³⁵⁴

Wednesday, 5 November 2003

[Sentencing Proceedings]

(Open session)

[The accused entered court]

--- Upon commencing at 9.04 a.m.

JUDGE SCHOMBURG: Good morning to everybody. Please be seated. May I ask Madam Registrar to call the case.

THE REGISTRAR: Good morning, Your Honours. Case number IT-94-2-S, the Prosecutor versus Dragan Nikolic.

JUDGE SCHOMBURG: Thank you. And the appearances for the Prosecution.

MR. YAPA: May it please Your Honours. For the Prosecution today, I'm Upawansa Yapa, appearing with Ms. Patricia Sellers, and Mr. William Smith, and Ms. Diane Boles is our case manager. Thank you, Your Honours.

JUDGE SCHOMBURG: Thank you, Mr. Yapa. Mr. Morrison, for the Defence.

THE GUARD: I'm sorry, Your Honour. I'm sorry.

MR. MORRISON: Good morning. Howard Morrison and Tanja Radosavljevic for the defendant, Dragan Nikolic. And may we say we are grateful to Judge Mumba for attending court today, and I hope that she is now on her way to full recovery.

JUDGE MUMBA: Thank you.

JUDGE SCHOMBURG: Thank you as well. As you said yesterday, health always has priority. But we are extremely grateful Judge Mumba ³⁵⁵ came to participate in today's hearing.

And may I ask, Madam Usher, please escort today's expert witness immediately into the courtroom before I give some preliminary remarks.

[The witness entered court]

JUDGE SCHOMBURG: Good morning, Professor Sieber. Thank you for coming to The Hague and assisting this Tribunal and the parties. May I please hear your solemn declaration first.

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

WITNESS: ULRICH SIEBER

JUDGE SCHOMBURG: Thank you very much. You may sit down. Before we start, for reasons of transparency, I want to briefly report on the result of yesterday's 65 ter (I) conference we had at 2.00 on request of the -- yes, at 2.00 on request of the Defence. It is easy to understand that with a view to this very comprehensive report, and taking into account that yesterday we received an additional addendum, there was the request to have the opportunity to go in some more details if need may be of the content of this report. So finally, we came to the conclusion that on the one-hand side, both parties have the right to file written submissions until Monday, 24 November, 12.00. These submissions will be taken into account for the purpose of the judgement. However, in a way of compromise, the parties waived again - I must emphasise - the right to cross-examine the witness and the right of the 30 days' rule. So I think it's a fair compromise, and both parties agreed to this procedure. May it be so. ³⁵⁶ We have in front of us a very comprehensive written report. Of course, not everything can be repeated in the framework of today's hearing. Let me therefore give some clarification.

What is the purpose of this report? Rule 100 calls for assisting the Trial Chamber in determining an appropriate sentence. It was therefore that the Bench decided, as it was done in the scheduling order of the 25th of September, 2003, to ask an expert to give some guidance because, no doubt, one problem of this Tribunal, being an ad hoc Tribunal, is to come to a consistent and rational sentencing policy. And no doubt some guidance is needed in this respect. We're trying to find experts primarily in the Netherlands. It was not possible in the short time available, and some other experts we asked to come, they were not prepared to do this extensive work. So, therefore, finally, we are extremely grateful that the Max-Planck-Institut fur auslandisches und internationales Strafrecht based in Freiburg, represented by Professor Dr. Ulrich Sieber, its director, was kind enough to prepare a report in this very short period of time.

In the scheduling order, it reads that this report should focus on the range of sentences for the crimes as laid down in the indictment to which the accused has pleaded guilty applicable in the states on the territory of the former Yugoslavia, member states of the Council of Europe, and other major legal systems. The report should not include any reference to concrete mitigating or aggravating factors. The sentencing practice in relation to these crimes developed by state courts in the states in the territory of the former Yugoslavia, international or mixed ³⁵⁷ courts, and, if available, the sentencing practice developed by other states mentioned above.

To clarify, it is to assist, not to determine a sentence, not to come to concrete conclusions, to give guidance. Of course, it is - and we are fully aware of this - impossible to identify customary international law on sentencing. It can only serve as assisting guidance for the determination of an appropriate sentence; and therefore, we found it helpful to have access to the sentencing practice, primarily the sentencing practice in the countries in the territory of the former Yugoslavia because no doubt there should never be a caesura, an opening caesura, between the practice of this Tribunal and the decisions handed down on the territory of the former Yugoslavia in the new developing countries.

