he] was present at the Hotel Fontana during the three meetings in which the fate of the Muslim population was discussed and decided.”⁷⁵ He argues that this statement is contrary to the Statement of Facts since it implies that he was present at the three meetings in question.⁷⁶ In his view, the Trial Chamber failed to differentiate between the three meetings.⁷⁷ In particular he argues that (1) he only attended two meetings and not three,⁷⁸ (2) “it is plain” that the fate of the Muslim population was not decided and discussed at these meetings since the Dutch Battalion representatives were present, and (3) it was only after the third meeting that he was told to coordinate the transportation of the Muslim inhabitants and the separation of the able-bodied Muslim men.⁷⁹ The Prosecution acknowledges that the Appellant was not present at the third meeting, but argues that the Trial Chamber’s findings are consistent with this fact.⁸⁰

28. The Appeals Chamber recalls paragraph 177 of the Sentencing Judgement, which reads:

    Momir Nikolic was not unaware of the crimes unfolding following the fall of Srebrenica. Rather, Mr. Nikolic appears to be right at the centre of criminal activity as the operation spread from Potocari, to Bratunac and on to Zvornik. 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. On 12 July 1995, Momir Nikolic was in Potocari – he saw with his own eyes the separation of men from their families; he heard the cries of children as they saw their fathers taken away; he saw the fear in the eyes of the women pushed on to buses as they knew that the fate of their fathers, husbands and sons was beyond their control. He has described himself as the co-ordinator of various units operating in Potocari, but he did nothing to stop the beatings, the humiliation, the separations or the killings.⁸¹

29. In contrast to the Appellant’s assertion,⁸² the Trial Chamber did not state that the Appellant attended all three meetings at the Hotel Fontana. Rather, it found that he was present at the Hotel Fontana at the time the meetings were held.⁸³ This finding was correct. According to the Statement of Facts, the Appellant attended two of the three meetings at the Hotel Fontana on 11 July 1995.⁸⁴ Prior to the third meeting, he met with two persons outside the Hotel Fontana.⁸⁵ He waited nearby the Hotel until the conclusion of the third meeting and then met with a person outside the Hotel.⁸⁶

30. With respect to the Appellant’s argument that the fate of the Muslim population was not discussed and decided at these meetings, the Appeals Chamber does not find the Trial Chamber’s approach erroneous. The Appellant acknowledged that “[d]uring the meetings at the Hotel Fontana from the evening of 11 July to the early morning of 12 July 1995, the plan to transport the civilian refugee population from Poto cari was developed”⁸⁷ and that Ratko Mladic warned the Bosnian Muslim representatives in the second meeting that their people could either “survive or disappear”.⁸⁸ Furthermore, during the third meeting at the Hotel Fontana, Ratko Mladic explained that he would supervise the “evacuation” of refugees from Potocari and that he wanted to see all military-aged Bosnian Muslim men so that “they could be screened as possible war criminals”.⁸⁹ Moreover, the Appellant acknowledged that it was also at the Hotel Fontana that he learned of the decision that “thousands of Muslim women and children would be transported out of Potocari toward Muslim-held territory near Kladanj and that the able-bodied Muslim men within the crowd of Muslim civilians would be separated from the crowd, detained temporarily in Bratunac, and killed shortly thereafter.”⁹⁰ It was again at the Hotel Fontana that he was told “to coordinate the transportation of all the women and children and the separation of the able-bodied Muslim men.”⁹¹ In stating that “Momir Nikolic was present at the Hotel Fontana during the three meetings in which the fate of the Muslim population was discussed and decided”,⁹² the Trial Chamber highlighted the fact that the Appellant was present at the very place where the Bosnian Serb leadership convened and where the decision regarding the fate of the Muslim population was conveyed to the Appellant. The Appellant has failed to demonstrate that the Trial Chamber committed an error in this respect.

31. Furthermore, the Appeals Chamber sees no contradiction between the Appellant’s claim that it was only after the third meeting that he received his orders⁹³ and the Trial Chamber’s statement that “[he] was present at the Hotel Fontana during the three meetings in which the fate of the Muslim population was discussed and decided.”⁹⁴ The Appellant in general argues that at the time of the third meeting “[he] was outside the Hotel Fontana and was not privy to whatever was discussed inside.”⁹⁵ However, the Trial Chamber did not make a statement to the contrary. As noted above, it did correctly state that he was present at the Hotel during the three meetings,⁹⁶ and it did not state that he attended the third meeting, nor that he knew what was discussed during that meeting. In fact, it is clear from the very next sentence in paragraph 177 of the Sentencing Judgement that he did not participate in deciding on the plan since the Trial Chamber expressly stated that he was told of the plan.⁹⁷

32. For the foregoing reasons, this part of the present ground of appeal is dismissed.
    3. Overstatement of Appellant’s rank

33. The Appellant contends that the Trial Chamber overstated his rank as Captain First Class when he was simply a Captain.⁹⁸ He argues that the Trial Chamber specifically took into account the Appellant’s position of authority as a significant factor in determining the gravity of the offence and that it is “in fact, impossible to say without speculation, what effect giving the Appellant an elevated rank may have had on its assessment of the gravity of the offence.”⁹⁹

34. The Appeals Chamber notes that the Appellant made a correction to paragraphs 9 and 10 of the Indictment in his Statement of Facts to the effect that “Captain First Class” should be replaced by “Captain”.¹⁰⁰ The Trial Chamber nevertheless introduced the Appellant in the second paragraph of its Sentencing Judgement as Captain First Class in the VRS.¹⁰¹

35. It is clear that the Trial Chamber’s misstatement of the Appellant’s rank affected neither its consideration of the gravity of the crime nor its consideration of the aggravating circumstances; rather, the Trial Chamber’s statement occurred in its introductory remarks on the Appellant. This is an indication that the Trial Chamber did not consider the rank of “Captain First Class”, in comparison to the Appellant’s rank of “Captain”, as a factor aggravating the sentence. The Appeals Chamber finds that, even though the Trial Chamber erroneously stated his rank in the introductory part of the Sentencing Judgement, the Appellant has failed to demonstrate how this influenced the Trial Chamber in its sentencing considerations.

36. For the foregoing reasons, grounds of appeal 1, 1A and 1B are dismissed.
    IV. SECOND AND TWELFTH GROUND OF APPEAL: CONSISTENCY OF SENTENCING PRACTICE

37. In his second and twelfth ground of appeal, the Appellant asserts that the Trial Chamber erred when it imposed a sentence of 27 years’ imprisonment on him since this sentence is inconsistent with the sentences imposed in other cases with “not dissimilar backgrounds”.¹⁰² The Appellant draws the Appeals Chamber’s attention to the cases of Radislav Krstic, Dragan Obrenovic, Vidoje Blagojevic, and Dario Kordic.¹⁰³ In the view of the Appellant his sentence is “manifestly excessive”¹⁰⁴ and he submits that if his sentence is not reduced he will be “left with a grave sense of injustice” when comparing his sentence to defendants similarly situated.¹⁰⁵ The Prosecution generally acknowledges that the Krstic, Obrenovic, and Blagojevic cases are related to the crimes committed in the aftermath of the fall of the Srebrenica enclave and that the disparity in the range of sentences may warrant review by the Appeals Chamber.¹⁰⁶ A comparison with the sentence in the Kordic case, however, is, in the view of the Prosecution, of limited assistance as the facts of that case are not related to the events at Srebrenica and therefore the case is not comparable to the case at hand.¹⁰⁷
    A. The law on the comparability of sentences and the consistency of sentencing practice

38. The Appeals Chamber recalls that “[a] previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances”.¹⁰⁸ However, the Appeals Chamber also reiterates that “while [it] does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.”¹⁰⁹ The reason for this limitation is that, when comparing a case to the same offence committed in substantially similar circumstances, the Trial Chamber still has an overriding obligation to tailor a penalty to fit the gravity of the crime and the individual circumstances of the accused, which include the consideration of both aggravating and mitigating circumstances.¹¹⁰

39. With respect to the issue of the excessiveness of a sentence, the Appeals Chamber, as noted by the Trial Chamber in the present case,¹¹¹ held in the Jelisic case that

    a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences. Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.¹¹²

    B. The cases related to the crimes committed after the fall of Srebrenica
    1. The case of Dragan Obrenovic

40. The Appellant submits that Dragan Obrenovic pleaded guilty to the same count of persecutions in the Indictment as did the Appellant, but was only sentenced to 17 years’ imprisonment.¹¹³ He asserts that Dragan Obrenovic was of a higher rank and a career officer, and was the acting commander of the Zvornik Brigade during the two days when many of the executions took place in the Zvornik municipality.¹¹⁴ The Appellant submits that he, in contrast, was only a reserve officer and not a commanding officer, ¹¹⁵ and had no subordinates.¹¹⁶ The Appellant argues that their cases are in many respects comparable as Dragan Obrenovic had also co -operated substantially with the Prosecution and had mitigating circumstances “not dissimilar” to those of the Appellant.¹¹⁷

41. At the outset, the Appeals Chamber notes that the Appellant and Dragan Obrenovic were jointly indicted, and convicted and sentenced by the same Trial Chamber in judgements rendered on 2 and 10 December 2003 respectively. Therefore, the Trial Chamber was in the best position to assess the similarities and differences between the cases and to individualise the penalties of each accused.

