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«SUMMARY OF APPEALS JUDGEMENT FOR MOMIR NIKOLIĆ International Please find below the summary of the Appeals judgement today read out by Judge Criminal ...»

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JUDGEMENT SUMMARY APPEALS CHAMBER

(Exclusively for the use of the media. Not an official document)

The Hague, 8 March 2005

United Nations

Nations Unies

SUMMARY OF APPEALS JUDGEMENT

FOR MOMIR NIKOLIĆ

International Please find below the summary of the Appeals judgement today read out by Judge Criminal Tribunal

Pocar:

for the former Yugoslavia As the Registrar announced, the case on our agenda is Prosecutor versus Momir Nikolić. In Tribunal Pénal accordance with the scheduling order issued on 2 March 2006, today the Appeals Chamber will deliver its International pour l’ex-Yougoslavie Judgement on Sentencing Appeal.

After having entered into a Plea Agreement with the Prosecution, Momir Nikolić pleaded guilty to count 5 of the Indictment on 7 May 2003. Count 5 of the Indictment, which relates to events which took place in Eastern Bosnia and Herzegovina after the fall of the enclave of Srebrenica in July 1995, reads “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 Potočari and in detention facilities in Bratunac and Zvornik; (c) the terrorising of Bosnian Muslim civilians in Srebrenica and at Potočari; (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.” 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. Accordingly, the Trial Chamber entered a conviction against Momir Nikolić for count 5 of the Indictment, namely, for the crime of persecutions, a crime against humanity under Article 5(h) of the Statute of this Tribunal.

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. Finding that it could not accept the sentences recommended by either party, the Trial Chamber sentenced the Appellant to 27 years’ imprisonment.

–  –  –

Under his first ground of appeal the Appellant submits that the Trial Chamber erred by venturing outside the facts of the guilty plea when assessing the gravity of the offence. The Appellant draws the Appeals Chamber’s attention to specific paragraphs of the Sentencing Judgement, concerning (1) the events in Zvornik, (2) the meetings at the Hotel Fontana, and (3) the Trial Chamber’s statement of his rank.

_________________________________

Internet address: http://www.un.org/icty Media Office/Communications Service Churchillplein 1, 2517 JW The Hague. P.O. Box 13888, 2501 EW The Hague. Netherlands Tel.: +31-70-512-5343; 512-5356 Fax: +31-70-512-5355 The Appeals Chamber agrees with the Appellant that 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. However, after comparing the facts as stated by the Trial Chamber with the facts acknowledged by the Appellant, the Appeals Chamber finds that the Trial Chamber did not err in stating the facts concerning the events in Zvornik or his involvement in the meetings at the Hotel Fontana. Regarding the overstatement of the Appellant’s rank, 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.

The Appellant’s first ground of appeal, including sub-grounds 1A and 1B, are accordingly dismissed.

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. The Appellant draws the Appeals Chamber’s attention to the cases of Radislav Krstić, Dragan Obrenović, Vidoje Blagojević, and Dario Kordić.

The Appeals Chamber has previously held that “[a] previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances”. 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.” 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.

It is in the light of those criteria that the Appeals Chamber has reviewed the Appellant’s case with the cases of Dragan Obrenović, Radislav Krstić, Vidoje Blagojević, and Dario Kordić.





With respect to the case of Dragan Obrenović, the Appeals Chamber considers that the cases of Obrenović and the Appellant 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. 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 level of participation in the commission of a crime and mitigating factors differ, different penalties are justified. Therefore, the Appellant has failed to show that the relationship between his sentence and that of Dragan Obrenović reveals error in the Trial Chamber’s Sentencing Judgement in this case.

In relation to Radislav Krstić, who received a sentence of 35 years’ imprisonment, the Appeals Chamber considers that the crimes committed 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 individuals participated in the crimes and their individual circumstances. The Appeals Chamber finds that the participation of the Appellant compared to that of Radislav Krstić and the respective mitigating circumstances are not similar. In sum, the Appellant has failed to show that the relationship between his sentence and that of Radislav Krstić reveals error in the Trial Chamber’s Sentencing Judgement in his case.

With respect to the case of Vidoje Blagojević, the Appeals Chamber notes that the sentence in the case of Blagojević is pending appeal and thus has not yet been the object of final consideration.

Therefore, the Appeals Chamber cannot engage in a comparison between the sentence of Vidoje Blagojević and that of the Appellant.

With respect to the sentence given to Dario Kordić, the Appeals Chamber finds that, as conceded by the Appellant himself, the killings were not on the same scale as those in Srebrenica. As Dario Kordić was not convicted for the same offences as those of the Appellant, the Appeals Chamber concludes that the two cases are not comparable.

For the foregoing reasons, the Appeals Chamber dismisses the second and twelfth ground of appeal.

Under his third ground of appeal, the Appellant argues that the Trial Chamber considered his role in the crimes both in the gravity of the offence and again as a separate aggravating circumstance.

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.

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 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 the paragraph concerning the gravity of the crime and the paragraph concerning the aggravating circumstance address as a general matter the Appellant’s role in the murder operation. 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. 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. 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.

Accordingly, the Appellant’s third ground of appeal is upheld.

Similar to the foregoing ground of appeal, the Appellant alleges in his fourth ground of appeal that the Trial Chamber considered the vulnerability of the victims as a factor contributing both to the gravity of the offence and to an aggravating circumstance. However, in this instance, 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 and dismisses the fourth ground of appeal.

Under his fifth ground of appeal the Appellant claims that the Trial Chamber erred in fact when it relied upon a mistranslation of defence counsel’s closing arguments at trial in weighing the Appellant’s sentence.

The Appeals Chamber acknowledges that the defence counsel at trial did not say “only 7.000 persons were killed in this campaign” but he said “around 7.000 men were killed”. Therefore the Trial Chamber relied on a falsely translated statement of defence counsel at trial. The Prosecution argued during the Appeal Hearing that “[the mistranslation] is worth considering, particularly since the […] Trial Chamber was specifically disturbed by the use of the phrase”. The Prosecution agreed with the Appellant that this translation error “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.” The Appeals Chamber agrees with the parties’ submissions. The Appeals Chamber first notes that the Trial Chamber expressed its stance in very strong words, namely, the Trial Chamber stated that it was “shocked” to hear the Nikolić Defence make this statement. Furthermore, it stated that the use of the term “only” in relation to the number of persons murdered was “shameful”. 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, which, the Appeals Chamber has previously emphasised, is “the most important consideration, which may be regarded as the litmus test for the appropriate sentence”.

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. For the foregoing reasons, the Appeals Chamber allows the Appellant’s fifth ground of appeal.

In his sixth ground of appeal, the Appellant submits that the Trial Chamber failed to give sufficient credit to the guilty plea as a mitigating circumstance. He first argues that the Trial Chamber had reservations about the value of plea agreements in general.

The Appeals Chamber notes that the Trial Chamber addressed its reservations when considering the general question of whether plea agreements were appropriate in cases involving serious violations of international humanitarian law. 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. This argument is accordingly dismissed.

Moreover, the Appellant argues that the Trial Chamber did not give enough weight to the fact that (1) his guilty plea, before the start of the trial, saves the resources of the International Tribunal, and that (2) he was the first Bosnian Serb to publicly admit his guilt in relation to the Srebrenica massacre. The Appeals Chamber first finds that it is in accordance with the jurisprudence of this Tribunal to allocate “little weight” only to the fact that the Appellant’s guilty plea saved International Tribunal resources. In relation to his second argument, the Appeals Chamber finds that 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 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.



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