And secondly, we have also to take into account that the crimes, the offences at stake, are crimes that are not only common to nearly all member states of the United Nations but also more than 100 countries of the United Nations have the same crimes in order to live up to the expectations in connection with the complementarity principle of the ICC; and therefore, it is important to know something more in detail. First, of course, on the gravity. How is the gravity seen in different countries, especially related to murder and to rape, be it now in peacetime or in wartime; and as far as it is possible, also in relation to torture.

As for prosecution, I think this Tribunal has already established a reasonable practice how to handle and to work with the additional ³⁵⁸ elements of crime. This is the discriminatory intent. Questioned by the Court:

JUDGE SCHOMBURG: Therefore, I would invite you, Professor Sieber, to give us an overview, first focussing on the policy of Bosnia-Herzegovina, Republika Srpska maybe to address the question what is superceding the law of the entities or the law of the state; addressing the range of sentencing, and then the sentencing practice; and then go into those major mitigating and aggravating factors, not in concreto but in general, how are they taken into account in not only the countries on the territory of the former Yugoslavia but also other major legal systems, especially those relevant for the concrete case, that is, guilty plea and where we don't have the legal institution of guilty plea, confession; what is the value attached to cooperation with the Prosecution; who has to assess this cooperation, the Prosecution or is it for the Judges to decide on this? And then finally, related to aggravating factors, what about the position of authority, especially responsibility, in a concrete case like ours as a commander of the camp, vis-a-vis the inmates, and other aggravating factors?

I think this should be the scope of your report, but I would invite you in the beginning to give us an overview what is the work and what is the basis of the work of the Max Planck Institute in Freiburg that we are not under the maybe misleading impression that this is the work conducted by one person and the one or other assistant only. We have a number of names and references at the end of the body of the report as such, and maybe it's of assistance to know how this institute works and ³⁵⁹ what are the basics and the staff members of this institution. Professor Sieber, the floor is yours.

A. Your Honours, with respect to the last question, I would like to say that the Max Planck Institute is an independent research institute. Its specific feature is first that it comprises both legal aspects and criminological aspects. And its second specific feature is that it has a department dealing with specific legal orders. So whenever a question comes up as the question of the court, what is the situation in a specific country, we can in many cases refer to specialists in our house. We also have a network of contributors which we can ask if there are questions which cannot be covered by our own staff.

In the following, I would like to illustrate you this with respect to the research which we have done for the Court. I would like to first give a short introduction with respect to the aim and the scope of the research. In a second part, I would like to turn to the research method which we have used for this research, illustrating concretely the work of the Max Planck Institute. And in the third and main part of this report, I would like to present you the results of our study. Let me start with the scheduling order of the Trial Chamber of the ICTY. We have been requested two types of information. One is sentencing law and the other one is sentencing practice; sentencing law referring to normative aspects, which we can find in the books and court decisions, and which was dealt with in the Max Planck Institute, especially by its criminal law section; and the other type of information concerned sentencing practice, which requires empirical information, which mostly ³⁶⁰ you cannot find in the books but for which you have to do criminological research. And this part of the study was primarily conducted by the criminological department of the Max Planck Institute. The scheduling order of the ICTY - and I refer to the computer presentation, so I would like to switch on the computer evidence mode in order to follow it - the second request concerned two regions to be covered: On the one hand side, the territory of the former Yugoslavia; on the other-hand side, other countries, especially of the Council of Europe. We have interpreted the scheduling order on the background which Your Honour has just explained. It's Article 24 of the ICTY Statute which provides that "The Trial Chamber shall had recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia." Similarly, as laid down in Article 101 of the Rules of Procedure.

Interpreting the scheduling order on the background of these rules raised some questions. The first question was: Which point in time should be covered by the question. Should we deal with the situation of 1992, when the acts were committed? Should we deal with the situation in 2003? Or should we deal with the situation in 1992 as mitigated by subsequent amendments applying the lex mitior principle. Similar questions arose with respect to the relevant practice. The question arose, should we consider the courts of the specific place of the acts, which means especially Bosnia and Herzegovina and especially the Serbian entity? Or should we consider a kind of average of the courts in all republics? ³⁶¹ An additional question concerns the issue, how should we weight the significance of the law on the territory of the former Yugoslavia and the significance of the law of the other countries?

We have decided that it is up to the Court to give answers to these questions and that we will try to present the information in a way so that you can refer to each of the specific questions so that you find information about the different points in time, about the different relevant practices, about the different laws of countries, and this explains the structure of the report. We want to leave it open to the Court to answer these questions.