42. The guilty pleas of the Appellant and Dragan Obrenovic only partially encompassed the same crimes. The Appellant, when pleading guilty to Count 5 of the Indictment, specifically acknowledged and admitted his conduct related to the opportunistic killings in Potocari and Bratunac mentioned in paragraphs 43-45 of the Indictment, all the organised mass executions listed in paragraphs 46.1-46.12 of the Indictment, and the opportunistic killings that occurred in the Bratunac Brigade Zone listed in paragraphs 47, 47.2-47.5 of the Indictment.¹¹⁸ Dragan Obrenovic, on the other hand, when pleading guilty to Count 5 of the Indictment, acknowledged and admitted his conduct related to the opportunistic killings in Bratunac listed in paragraph 45 of the Indictment, the organised mass executions that occurred in the Zvornik municipality listed in paragraphs 46.6-46.12 of the Indictment and the opportunistic killings in the Zvornik Brigade Zone listed in paragraphs 47.6-47.8 of the Indictment.¹¹⁹ However, the Appeals Chamber acknowledges that both sentencing judgements concerned crimes occurring after the fall of Srebrenica, both accused pleaded guilty to being members of, and knowingly participating in, the same joint criminal enterprise,¹²⁰ and both accused agreed to plead guilty to Count 5 of the Indictment, that is, to the crime of persecutions on political, racial and religious grounds, a crime against humanity under Article 5(h) of the Statute.¹²¹ The Appeals Chamber therefore concludes that the cases of the Appellant and Dragan Obrenovic are in general comparable.

43. In both cases, the Trial Chamber decided that the starting point of the sentencing range was 20 years’ imprisonment. However, in the Appellant’s case, it decided that the maximum sentence would be life imprisonment, whereas in the Obrenovic case, it set the maximum at 40 years’ imprisonment. This may be explained, as pointed out by the Appellant,¹²² by the fact that the Trial Chamber in the Obrenovic case had characterised Dragan Obrenovi c’s participation in the commission of the crimes as being foremost one of inaction and a failure to prevent his subordinates from participating in the crimes or the failure to punish them.¹²³ In contrast thereto, the Trial Chamber in the present case held that the Appellant had an active role in furthering the commission of the crimes and was a “pro-active” participant in them.¹²⁴ In any case, it is clear that the Trial Chamber considered the participation of the Appellant and Dragan Obrenovic in the crimes to be dissimilar.

44. With respect to the aggravating circumstances, the Trial Chamber in both cases accepted the vulnerability of the victims as an aggravating circumstance.¹²⁵ Regarding the position of authority of the accused, the Appeals Chamber notes that Dragan Obrenovic, in contrast to the Appellant, additionally pleaded guilty to being responsible under Article 7(3) of the Statute.¹²⁶ In Obrenovic, the Trial Chamber found that abuse of authority was part of the crime, and thus should be considered as an aspect of the gravity of the offence ; it therefore did not consider it again as an aggravating circumstance.¹²⁷ In the Appellant’s case, by contrast, it accepted the abuse of his position of authority as an aggravating circumstance.¹²⁸

45. With respect to mitigating circumstances, the Trial Chamber accorded more weight to remorse and co-operation with the Prosecution in Dragan Obrenovic’s case than in the Appellant’s.¹²⁹ According to the Trial Chamber, Dragan Obrenovic’s co-operation with the Prosecution was a significant mitigating circumstance,¹³⁰ whereas in the Appellant’s case the Trial Chamber had some reservations about the Appellant’s credibility which, in its view, undermined the value of such co-operation.¹³¹ Regarding the mitigating circumstance of sincere remorse, the Trial Chamber considered Dragan Obrenovic’s remorse to be a substantial mitigating factor,¹³² whereas the Trial Chamber in the Appellant’s case decided not to give substantial weight to this factor.¹³³

46. The Appeals Chamber also notes that the Trial Chamber in the Obrenovic case found the character of the accused to be an “important mitigating factor”,¹³⁴ whereas in the Appellant’s case, the Trial Chamber found it only to be “a factor in mitigation of sentence.”¹³⁵ In both cases the Trial Chamber took into account the fact that the accused did not discriminate against anybody prior to the war and that they were respected members of the community.¹³⁶ However, in the case of Dragan Obrenovic, the Trial Chamber additionally found that “even during the war Dragan Obrenovic provided help on [an] ongoing basis to several Muslims whom he previously had not known.”¹³⁷ Moreover, the Trial Chamber in the Obrenovic case found the accused’s affirmative steps toward rehabilitation to be a factor in mitigation of his sentence,¹³⁸ but no such finding was made in the Appellant’s case.

47. In conclusion, the Appeals Chamber considers that these cases are comparable with respect to the number and type of crimes, both accused being responsible for persecutions as a crime against humanity in the context of the fall of Srebrenica. As shown above, however, the Trial Chamber established several differences between the two cases, namely, in relation both to the respective level of participation in the commission of the crime and to the factors it took into account in mitigation. When the Trial Chamber finds that the level of participation in the commission of a crime and mitigating factors differ, different penalties are justified. Thus, the Appellant has failed to show that the relationship between his sentence and that of Dragan Obrenovic reveals error in the Trial Chamber’s Sentencing Judgement in this case.
    2. The case of Radislav Krstic

48. The Appellant argues that a reduction of his sentence is warranted when comparing his case to that of Radislav Krstic, who received a sentence of 35 years, 8 years more than the Appellant. He points to the fact that Radislav Krstic was General- Major in the VRS and Commander of the Drina Corps at the time the crimes were committed after the fall of the Srebrenica and that Radislav Krstic was convicted for aiding and abetting genocide and his responsibility for the crimes of murder, persecutions, and extermination. The Appellant submits that he had a considerably lower position of authority than Radislav Krstic and that Radislav Krstic neither pleaded guilty nor substantially co-operated with the Prosecution.¹³⁹

49. The Appeals Chamber considers that the crimes that were committed in the cases of the Appellant and Radislav Krstic may, in general, be comparable since both were found guilty for crimes that occurred in relation to the fall of Srebrenica. However, it is necessary to compare the number and type of crimes and also how the individual participated in the crimes as well as their individual circumstances.

50. Radislav Krstic was originally sentenced to 46 years’ imprisonment; the sentence was subsequently reduced to 35 years on appeal. The Sentencing Judgement in the Appellant’s case was rendered in between the Trial Judgement and the Appeal Judgement in the Krstic case, and the Trial Chamber took the initial sentence of Radislav Krstic into account when considering the sentencing practices of the International Tribunal.¹⁴⁰ In contrast to Radislav Krstic, the Appellant pleaded guilty to committing the crimes through his participation in a joint criminal enterprise,¹⁴¹ underlined by the Trial Chamber’s finding that the Appellant’s role was active and that he was not merely following orders.¹⁴² The Trial Chamber moreover found that “by his own account, [Momir Nikolic] appears to have taken a very active – even pro-active – role in ensuring that the operation went forward and was 'successful'”¹⁴³ and concluded that “[he] was an integral part of the implementation of the plan, in order that the aims of the operation were achieved.”¹⁴⁴ Mitigating circumstances were found in both cases, specific to each accused. Whereas Radislav Krstic was given credit for various facts, including a written order to treat Muslims humanely,¹⁴⁵ the Appellant was given credit for accepting his responsibility and pleading guilty, co-operating with the Prosecution, and expressing remorse. The Appeals Chamber finds that the participation of the Appellant compared to that of Radislav Krstic and the relevant mitigating circumstances are not similar. In sum, the Appellant has failed to show that the relationship between his sentence and that of Radislav Krstic reveals error in the Trial Chamber’s Sentencing Judgement in his case.
    3. The case of Vidoje Blagojevic

51. The Appeals Chamber notes the Prosecution’s argument that Vidoje Blagojevic received, from the same Trial Chamber, a sentence of 18 years’ imprisonment after a lengthy trial without guilty plea or co-operation with the Prosecution.¹⁴⁶ As the sentence in the case of Blagojevic is pending appeal and thus has not yet been the object of final consideration,¹⁴⁷ the Appeals Chamber cannot engage in a comparison between the sentence of Vidoje Blagojevic and that of the Appellant.¹⁴⁸
    C. The case of Dario Kordic

52. The Appellant submits that the sentence imposed on Dario Kordic is also instructive since the case involved unlawful killings, murders and inhumane acts as a crime against humanity and “persecution” of the Muslim community in Central Bosnia.¹⁴⁹ He acknowledges that “the killings were not perhaps on the same sheer scale as those in Srebrenica”, but notes that Dario Kordic was convicted as a responsible regional politician who planned and instigated these crimes and that the sentence was passed after “a very lengthy trial”.¹⁵⁰ He argues further that there was no guilty plea and no co-operation with the Prosecution and that Dario Kordic received a sentence of 25 years’ imprisonment, and therefore the 27 year sentence of the Appellant “is manifestly excessive and out of keeping with Tribunal sentencing”.¹⁵¹

53. As conceded by the Appellant himself, “the killings were not perhaps on the same sheer scale as those in Srebrenica”. As Dario Kordic was not convicted for the same offences as those of the Appellant, the Appeals Chamber concludes that the two cases are not comparable.

54. In conclusion, for the foregoing reasons, the Appeals Chamber dismisses grounds of appeal 2 and 12.
    V. THIRD AND FOURTH GROUND OF APPEAL: GRAVITY OF THE OFFENCE AND AGGRAVATING CIRCUMSTANCES
    A. Alleged insufficient credit for the fact that the Appellant did not order, plan, or instigate the crimes

55. The Appellant submits that, when considering the gravity of the offence, “the Trial Chamber gave him insufficient credit for the fact that [he] did not order, plan or in any way instigate the killings at Srebrenica nor actually kill anyone himself.”¹⁵² He acknowledges that he was convicted for his involvement in a joint criminal enterprise but argues that the Trial Chamber “wrongly exercised its discretion in relation to the weight to be given to his specific role in the 'joint enterprise'.”¹⁵³ He argues that this “may have been part of the reason why the Trial Chamber imposed a sentence of 27 years”.¹⁵⁴

56. Contrary to the Appellant’s assertion that the Trial Chamber should have given him credit for the fact that he did not order, plan or instigate the crimes, the Appeals Chamber finds that Trial Chambers, when assessing the gravity of the offence, have no obligation to take into account what the accused did not do. Here, the Trial Chamber accurately stated what the Appellant did do – that is, his mode of liability for the crimes – in determining the gravity of the offence. Moreover, although the Appellant did not order, plan or instigate the crimes, it is noted that, by his own admission, he did have a very significant involvement in the commission of serious crimes. Because of the form and level of his involvement, the fact that the Appellant did not order, plan or instigate these crimes does not in any way diminish the gravity of the crimes for which he admitted guilt and that, therefore, the Appellant failed to show a discernible error on the part of the Trial Chamber. For these reasons, the Appellant’s argument is dismissed.
    B. Whether the Trial Chamber considered some factors twice to aggravate the Appellant’s sentence

57. The Appellant argues that the Trial Chamber considered both his role and the vulnerability of the victims in the gravity of the offence and again as a separate aggravating circumstance.¹⁵⁵ In the Appellant’s view, the Trial Chamber therefore double-counted each of these factors.¹⁵⁶ The Prosecution responds that the Trial Chamber’s analysis was consistent with the jurisprudence of the International Tribunal and was not in error.¹⁵⁷

58. The Appeals Chamber recalls that factors taken into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.¹⁵⁸ In turn, the Appeals Chamber considers whether the Trial Chamber double-counted (1) the Appellant’s role in the crime and (2) the vulnerability of the victims.
    1. Third Ground of Appeal: The Appellant’s position of authority and his role in the commission of the crime of persecutions

59. The Appellant argues that the Trial Chamber took his role in the commission of the crime into account as an element of the gravity of the crime as well as when making a finding on the aggravating circumstance of his position of authority and role.¹⁵⁹ He further asserts that, in relation to the gravity of the offence, the Trial Chamber specifically took note of the Prosecution’s submission that he committed the crime of persecutions in the position of a brigade level Security and Intelligence officer.¹⁶⁰ The Prosecution responds that the Trial Chamber distinguished between “two very separate issues”, namely, the Trial Chamber considered within the gravity of the crime the conduct of the accused in the crimes and the role he played in relation to the other participants, and as an aggravating circumstance the Appellant’s abuse of power.¹⁶¹

60. With regard to the findings on the gravity of the offence, the Sentencing Judgement reads:

    The Trial Chamber recalls the Statement of Facts, which forms the basis of Momir Nikolic’s conviction, as outlined above in Section II. The Trial Chamber finds that Momir Nikolic was not simply “following orders” as the Defence submits. Rather, Momir Nikolic took an active role in furthering the commission of the crime. Specifically, the Trial Chamber finds that Momir Nikolic: was in Potocari on 12 July “co-ordinating” activities including the transportation of women and children to Kladanj and the separation and detention of able-bodied Muslim men; “directed ” the work of the forces present in Potocari on 13 July; identified specific locations in and around Bratunac both for the detention and execution of Muslim men; and, in the fall of 1995, co-ordinated the exhumation and re-burial of Muslim bodies. Thus, the Trial Chamber must conclude that Momir Nikolic was an active and willing participant in the massive criminal operation carried out in the days and months following the fall of Srebrenica.¹⁶²

    The Trial Chamber additionally found the following to be elements of a separate aggravating circumstance:

    The Trial Chamber finds that Momir Nikolic was in a position of authority as Assistant Commander and Chief of Security and Intelligence. While his tasks largely consisted of implementing rather than giving orders, Momir Nikolic directed the military police of the Bratunac Brigade, as well as co-ordinated other units; this was of significance to the implementation and completion of the underlying criminal acts committed following the attack on Srebrenica. The role that Nikolic played and the functions that he performed, while not in the capacity of a commander, were of significant importance to the overall “murder operation” that was ongoing. Therefore, the Trial Chamber finds his position and role to be aggravating factors.¹⁶³

61. The Appeals Chamber agrees with the Appellant that the Trial Chamber used the word “role” when considering both the gravity of the offence and the aggravating circumstance. Upon a review of the above cited paragraphs of the Sentencing Judgement,¹⁶⁴ the Appeals Chamber considers that the Trial Chamber took into account the Appellant’s active role in the crime in its assessment of the gravity of the offence, and his position of authority and the role he played in the crime as a separate aggravating circumstance. The Appeals Chamber is not satisfied that the Appellant’s role taken into account by the Trial Chamber when considering the gravity of the offence and his “role” taken into account in addition to his position of authority as an aggravating factor correspond to different aspects of the role in question. There is no identifiable difference in the facts cited that would lead to such a conclusion; both paragraphs address as a general matter the Appellant’s role in the murder operation. Double-counting the Appellant’s role in the crimes is impermissible as doing so allows the same factor to detrimentally influence the Appellant’s sentence twice. However, although the Trial Chamber therefore erred in its double-counting of the Appellant’s “role” in the offence, the Appeals Chamber notes that the Trial Chamber’s reference to the Appellant’s “position of authority” in paragraph 135 of the Sentencing Judgement did not amount to double counting. The Appellant’s abuse of his position of authority is distinct from his role in the crimes, and the Trial Chamber referred to the former only as an aggravating factor.

62. The Appeals Chamber concludes that the Trial Chamber committed a discernible error in taking into account twice in sentencing the role the Appellant played in the commission of the crimes. As it impacted on the Trial Chamber’s determination of the sentence, the Appeals Chamber will take this error into account when revising the Appellant’s sentence.

63. The Appellant’s third ground of appeal is accordingly upheld.
    2. Fourth Ground of Appeal: The vulnerability of the victims

64. The Appellant submits that the Trial Chamber considered the vulnerability of the victims as a factor contributing to the gravity of the offence as well as an aggravating circumstance.¹⁶⁵ The Prosecution contends that the Trial Chamber, considering different factors in each case, distinguished between the impact of the crimes and the victims’ particular vulnerability,¹⁶⁶ and thus did not engage in double-counting.¹⁶⁷

65. The Appeals Chamber recalls the passages of the Sentencing Judgement, which, in the view of the Appellant, demonstrate that the Trial Chamber double-counted the vulnerability of the victims. In its findings on the gravity of the offence, the Trial Chamber, inter alia, stated that:

    Furthermore, the majority of the population of the municipality of Srebrenica was deported and made refugees. Over eight years later, the impact of the crimes committed after the fall of Srebrenica continue to be felt upon the women, children and men who survived the horrific events – many of whom continue to live as refugees due to their forcible displacement from their homes.¹⁶⁸

    Additionally, in the context of the aggravating circumstances, the Trial Chamber held:

    The Trial Chamber takes particular note of the vulnerability of the victims, who included women, children and the elderly, as well as captured men. They were all in a position of helplessness and were subject to cruel treatment at the hands of their captors. In this situation, the Trial Chamber finds this to be an aggravating factor in the commission of the crimes.¹⁶⁹

66. A thorough reading of these paragraphs of the Sentencing Judgement shows that the Trial Chamber did not take the same factors into account when assessing the gravity of the crime and the aggravating circumstances. In its finding on the gravity of the offence, the Trial Chamber considered the impact of the crimes on the people who survived the horrific events at Srebrenica. In contrast, it considered the position of vulnerability and the helplessness of the victims as an aggravating circumstance. The Appeals Chamber therefore finds that the Trial Chamber did not take into account the same consideration twice.