The timetable of the scheduling order was quite narrow for such an extensive report. When we received the scheduling order, we had about three weeks. We decided to take one week for defining the concept and gathering the information, especially by conducting interviews in the various entities. A second week was devoted to the analysis of information, and the third week we were dealing with the preparation of the report, which means typing, proofreading, printing, sending it out. This short timetable has some consequences on the result of the study. Using the research standard of the Max Planck, we would have needed a longer time. It's common practice to the Max Planck Institute, for example, to start with a pilot study, and then to reconsider the concept of the study. We did not have the time to do this. For that reason, I'm not presenting you an ordinary study of the Max Planck Institute, which would have taken half a year or a year. However, I think I can present you a solid pilot study representing significant progress ³⁶² compared to otherwise existing information on sentencing. And this was also the reason why we accepted to do this research within such a short term of time, because we think having this information might be valuable for the Court.

Turning to the research method, which we have to use, I would like to differentiate between the normative research and the empirical research, as I have just explained. The normative research was first facing the problem of country selection, first for the former territory -- for the territory of the former Yugoslavia, and then for the other countries.

In Yugoslavia, we were considering the territory of Yugoslavia in 1994, which means the legal framework which was set in 1976 and 1977 in the Socialist Federation of Yugoslavia. Considering not only the time of 1992 but also the time of today, we investigated the situation in -- I'm using alphabetical order -- Croatia, in Bosnia and Herzegovina, where we find a split situation, with laws of the Federation, laws of the Federation of the Republic -- of the Federation and of the Republic of Srpska. We tried to investigate the situation in Serbia and Montenegro and in the former Yugoslav Republic of Macedonia. So we tried to do what was possible within this time frame.

With respect to the member states of the Council of Europe, we tried to cover as many countries as was possible using reliable methods. This means having in-house staff for these countries or to have reliable partners which could give us country reports for these countries, and this resulted in country reports for the states which you find here on your ³⁶³ computer screen, Austria, Belgium, England, Finland, France, Germany, Greece, Italy, Poland, the Russian Federation, Spain, Sweden, and Turkey. In addition, we tried to consider some other representative countries of the world. We have chosen Canada and the USA; in South America, Argentina, Brazil, Chile, Mexico; in Africa, the Ivory Coast and South Africa; and in addition, in Asia, China; and furthermore, Australia. In order to give a representative picture which we could provide with reliable in-house staff or partners.

With respect to understanding the results of our study, it is most important to address the methods of legal comparison, which we have used for fulfilling our tasks. In legal comparison, you have in principle two methods you can use, as illustrated on the computer screen, I would like to call the first method a law-based method and the second method case-based method. Doing legal comparison and using a law-based method means comparing statutes. Using this method, for example, we would compare the statute on murder in one country with the statute on murder in another country. This method creates various difficulties between -- because the problems which are dealt in one country are often described - for example, in the headline of a statute - with a different term in another country. So it might happen that questions which are dealt in country A with a section on rape might be covered in another country with a section on aggravated sexual assault or something. Or to give another question: If we are referring to crimes against humanity, it might happen that in certain legal orders there are no crimes against humanity or crimes against humanity committed by murder. ³⁶⁴ So if we would only refer in our comparative work to certain statutes, the answer would be in country B there is no such law. The respective problem might be solved, not in a crime by -- against humanity but in a crime named murder. However, since there is no statute on crimes against humanity, the answer would be it's not punished in this country. Now, it's obvious that this would not be an adequate answer to the question which we have to fulfil and to the legal background of the scheduling order. For that reason, it seemed to be more appropriate, at least for certain parts of the research, to turn to a case-based method, comparing results of cases.

Using this method, we would not compare certain statutes, but we would compare the results of specific cases. So the starting point for this case-based method is not a special statute, like crimes against humanity, but it's a kind of case or a model case, like A kills B using an iron stick and he had this and that intention, what is the result of this case in a specific country?

Deciding between these methods with respect to the territory of the former Yugoslavia, we relied on a law-based method because in Yugoslavia we had in addition an empirical research with which we did compare the cases, so our approach for the territory of the former Yugoslavia, where we had also very short time for interviews with the judges, was to compare in principle statutes but to widen the view a bit and not only to compare murder but to admit that, for example, war crimes are included in the research.