67. The Appellant’s fourth ground of appeal is accordingly dismissed.
    VI. FIFTH GROUND OF APPEAL: THE MISTRANSLATION OF THE DEFENCE COUNSEL’S CLOSING ARGUMENTS

68. As his fifth ground of appeal, the Appellant claims that “[t]he Trial Chamber erred in fact when it relied upon a mistranslation of [l]ead [d]efence [c]ounsel’s closing arguments in weighing Appellant’s sentence, resulting in a miscarriage of justice”.¹⁷⁰ The Prosecution argues in its Respondent’s Brief that this ground of appeal should be treated as waived since no arguments were put forward to support it.¹⁷¹

69. The Appeals Chamber notes that the Appellant has not pursued this ground of appeal in his Appellant’s Brief.¹⁷² Although the Appellant mentions the fifth ground of appeal in the heading “The Gravity of the Offence and Aggravating Circumstances – Grounds of Appeal 2, 3, 4, 5”, he does not substantiate it.¹⁷³ During the Appeal Hearing, however, both parties addressed the mistranslation issue on the merits, and the Prosecution did not renew its request that the fifth ground of appeal be treated as waived. ¹⁷⁴ Therefore, the Appeals Chamber will consider the mistranslation argument raised in the fifth ground of appeal.

70. The relevant statement of the Trial Chamber reads as follows:

    The Trial Chamber has examined the crime of persecutions for which Momir Nikolic has admitted responsibility. The Trial Chamber was shocked to hear the Nikolic Defence state that “only” 7,000 men – “only” Muslim men (as opposed to all non-Serbs) – from “only” one municipality were murdered. The comparison is not helpful to assess the gravity of the offence, and the use of the term “only” in relation to the number of persons murdered is shameful.¹⁷⁵

    The Appeals Chamber acknowledges that in Appendix C of the initial opening brief on appeal, the Appellant submits an internal memorandum dated 27 January 2004, in which the Interpretation Unit of the International Tribunal confirmed that the defence counsel at trial did not say “only 7,000 persons were killed in this campaign” but “around 7,000 men were killed”.¹⁷⁶ In contrast, there was no error in the translation of the defence counsel’s reference to the victims’ ethnicity and geographic provenance; the Trial Chamber was correct in stating that the defence counsel argued that “‘only’ Muslim men (as opposed to all non-Serbs) from ‘only’ one municipality were murdered”.¹⁷⁷ However, the Trial Chamber used the description “shameful” specifically in reference to the “use of the term ‘only’ in relation to the number of persons murdered”, not in reference to counsel’s other uses of the term “only”.

71. The Appeals Chamber notes the comments of the counsel for the Prosecution during the Appeal Hearing that “[the mistranslation] is worth considering, particularly since the […] Trial Chamber was specifically disturbed by the use of the phrase, and I believe all parties are of agreement that that was a translation or interpretation error that was very unfortunate and may have had an influence on the Trial Chamber’s assessment of not only the facts, the admissions, but also the sentence.”¹⁷⁸ Similarly, the Appellant argues that “it may be that this misinterpretation created a sense of hostility and anger towards the Nikolic Defense, and it may well have affected their judgement as well in determining the sentence imposed upon [the Appellant].”¹⁷⁹

72. The Appeals Chamber agrees with the parties’ submissions. The Appeals Chamber first notes that the Trial Chamber expressed its stance in very strong words (“shocked”, “shameful”). The Appeals Chamber considers that, even though the Trial Chamber directed these words against the Appellant’s counsel, the Trial Chamber must have thought that counsel’s statement was made with the assent of the Appellant as he did not oppose his counsel’s remarks.¹⁸⁰ Moreover, the above statement of the Trial Chamber was made in the chapter of the Sentencing Judgement regarding its findings on the gravity of the offence,¹⁸¹ which, the Appeals Chamber recalls, is “the most important consideration, which may be regarded as the litmus test for the appropriate sentence”.¹⁸² In light of the position of the statement in the Sentencing Judgement and the harshness of the words used by the Trial Chamber, the Appeals Chamber concludes that the Trial Chamber took this factor into account to the detriment of the Appellant when assessing his sentence. That being so, the Appeals Chamber will take this error into account in revising the Appellant’s sentence.

73. The Appellant’s fifth ground of appeal is accordingly upheld.
    VII. SIXTH GROUND OF APPEAL: WHETHER THE TRIAL CHAMBER GAVE INSUFFICIENT CREDIT FOR THE APPELLANT’S GUILTY PLEA

74. In this ground of appeal, the Appellant in general submits that the Trial Chamber failed to give sufficient credit to the guilty plea as a mitigating circumstance.¹⁸³ In particular, he argues that (1) the Trial Chamber had reservations about the value of plea agreements;¹⁸⁴ and that (2) the Trial Chamber did not give enough weight to the fact that (a) his guilty plea, before the start of the trial, saves the resources of the International Tribunal,¹⁸⁵ and that (b) he was the first Bosnian Serb to publicly admit his guilt in relation to the Srebrenica massacre.¹⁸⁶

75. The Appeals Chamber recalls that in determining a sentence, a Trial Chamber shall take into account “any mitigating circumstances”.¹⁸⁷ The admission of guilt or a guilty plea has previously been taken into account by the International Tribunal as a mitigating circumstance.¹⁸⁸
    A. The reservations of the Trial Chamber

76. The Appellant argues that although the Trial Chamber found his guilty plea to be an important mitigating circumstance, this must be assessed in light of “the clear reservations that the Trial Chamber had about the value of plea agreements in the sort of cases that came before the [International] Tribunal.”¹⁸⁹ The Appellant specifically refers to the reservations the Trial Chamber expressed in paragraph 61 of the Sentencing Judgement.¹⁹⁰

77. The Appeals Chamber notes that the Trial Chamber addressed the reservations referred to by the Appellant when considering the general question of whether plea agreements were appropriate in cases involving serious violations of international humanitarian law.¹⁹¹ The Trial Chamber gave no indication that it considered those reservations when determining the effect of the guilty plea on the Appellant’s sentence. Indeed, the Trial Chamber acknowledged without reservation that the Appellant’s guilty plea was an important factor in mitigation of the sentence.¹⁹²
    B. The contribution to saving International Tribunal resources

78. The Appellant submits that the Trial Chamber erred by giving “little weight ”¹⁹³ to the fact that a guilty plea can save the resources of the International Tribunal.¹⁹⁴ He further asserts that the Trial Chamber “in effect rejected” the submissions of both parties in this regard.¹⁹⁵ He argues that, contrary to the Trial Chamber’s view, the benefit of saving resources is not to be considered any differently at the International Tribunal than in national jurisdictions, since the cases before the International Tribunal are “in general very time-consuming [and] expensive”, and that the International Tribunal’s mandate is limited by its completion strategy.¹⁹⁶ The Prosecution responds that the Trial Chamber gave all relevant factors associated with a guilty plea, including the saving of resources, appropriate weight.¹⁹⁷

79. The Appeals Chamber considers that a guilty plea obviates a lengthy trial and therefore saves International Tribunal resources. The Appeals Chamber notes that in the Erdemovic case, the Trial Chamber held the following:

    [The] voluntary admission of guilt which has saved the International Tribunal the time and effort of a lengthy investigation and trial is to be commended.¹⁹⁸

    In the Dragan Nikolic case, the Appeals Chamber elaborated upon this issue, noting that “the avoidance of a lengthy trial, while an element to take into account in sentencing, should not be given undue weight.”¹⁹⁹ The Appeals Chamber finds that the Appellant has not shown that the Trial Chamber committed a discernible error in finding, in accordance with the jurisprudence of the Appeals Chamber, that “little weight” only could be allocated to the fact that the Appellant’s guilty plea saved International Tribunal resources.²⁰⁰

    C. The fact that the Appellant was the first Bosnian Serb to admit responsibility for his part in the events that took place at Srebrenica

80. The Appellant submits that “the Trial Chamber failed to give him sufficient credit for his guilty plea particularly bearing in mind that he was the first Bosnian Serb to stand up publicly and admit responsibility for his part in the terrible events which occurred at Srebrenica.”²⁰¹ He argues that his guilty plea required courage in light of the then prevailing and contrary views widely held in Serbia and Republika Srpska.²⁰² The Appellant acknowledges that the Trial Chamber found his guilty plea to be a factor which contributed to establishing the truth and to promoting reconciliation. Nonetheless he further submits that the Trial Chamber should have given him greater credit for his guilty plea.²⁰³

81. The Prosecution responds that the Trial Chamber noted the parties’ submissions that the Appellant was the first Serb to acknowledge criminal responsibility for the crimes committed after the fall of Srebrenica.²⁰⁴ The Prosecution argues that the Trial Chamber found the guilty plea to be a “significant ” contribution to the fulfilment of the International Tribunal’s mandate of restoring peace and reconciliation in the former Yugoslavia, ²⁰⁵ and that it found the plea to be an important factor in mitigation of the sentence.²⁰⁶ The Prosecution emphasises, however, that the fact that the Appellant was the first Serb to stand up publicly and admit that the Srebrenica massacre happened was very important for the people of Bosnia.²⁰⁷

82. At the outset, the Appeals Chamber recalls that the Statute and Rules leave it open to consider the mitigating effect of a guilty plea on the basis that the mitigating weight to be attached to the plea lies in the discretion of the Trial Chamber.²⁰⁸ For the reasons set out in the following paragraphs, the Appeals Chamber finds that the Trial Chamber did not err in exercising its discretion.