As far as the other countries are concerned, we primarily used the ³⁶⁵ case-based method. In our questionnaire, we gave some model cases to our country reporters and asked them what would have been the sentence range for this case in your country? And we left it open to the country reporter to decide which provision is applicable.

The questionnaire for the country reporters started with general questions. We asked them to indicate in the questionnaires information about sentences for serial criminal offences, factors for determining actual sentence, changes due to the offender's role as principal or aider or changes due to a guilty plea. We furthermore asked about the possibilities to alter sentences after its imposition, especially about early release and parole, rules of pardons, amnesties, and other types of clemency.

The second part of our normative questionnaire was dealing with model cases, and it was the task of the country reporters to find out the sentencing ranges for these cases. Building up these model cases, we orientated this in the counts of indictment and the guilty plea, so we gave our country reporters two variations of murder cases, which are very close to the cases which you have in your indictment; two alternatives of torture, which are mentioned in the indictment; three cases of sexual violence; and three variations of persecutions. And for each of these cases, the country reporters had to give us the statutes which according to their opinion would apply in their country and what would be the outcome in sentencing ranges.

In the questionnaire, we also asked for modifications. We asked for the situation in 1992 and the situation for today. Apart from these ³⁶⁶ changes due to the time passed, we also asked them: Would the sentences range in your legal order be changed to a guilty plea? And furthermore, would there be a difference if the crime would be viewed as a crime against humanity or as a general ordinary crime, like murder or rape? With respect to the second aspect, the empirical research, we could do this empirical research not in all of these countries. We concentrated on the territory of the Socialist Federation of Yugoslavia, and we developed an empirical questionnaire for judges which we interviewed in the former Yugoslavia.

This questionnaire was different from the normative process for our country reporters. We had to take into account that the time of the judges is very short, was extremely difficult within one week to find judges which we could interview, and we assumed that we have about 30 to 60 minutes with the judges, so we had to be careful that the questionnaire did not become too complicated. In the questionnaire, we first asked for some normative aspects; these are different reasons. It helped us to find out the situation in the entities. It gave us a certain control about the knowledge of the judges and a further aim was that the judges first should consider their legal orders before they come out with a certain sentencing range.

For that reason, we asked the judges which we interviewed first for the maximum penalties in their legal order, for the criteria for sentencing, for the specific provisions on murder, torture, rape, and combined offences, and for the differences in the legal situation between 1992 and 2003. ³⁶⁷ The second part of the questionnaire then concerned the previous courtroom experience of the judges. We did not only want to ask them to evaluate artificial model cases, but we wanted them to remember what they did up till now, and for that reason we asked in the second part of the empirical questionnaire the judges, what is your previous courtroom experience with rape, murder, torture, or combined offences? How many murder cases did you sentence already? And what was your highest and your lowest outcome in these cases?

After these types of questions, we started with a third type in our empirical questionnaire, which was judging model cases. We built some model cases and asked the judges, what is be your sentence in these cases? These model cases were a bit different from the model cases which we used in the country reports. With respect to the country reports, we had contributors which could work for a whole week on the cases; here we had judge who only had maybe 60 minutes' time. For that reason, these model cases were much simpler. It read, for example, as you can see on the computer animation: "A 35-year-old man with no prior record commits the following acts against detainees under his authority, and the acts are rape, murder, torture, or the combined offences against five to ten victims." We also asked them, is there a difference with respect to the point in time? Would there be a difference if you judged it as crimes against humanity, a term under which these judges also included war crime, as we found out, and would there be a difference if there was a guilty plea or not for your judgement?

These types of questions, based on a define questionnaire with ³⁶⁸ detailed instructions for our interviewers, was posed to a number of judges. We tried to find a representative sample of judges. In Bosnia and Herzegovina, we interviewed three judges in the Bosnia and Herzegovina Federation and three judges in Republika Srpska. In Croatia, we started with three judges in Central Croatia and two judges which we found in addition in East Slavonia. In the former Yugoslav Republic of Macedonia or Macedonia, we interviewed three judges. In Serbia and Montenegro, we managed to find three judges in Montenegro. We tried to interview judges in Serbia; however, all these judges needed an authorisation by the president of their court. We managed to get these authorisations for all the courts which I have mentioned. It was extremely difficult to do all this in one week. Only in Serbia the answers were negative; the judges there that they have not yet -- or they don't have an authorisation of their administration, and for that reason we could not interview judges as was foreseen in Serbia. Slovenia was not covered in our study. The interviews took about 30 minutes to 1 hour. The atmosphere was very cooperative. We did not tell the judges that it was a research for this court. We wanted to avoid any negative influence on this. We just said it's a research of the Max Planck Institute. And we also started asking them first the ordinary crimes. And only at the end we turned to crimes against humanity in order to really get a neutral picture of the situation, and it is my feeling that this -- the results of the studies are not affected by any political or ethnical attitudes of the judges.