83. The Appeals Chamber notes that the Trial Chamber explicitly referred to the parties’ submissions that “[t]his is the first time that a Serb has acknowledged criminal responsibility in relation to the events at Srebrenica, the largest single murder operation in Europe since World War II.”²⁰⁹ Here, in light of the Sentencing Judgement’s consideration of certain documents submitted by the Defence, it is clear that the Trial Chamber took the parties’ submissions on this point into account. In particular, when considering the Appellant’s guilty plea, the Trial Chamber explicitly cited (1) an article tendered by the Defence in which the author stated that “until the moment Mr. Nikolic confessed, I had never heard a Bosnian Serb admit that the massacre even happened”²¹⁰ and (2) a letter from the mayor of the Srebrenica municipality, in which the mayor writes that “Momir Nikolic is the first officer of the Serbian Army who found the strength and courage to confess the crimes and his participation in them.”²¹¹ Thus, the Trial Chamber was cognisant of the fact that the Appellant was the first Serb officer to admit responsibility for these crimes.

84. Moreover, the Trial Chamber implicitly considered the fact that he was the first Serbian officer to acknowledge the VRS’s involvement in the events after the fall of Srebrenica to be significant since his guilty plea contributed to, inter alia, restoring peace, providing a basis for reconciliation, and precluding revisionism. The Appeals Chamber notes the Appellant’s submission in his Sentencing Brief in this regard:

    Mr. Nikolic’s plea demonstrates his honesty and candour and deserves special attention, since he was the first Serbian officer to come forth to acknowledge the VRS’s involvement and his personal responsibility with regard to the events after the fall of the Srebrenica enclave in July 1995. His acknowledgement of the crimes and his personal accountability will contribute to rendering justice to victims, to deterring others, to providing a basis for reconciliation and to preclude revisionism. This extends to the core mission of this Tribunal — to restore peace and security to the region through accountability and reconciliation.²¹²

    The Appeals Chamber considers that the Trial Chamber’s findings in the Sentencing Judgement mirror the Appellant’s arguments regarding the contribution he provided when acknowledging the crimes:

    The Trial Chamber finds that Momir Nikolic’s guilty plea is significant and can contribute to fulfilling the Tribunal’s mandate of restoring peace and promoting reconciliation.²¹³

    The Trial Chamber accepts the Defence submissions that a guilty plea can contribute to precluding revisionism.²¹⁴

    [T]he Trial Chamber finds that Momir Nikolic’s guilty plea is an important factor in mitigation of the sentence due to its contribution to establishing the truth, promoting reconciliation and because of Momir Nikolic’s acceptance of his individual criminal responsibility for his role in the crime of persecutions.²¹⁵

85. Thus, the Trial Chamber considered the fact that the Appellant was the first Serb officer to acknowledge his guilt in relation to the Srebrenica massacre. Moreover, the Trial Chamber qualified the Appellant’s guilty plea as “significant”²¹⁶ and as an “important factor in mitigation of the sentence”.²¹⁷ The Appellant has failed to demonstrate that the Trial Chamber committed a discernible error in the weight it attached to his guilty plea. For the foregoing reasons, the Appellant’s sixth ground of appeal is dismissed.
    VIII. SEVENTH GROUND OF APPEAL: THE APPELLANT’S SUBSTANTIAL CO-OPERATION WITH THE PROSECUTION

86. The Appellant submits that the Trial Chamber erred in failing to recognise his full co-operation with the Prosecution.²¹⁸ He submits that the Prosecution accepted that he had co-operated fully and argues that the Trial Chamber should not substitute its own evaluation for the Prosecution’s assessment.²¹⁹ Moreover, in the view of the Appellant, the Trial Chamber gave inadequate grounds for not giving him full credit for his co-operation.²²⁰

87. The Prosecution confirms that the Appellant provided substantial co-operation at trial, that he co-operated fully, and that his testimony on key issues and events is credible and reliable.²²¹

88. The Appeals Chamber identifies two issues in the Appellant’s arguments, namely, (1) whether it is for the Trial Chamber to assess the Appellant’s co-operation with the Prosecution and (2) whether the Trial Chamber’s assessment of the Appellant’s co-operation was correct.
    A. Whether it is for the Trial Chamber to assess the Appellant’s co-operation with the Prosecution

89. The Appellant submits that a Trial Chamber should accept the Prosecution’s assessment of the level and value of such co-operation and not substitute its own view.²²² He argues that despite the Prosecution’s submission to the Trial Chamber that he had co-operated fully providing valuable information regarding both the events in and about Srebrenica as well as events beyond the scope of the Plea Agreement, the Trial Chamber “seems far from convinced” as to the degree of his co-operation.²²³ He contends that, in the absence of any dispute between the parties, the Trial Chamber should not have intervened by substituting its own view but should have accepted the Prosecution’s view, since the Prosecution is in the best position to judge whether the information provided by him was credible and valuable.²²⁴

90. The Prosecution argues that, even though it may be in the best position to assess the level and value of co-operation, it is ultimately for the Trial Chamber to determine whether the mitigating factor is present for sentencing purposes.²²⁵

91. The Appeals Chamber acknowledges that the Prosecution is in a position to accurately assess the co-operation of an accused. However, the evaluation of the extent and nature of the Appellant’s co-operation, and thus the weight, if any, to be given to this mitigating circumstance, is within the discretion of the Trial Chamber.²²⁶

92. In this respect, the Appeals Chamber notes that the Appellant agreed in his Plea Agreement with the Prosecution that it is for the Trial Chamber to evaluate the nature and extent of his co-operation with the Prosecution:

    The Prosecution and Mr. Nikolic also agree that they will jointly recommend to the Trial Chamber that sentencing of Mr. Nikolic in this matter not be set until after Mr. Nikolic has testified in the upcoming trial, in order that the full nature and scope of Mr. Nikolic’s co-operation may be seen and evaluated by the Trial Chamber prior to sentencing.²²⁷

93. The Appeals Chamber finds, therefore, that the Trial Chamber had the right to conduct its own assessment of the Appellant’s co-operation with the Prosecution.
    B. Whether the Trial Chamber correctly assessed the Appellant’s co-operation with the Prosecution

94. At the outset the Appeals Chamber notes that the Trial Chamber found the Appellant’s co-operation to be a mitigating circumstance.²²⁸ The present ground of appeal is therefore limited to the weight given to this mitigating circumstance.

95. The Appeals Chamber recalls that an appellant challenging the weight given by a Trial Chamber to a particular mitigating circumstance bears “the burden of demonstrating that the Trial Chamber abused its discretion”.²²⁹ The Appeals Chamber has previously held that “[t]he Appellant has to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, [that it] made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”²³⁰

96. With respect to the mitigating circumstance of the accused’s co-operation with the Prosecution, the Appeals Chamber considers that the Trial Chamber should take into account the Prosecution’s assessment of this co-operation because, as noted above, the Prosecution is in a favourable position to make an assessment of it. Moreover, considering that the Trial Chamber has a general obligation to set out a reasoned opinion pursuant to Article 23(2) of the Statute, the Appeals Chamber finds that, if the Trial Chamber disagrees with the Prosecution’s assessment of the accused’s co-operation, it has a duty to provide sufficient reasons for not following the Prosecution’s assessment. Only a reasoned opinion, one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute, allows the Appeals Chamber to carry out its function pursuant to Article 25 of the Statute by understanding and reviewing findings of a Trial Chamber.²³¹

97. The Appeals Chamber notes that the Trial Chamber took the Prosecution’s assessment into account since it acknowledged, in its discussion on the nature and extent of the Appellant’s co-operation, that in the view of the Prosecution the Appellant had co-operated fully.²³² The Appellant nonetheless argues that the Trial Chamber gave unreasoned or inadequate grounds for not giving him full credit for his co-operation.²³³ Bearing the above requirements in mind, the Appeals Chamber will address the Trial Chamber’s four reservations, contested by the Appellant. The Appellant identified the Trial Chamber’s reservations as follows: (1) that he had been evasive on a number of occasions during his testimony in the Blagojevic trial, (2) that prior to signing the Plea Agreement, he had falsely confessed to ordering mass executions in Kravica and Sandici, (3) that his testimony was not as detailed as it could have been in certain areas,²³⁴ and (4) that, if he was sincere about co-operating, he would have been more open in all aspects of his testimony and more forthright in his responses to the Trial Chamber.²³⁵
    1. The fact that the Appellant was evasive on a number of occasions during his testimony in the Blagojevic case

98. The Appellant submits that the Trial Chamber only cited one example to corroborate his alleged evasiveness during the Blagojevic trial, which involved an allegation that he had improperly sought rent money from a Dutchbat officer.²³⁶ First, he argues that this was “very much a collateral issue which was not of central importance to any of the allegations in the [I]ndictment”.²³⁷ Second, he submits that he had no advance warning that this collateral issue might arise in cross-examination in the Blagojevic case, but during the Sentencing Hearing in his own case he had thought about it further and thus was able to provide more details on his role in the financial dealings between Dutchbat and the owner of the Hotel Fontana. The Appellant further notes that he proffered to the Trial Chamber four documents on this issue but it refused to accept them into evidence.²³⁸ Third, the Appellant argues that, notwithstanding the evidence given in the Blagojevic case, he was as forthcoming as possible in the Sentencing Hearing; thus his behaviour cannot be described as evasive.²³⁹ Last, he argues that the Trial Chamber should have indicated with sufficient clarity the grounds on which it based its decision.²⁴⁰

99. The Prosecution acknowledges that the issue of the rent money is not of central importance to the allegations in the Indictment; nor is it a “crucial aspect going to [the Appellant’s] credibility”.²⁴¹ Nevertheless, in the view of the Prosecution, it was relevant to the general issue of credibility and could thus be considered as pertinent to the value of his testimony.²⁴² The Prosecution further argues that the subsequent explanation by the Appellant at the Sentencing Hearing is simply a matter for the Trial Chamber to consider when assessing his overall credibility.²⁴³ Moreover, even after his explanation at the Sentencing Hearing, discrepancies remained between the Appellant’s testimony and that of the Dutchbat officer.²⁴⁴

100. The Trial Chamber held the following within the findings on the Appellant’s co-operation with the Prosecution:

     However, it is for the Trial Chamber to make an assessment of the credibility of Momir Nikolic, which ultimately impacts upon the value of such co-operation. Of primary importance to the Trial Chamber is the truthfulness and veracity of the testimony of Momir Nikolic in the Blagojevic Trial, as well as how forthcoming the information was. The Trial Chamber takes into consideration numerous instances where the testimony of Momir Nikolic was evasive and finds this to be an indication that his willingness to co-operate does not translate into being fully forthcoming in relation to all the events, given his position and knowledge.²⁴⁵

     In the footnote to the aforementioned paragraph the Trial Chamber stated the following :

     The Trial Chamber notes, for example, the apparent discrepancy in the testimony of Momir Nikolic and Col. Franken, in relation to the demand for payment of rent for the United Nations Military Observer’s by the Dutch Battalion. (Blagojevic Trial, Witness Robert Franken, BT. 1557-1560).²⁴⁶

101. As a preliminary issue, the Appeals Chamber finds that, with respect to the mitigating circumstance of his co-operation with the Prosecution, the Trial Chamber did not err when it took into account the truthfulness of the Appellant’s testimony in the Blagojevic trial. The Trial Chamber was in a favourable position to assess the truthfulness of the Appellant’s testimony in the Blagojevic case as it consisted of the same bench that heard this testimony. Furthermore, the Appeals Chamber notes that, in the Plea Agreement’s section regarding his co-operation with the Prosecution, the Appellant agreed “to testify truthfully in the trial of the co-Accused in this case before the [International] Tribunal and in any other trials, hearings or other proceedings before the [International] Tribunal as requested by the Prosecution.”²⁴⁷ Furthermore, the Appellant agreed with respect to his co-operation with the Prosecution “that all information and testimony provided by Mr. Nikolic must be absolutely truthful.”²⁴⁸ Moreover, as agreed by the parties, the sentencing proceedings were postponed until after he had given testimony in the upcoming trial in order for the Trial Chamber to evaluate the nature and scope of the Appellant’s co-operation.²⁴⁹ Therefore, the Trial Chamber did not err in considering in its assessment of the Appellant’s co-operation with the Prosecution whether or not he had been truthful in his testimony during the Blagojevic trial.

102. The Appeals Chamber considers that the Trial Chamber likewise did not err when it took into account the discrepancy between the Appellant’s and the Dutchbat officer’s testimony in the Blagojevic case.²⁵⁰ The Appellant’s explanation at the Sentencing Hearing does not change the fact that notable discrepancies existed.²⁵¹

103. However, while the Trial Chamber indicated that there were “numerous instances ” where the Appellant’s testimony had been evasive,²⁵² it only refers to the aforementioned example.²⁵³ In this particular case, the only argument the Appellant can put forward to discharge his burden to demonstrate an error is that the “numerous instances” do not exist. If a Trial Chamber considers a fact to lessen the weight given to a mitigating circumstance, it must be supported in a way so as to ensure that the accused has the possibility to provide arguments in case he seeks to disturb the finding on appeal. The Trial Chamber failed to support its finding of numerous instances of evasiveness and therefore failed to provide a reasoned opinion in this respect. The Appeals Chamber concludes, therefore, that the Trial Chamber committed a discernible error.
     2. The Appellant’s false confession prior to the conclusion of the Plea Agreement

104. The Appellant submits that he admitted to having lied prior to the conclusion of the Plea Agreement but that this did not prevent the Prosecution from submitting that the Appellant had fully co-operated with it.²⁵⁴ The Appellant further compares his case to that of Miroslav Deronjic, who also acknowledged that he had provided partially untrue statements in his interviews with the Prosecution ; the Trial Chamber in that case nevertheless attributed “significant weight” to Miroslav Deronjic’s co-operation with the Prosecution.²⁵⁵ Moreover, the Appellant argues that the Sentencing Judgement failed to mention that it was not the Prosecution that found out that he had lied but that he himself went back and brought this false confession to the attention of the Prosecution.²⁵⁶

105. The Prosecution agrees that the Appellant’s admission to having falsely confessed to other crimes does reduce any negative impact on the assessment of his co-operation. It further acknowledges that his subsequent co-operation was substantial.²⁵⁷

106. The Appeals Chamber is of the view that sentencing decisions are discretionary and turn on the particular circumstances of each case. Thus, the mere fact that the Deronjic Trial Chamber gave significant weight to the accused’s co-operation notwithstanding certain false statements does not illustrate that the Trial Chamber in this case abused its discretion in reaching a different result.

107. The Appeals Chamber notes that it is undisputed that the Appellant had told lies to the Prosecution when confessing to crimes he had not committed. However, the Appeals Chamber considers that, in the specific circumstances of this case, any negative impact or confusion that such false confessions may have caused on the value of his co-operation had been cured. First, it was on the Appellant’s initiative that he went back to the Prosecution, apologised, and corrected his statement.²⁵⁸ Second, as acknowledged by the Prosecution, the Appellant showed his full willingness to co-operate with the Prosecution by openly admitting to having rendered false confessions. The Trial Chamber did not take account of these actions of the Appellant in assessing the value of his co-operation. For these reasons, the Appeals Chamber finds that the Trial Chamber committed a discernible error in this regard.
     3. The lack of detail in certain areas of the Appellant’s testimony

108. In relation to the Trial Chamber’s finding regarding the lack of detail in his testimony in the Blagojevic case, the Appellant submits that “it is unclear what the Trial Chamber had in mind because it gives no examples”²⁵⁹ and claims that the reasoned opinion requirement was violated.²⁶⁰ He submits that he was “very candid” during his testimony in the Blagojevic case and that his contribution was “enormous”.²⁶¹ Additionally, the Appellant argues that the Trial Chamber called witnesses propio motu in order to assess whether he testified truthfully at the Blagojevic trial,²⁶² but the Trial Chamber did not mention these witnesses again in its Sentencing Judgement and that, in fact, the witnesses corroborated the Appellant’s testimony.²⁶³

109. The Prosecution agrees that the Trial Chamber improperly failed to provide sufficient reasoning for its holding that the Appellant’s testimony had been inadequately detailed, and that this failure may have affected its judgement.²⁶⁴ With respect to the witnesses called propio motu by the Trial Chamber, the Prosecution submits that the Appellant failed to demonstrate any prejudice.²⁶⁵

110. The Trial Chamber, when discussing the credibility of the Appellant, held the following:

     Additionally, while recognising that Mr. Nikolic was testifying about events which occurred over eight years ago, the Trial Chamber found that his testimony was not as detailed as it could have been in certain areas. This is an indicator of the character and a certain lack of candour on the part of Momir Nikolic, which the Trial Chamber has taken into consideration in its overall evaluation.²⁶⁶

     The Appeals Chamber notes that no reference was given to support the Trial Chamber’s finding.

111. The Appeals Chamber has scrutinised the Appellant’s testimony in the Blagojevi c case, but it could not find an instance in which the Trial Chamber asked for more details. It is unclear what facts the Trial Chamber relied upon when coming to the conclusion that the “[Appellant’s] testimony was not as detailed as it could have been in certain areas”. The Appeals Chamber finds that the Trial Chamber failed to support its finding and in this respect failed to provide a reasoned opinion. The Appeals Chamber concludes that the Trial Chamber committed a discernible error.
     4. The lack of openness in his testimony and lack of forthrightness in his responses

112. The Appellant challenges the Trial Chamber’s holding that, “[h]ad he been completely sincere about co-operating, Momir Nikolic would have been more open in all aspects of his testimony and been more forthright in his responses before, and to, the Trial Chamber.”²⁶⁷

113. Again, the Trial Chamber did not refer to any evidence corroborating the statement. For the same rationale considered above in relation to the numerous instances of evasiveness and the lack of detail in certain areas of the Appellant’s testimony, the Trial Chamber failed to support its finding and in this respect failed to provide a reasoned opinion. The Appeals Chamber concludes that the Trial Chamber committed a discernible error in this respect.
     5. Conclusion

114. The Appeals Chamber finds that the Trial Chamber committed several discernible errors when assessing the Appellant’s co-operation with the Prosecution. The Appeals Chamber considers that these errors led the Trial Chamber to attach insufficient weight to the mitigating circumstance of his co-operation with the Prosecution. The Appeals Chamber will take this into account in revising the Appellant’s sentence.

115. For the foregoing reasons, the Appeals Chamber allows the Appellant’s seventh ground of appeal in part.
     IX. EIGHTH GROUND OF APPEAL: THE APPELLANT’S REMORSE

116. In his eighth ground of appeal, the Appellant alleges that the Trial Chamber erred by failing to give him sufficient credit for his expression of remorse.²⁶⁸ He submits in general that his statements 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”.²⁶⁹
     A. Whether the Trial Chamber accepted the Appellant’s statement at the Sentencing Hearing as a sincere expression of remorse

117. The Appellant puts forward the argument that the Trial Chamber did not accept his statement at the Sentencing Hearing “as a sincere expression of remorse”.²⁷⁰ The Appeals Chamber notes that the expression of remorse has been recognised as a mitigating factor²⁷¹ if the remorse is real and sincere.²⁷² The Trial Chamber expressed no reservations with respect to the sincerity of the Appellant’s remorse. In fact, the Trial Chamber found the Appellant’s expression of remorse to be a mitigating factor.²⁷³ This finding is in itself a confirmation that the Trial Chamber considered the Appellant’s remorse to be sincere, as only a “real and sincere” expression of remorse constitutes a mitigating circumstance.²⁷⁴ The Appellant therefore has failed to demonstrate an error on the part of the Trial Chamber in this regard.
     B. Whether the Trial Chamber correctly found that it could not afford substantial weight to the Appellant’s remorse

118. The Trial Chamber decided that it could not “afford substantial weight” to the Appellant’s remorse.²⁷⁵ The Appellant challenges the three reasons put forward by the Trial Chamber to justify its decision.²⁷⁶ The Appeals Chamber will address the Appellant’s arguments to the effect that (1) the Trial Chamber placed improper weight on the Appellant’s reasons for entering into a Plea Agreement and for giving untruthful statements to the Prosecutor during the plea negotiations,²⁷⁷ (2) the Trial Chamber placed improper weight on the timing of the guilty plea,²⁷⁸ and (3) the mistranslation of the counsel’s statement in the closing arguments may have impacted on the decision not to give appropriate weight to his remorse.²⁷⁹
     1. The Trial Chamber’s assessment of the Appellant’s reasons for entering into a Plea Agreement and for giving untruthful statements to the Prosecutor during the plea negotiations

119. The Appellant argues that the Trial Chamber’s reasons for giving little weight to his expression of remorse are, inter alia, (1) his explanation as to why he pleaded guilty,²⁸⁰ and (2) the false information he provided to the Prosecution during the plea negotiations in order to obtain a plea agreement.²⁸¹ The Appellant acknowledges that self-interest played an important part in his decision to enter into a plea agreement with the Prosecution; however, in the view of the Appellant, “it is equally clear that the pain which memory of the events in Srebrenica brought to him, through a realisation of the horrors that occurred also played a major part in [his] thought process.”²⁸² Additionally, the Appellant submits that the Trial Chamber failed to sufficiently consider “the sheer difficulty” that he, as a Serb, encountered when talking about the events in Srebrenica and confessing his guilt, particularly in light of the fact that, at the time of his confession, denial of responsibility for these events prevailed in Serbia and Republika Srpska.²⁸³ The Appellant also acknowledges that he told lies to the Prosecution during the plea negotiations. He argues, however, that he soon afterwards admitted his lies and apologised for them and it was thus “harsh to hold these lies (which actually implicated him more rather than less) against him to as significant an extent as the Trial Chamber seems to have done.”²⁸⁴

120. The Trial Chamber, in its finding on the Appellant’s remorse, stated:

     The Trial Chamber recalls Momir Nikolic’s explanation of his reasons for pleading guilty, as well as his related reason for providing the Prosecution with false information during the plea negotiations.²⁸⁵

121. The Appellant does not argue that these considerations should not have been taken into account by the Trial Chamber. He merely argues that it was “harsh to hold these lies […] against him to as significant an extent as the Trial Chamber seems to have done”.²⁸⁶ But the Trial Chamber did not take into account within its assessment of the Appellant’s remorse evidence that he had provided the Prosecution with false information. Rather, the Trial Chamber took into account the reasons why he provided the Prosecution with false information.²⁸⁷ The Appellant has failed to put forward any argument as to why the Trial Chamber should not have taken those reasons into account. When arguing that there were also other reasons – apart from self-interested motives – that “played a major part in the Appellant’s thought process” in reaching the Plea Agreement,²⁸⁸ the Appellant fails to see that the Trial Chamber in fact took those other reasons into account as it expressly cited in the Sentencing Judgement the Appellant’s relevant statement at the Sentencing Hearing.²⁸⁹

122. With respect to the Appellant’s argument that the Trial Chamber failed to sufficiently take into account the difficulty he, as a Serb, had in talking about the events in Srebrenica and confessing his guilt, in particular regarding the fact that, at the time of his confession, denial of responsibility for these events prevailed in Serbia and Republika Srpska,²⁹⁰ the Appeals Chamber concurs with the Prosecution that this factor was taken into account by the Trial Chamber.²⁹¹ In its discussion on the mitigating circumstance of a guilty plea, the Trial Chamber considered this factor and explicitly referred to evidence supporting this factor.²⁹² The Appeals Chamber finds that it was within the Trial Chamber’s discretion to consider these factors within its assessment of the Appellant’s guilty plea; the Trial Chamber was not obliged to consider them again when assessing the Appellant’s remorse.²⁹³

123. The Appeals Chamber concludes that the Appellant has failed to demonstrate that the Trial Chamber gave improper weight to the Appellant’s reasons for entering into a Plea Agreement and for providing untruthful statements to the Prosecutor during the plea negotiations.
     2. The Trial Chamber’s assessment of the timing of the guilty plea

124. The Appellant asserts that the Trial Chamber “placed great weight” upon the fact that he pleaded guilty one year after the full disclosure of the case against him.²⁹⁴ The Appellant argues that he is under no obligation to plead guilty and “he was simply exercising a fundamental right guaranteed under the [International] Tribunal’s Statute.”²⁹⁵ He submits that the taking into account of this factor was “unfair”.²⁹⁶

125. The Appeals Chamber notes that the Trial Chamber made the following statement in a footnote:

     The Trial Chamber further recalls that while Momir Nikolic pled guilty before any evidence had been presented by the Prosecution at a public hearing, his guilty plea came after one year of full disclosure by the Prosecution of its case against him.²⁹⁷

126. The Appeals Chamber acknowledges that the timing of the Appellant’s guilty plea cannot be considered as an aggravating circumstance by the Trial Chamber to the detriment of the accused.²⁹⁸ The accused has a fundamental right to be presumed innocent until proven guilty²⁹⁹ and, therefore, is under no obligation to plead guilty.³⁰⁰ The Appeals Chamber notes that this right has been recognised by the Trial Chamber in the present case.³⁰¹ The Appeals Chamber further notes that there is an absolute prohibition against considering the silence of the accused in the determination of guilt or innocence, as well as in the determination of the sentence.³⁰²

127. With respect to the consideration of an accused’s silence, the Prosecution submits that the prohibition is certainly applicable to the assessment of whether a “late” guilty plea can be considered as an aggravating factor. However, in the opinion of the Prosecution, it is not applicable if this factor is taken into account as diminishing the weight given to a mitigating factor since, in this way, it is “not a detriment, but the reduction of a benefit.”³⁰³

128. In this case, the Appeals Chamber considers that the Trial Chamber did not err in referring to the timing of the guilty plea when assessing the weight to accord the Appellant’s remorse. Rather, the Trial Chamber considered the timing of the Appellant’s plea as evidence about the extent to which the plea was motivated by remorse, as opposed to self-interest. Where, as here, a Trial Chamber merely considers a plea’s timing as evidence about the extent to which it was motivated by remorse, the Trial Chamber does not infringe the accused’s rights. The Trial Chamber did not detract from the weight to accord this mitigating factor because the Appellant, for a time, exercised his right to plead not guilty. 
     3. The Appellant’s allegation that the mistranslation of the counsel’s statement in the closing arguments may have adversely impacted the decision not to give appropriate weight to his remorse

129. The Appellant argues that with respect to the weight given to his remorse it is not clear whether the Trial Chamber held the mistranslation of the former counsel’s closing arguments against him.³⁰⁴ He contends that there is “at least a perception that the [Trial] Chamber’s attitude to the Appellant and the extent of his real remorse and rehabilitation may have been coloured by his counsel’s language”.³⁰⁵ He concludes that if counsel’s language was an influential factor, this mistranslation would be “wholly unfair”.³⁰⁶

130. The Appeals Chamber already addressed the impact of the – mistranslated – statement on the Trial Chamber’s assessment of the gravity of the offence in relation to the Appellant’s fifth ground of appeal.³⁰⁷ The Trial Chamber did not refer to or consider the mistranslated statement when discussing the weight given to the Appellant’s remorse.³⁰⁸ The Appellant has failed to demonstrate that the Trial Chamber did take this factor into account when assessing the weight given to the Appellant’s remorse. In any case, as held in the fifth ground of appeal, the Appeals Chamber considers that the Trial Chamber took this element erroneously into account when assessing the gravity of the offence.
     4. Conclusion

131. The Appeals Chamber finds that the Trial Chamber took all the relevant elements of the Appellant’s remorse into account.³⁰⁹ The Appellant has failed to demonstrate that the Trial Chamber committed a discernible error in the weight it afforded to the mitigating circumstance of remorse.

132. For the foregoing reasons, the Appellant’s eighth ground of appeal is dismissed.
     X. NINTH, TENTH, AND ELEVENTH GROUND OF APPEAL

133. The Appellant did not put forward any arguments in his Appellant’s Brief substantiating his ninth, tenth, and eleventh grounds of appeal, and furthermore made no reference to these grounds at the Appeal Hearing. The Appeals Chamber agrees with the Prosecution ³¹⁰ that these grounds should therefore be dismissed.

134. For the foregoing reasons, the Appellant’s ninth, tenth, and eleventh ground of appeal are dismissed.
     XI. FINAL CONCLUSIONS

135. The Appeals Chamber recalls that it has upheld the Appellant’s third and fifth ground of appeal, as well as his seventh ground of appeal in part, and has dismissed all the other grounds of appeal. The Appeals Chamber stresses that under Rules 62ter(B) and 62ter(A) of the Rules, which apply to appeal proceedings by virtue of Rule 107 of the Rules, it is not bound by the sentencing range recommended by either party.³¹¹ The Appeals Chamber considers that the errors identified by the Appeals Chamber warrant a reduction of the sentence of XX imprisonment.
     XII. DISPOSITION

     For the foregoing reasons, THE APPEALS CHAMBER, unanimously

     PURSUANT to Article 25 of the Statute and Rules 117 and 118 of the Rules;

     NOTING the respective written submissions of the parties and the oral arguments they presented at the hearing of 5 December 2005;

     SITTING in open session;

     ALLOWS the Appellant’s third and fifth ground of appeal, as well as his seventh ground of appeal in part; and DISMISSES all the other grounds of appeal;

     REVISES the sentence;

     SENTENCES the Appellant to 20 years’ imprisonment to run as of this day, subject to credit being given under Rule 101(C) of the Rules for the period the Appellant has already spent in detention;

     ORDERS in accordance with Rule 103(C) and Rule 107 of the Rules, that the Appellant is to remain in the custody of the International Tribunal pending the finalisation of arrangements for his transfer to the State in which his sentence will be served.

Dated this 8th day of March 2006 at The Hague,
The Netherlands.

_________________________
Judge Fausto Pocar Presiding

_________________________
Judge Mehmet Güney

_________________________
Judge Andrésia Vaz

_________________________
Judge Theodor Meron

[Seal of the International Tribunal]

ALEKSOVSKI
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000
(“Aleksovski Appeal Judgement”)

BABIC
Prosecutor v. Milan Babic, Case No. IT-03-72-S, Sentencing Judgement, 29 June 2004
(“Babic Sentencing Judgement”)

Prosecutor v. Milan Babic, Case No. IT-03-72-A, Sentencing Judgement, 18 July 2005
(“Babic Judgement on Sentencing Appeal”)

BANOVIC
Prosecutor v. Predrag Banovic, Case No. IT-02-65/1-S, Sentencing Judgement, 28 October 2003
(“Banovic Sentencing Judgement”)

BLASKIC
Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000
(“Blaskic Trial Judgement”)

Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, 29 July 2004
(“Blaskic Appeal Judgement”)

“CELEBICI”
Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No. IT-96-21-T, Judgement, 16 November 1998
(“Celebici Trial Judgement”)

Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No. IT-96-21-A, Judgement, 20 February 2001
(“Celebici Appeal Judgement”)

Prosecutor v. Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96- 21-A, Judgement on Sentence Appeal, 8 April 2003
(“Mucic et al. Judgement on Sentence Appeal”)

DERONJIC
Prosecutor v. Miroslav Deronjic, Case No. IT-02-61-S, Sentencing Judgement, 30 March 2004
(“Deronjic Sentencing Judgement”)

Prosecutor v. Miroslav Deronjic, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005
(“Deronjic Judgement on Sentencing Appeal”)

ERDEMOVIC
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T bis, Sentencing Judgement, 5 March 1998
(“Erdemovic 1998 Sentencing Judgement”)

FURUNDZIJA
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000
(“Furundzija Appeal Judgement”)

JELISIC
Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001
(“Jelisic Appeal Judgement”)

M. JOKIC
Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S, Sentencing Judgement, 18 March 2004
(“Jokic Sentencing Judgement”)

Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Judgement on Sentencing Appeal, 30 August 2005
(“Miodrag Jokic Judgement on Sentencing Appeal”)

KRSTIC
Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgement, 19 April 2004
(“Krstic Appeal Judgement”)

KUNARAC, KOVAC AND VUKOVIC
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002
(“Kunarac et al. Appeal Judgement”)

Z. KUPRESKIC, M. KUPRESKIC, V. KUPRESKIC, JOSIPOVIC, (PAPIC) AND SANTIC
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic and Vladimir Santic, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001
(“Kupreskic et al. Appeal Judgement”)

KVOCKA, KOS, RADIC, ZIGIC AND PRCAC
Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Case No. IT-98-30/1-A, Appeal Judgement, 28 February 2005
(“Kvocka et al. Appeal Judgement”)

MRDJA
Prosecutor v. Darko Mrdja, Case No. IT-02-59-S, Sentencing Judgement, 31 March 2004
(“Mrdja Sentencing Judgement”)

D. NIKOLIC
Prosecutor v. Dragan Nikolic, Case No. IT-94-02-S, Sentencing Judgement, 18 December 2003
(“Dragan Nikolic Sentencing Judgement”)

Prosecutor v. Dragan Nikolic, Case No. IT-94-02-A, Judgement on Sentencing Appeal, 4 February 2005
(“Dragan Nikolic Judgement on Sentencing Appeal”)

OBRENOVIC
Prosecutor v. Dragan Obrenovic, Case No. IT-02-60/2-S, Sentencing Judgement, 10 December 2003
(“Obrenovic Sentencing Judgement”)

PLAVSIC
Prosecutor v. Biljana Plavsic, Case No. IT-00-39&40/1-S, Sentencing Judgement, 27 February 2003
(“Plavsic Sentencing Judgement”)

M. SIMIC
Prosecutor v. Milan Simic, Case No. IT-95-9/2-S, Sentencing Judgement, 17 October 2002
(“Simic Sentencing Judgement”)

D. TADIC
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999
(“Tadic Appeal Judgement”)

Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000
(“Tadic Judgement in Sentencing Appeals”)

TODOROVIC
Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, Sentencing Judgement, 31 July 2001
(“Todorovic Sentencing Judgement”)

VASILJEVIC
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Judgement, 25 February 2004
(“Vasiljevic Appeal Judgement”)

AKAYESU 
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001
(“Akayesu Appeal Judgement”)

KAYISHEMA AND RUZINDANA
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001
(“Kayishema and Ruzindana Appeal Judgement”)

MUSEMA 
Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 16 November 2001
(“Musema Appeal Judgement”)

NIYITEGEKA
Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96 -14-A, Appeal Judgement, 9 July 2004
(“Niyitegeka Appeal Judgement”)

RUGGIU 
Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, 1 June 2000
(“Ruggiu Trial Judgement”)

SERUSHAGO
Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Sentence, 5 February 1999
(“Serushago Sentencing Judgement”)

Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgement [Appeal against Sentence], 6 April 2000
(“Serushago Sentencing Appeal Judgement”)