After having explained the legal and the empirical methods with ³⁶⁹ which we tried to answer the questions, I would like to turn to the results of our study. Coming to the results, I would like to differentiate first between the results for the territory of the former Yugoslavia and then to the results for the other states, and within both sections I would like to differentiate between the normative results and the empirical results. I'm starting with the territory of the former Yugoslavia. First, dealing with the normative framework, because the normative framework sets the standards for the empirical judging, which I will deal with after.

Describing the normative framework in the former Socialist Federation of Yugoslavia is difficult, especially if you are taking into account two points of time and the various republics and entities. If you are dealing with the situation in 1994, it is necessary to explain the situation in the former Socialist Federation. If you are dealing with the situation today, you have to give answers for the various states, for Slovenia, Croatia, Bosnia-Herzegovina, Serbia, and Montenegro, and Macedonia. And in addition, within these countries, you have to deal with the situation in different entities, which is different. Giving this picture is especially difficult because in all of these entities the laws changed.

The situation in these entities is difficult to find out due to problems of access to information. Due to the specific situation in these entities, it seemed to us that even sometimes it is not completely clear to the judges there which laws they have to apply.

In order to illustrate this, I'm referring to a computer ³⁷⁰ presentation which will gain importance in my future report. It illustrates that in the beginning in the former Yugoslavia there was the Criminal Code of 1951. The situation then changed with the Constitution of 1974, which gave a certain at least legal autonomy to the various republics. As a result of this autonomy which was given to the different republics, we have a split situation -- legal situation in Yugoslavia, starting in 1976 or 1977. In 1976, the Criminal Code of the Socialist Federation of Yugoslavia was enacted. This general code for the whole Federation was especially dealing with provisions of the general part. Usually you read a description about Yugoslavia; it's just the general part. However, if you look into more detail in this code, it also contains a number of specific statutes, especially the war crimes. Besides this code of the Federation, there were codes of the various republics - Bosnia and Herzegovina, Croatia, Serbia, and the other ones - these codes were created in 1972 and they were dealing especially with a special part of criminal law, for example, with provisions on murder, on rape, on torture. You don't find these provisions in the code of the Federation. You just find it in the code of the republics. However, in addition, these codes of the republics also contained some general parts of criminal law which were not regulated in the code of the Federation. For example, the provisions on early release were not regulated in the code of the Federation. They can be found in the codes of the republics.

So answering Your Honours' question at the beginning, one would have to say the relationship between these codes was that both codes ^{371BLANK PAGE 372} existed beside each other and each code dealt with a specific area. When the old republic broke apart, with the disintegration, especially in 1992, and the entities became independent, at the beginning there was no time to develop new criminal codes. Within the various republics, there was just a reference to the old codes which were declared to be applicable. This was done first by presidential decrees -- declaring the state of war, declaring the continuity of certain laws, including the criminal codes -- and later on, for example, in Bosnia and Herzegovina, in 1994 there was a law enacted on the retroactive application of these new laws. This means that in 1992 the old code of the Federation of 1966 [sic], which became in effect in 1977, as well as the codes of the republics, such as the Bosnia and Herzegovina code of 1977, were applicable.

Subsequently, the republics enacted their own criminal acts. For that reason, you find in 1998 a Criminal Code of Bosnia and Herzegovina Federation. Beside this there is a code for the Republika Srpska of 2000 and there is a code for the Brcko district. In Bosnia and Herzegovina Federation, the situation became a bit more complicated when in 2003 a new code was enacted. In addition, in the year 2003, the Office of the High Representative enacted a Criminal Code for the whole territory of Bosnia and Herzegovina. The relationship between the codes of 1998, 2000, and 2003, on the one-hand side, for the republics, and the OHR code of 2003 is similar to the relationship of the codes in the Federation of 1976 and 1977. They exist beside each other. Each of the two types of code covers different areas of law. The laws of the Federation, which originally were ³⁷³ dealing with all questions, today are applied for the specific part of the Criminal Code; so, for example, dealing with murder, rape, as well as the general questions relating to these provisions - there is a slight difference to the old situation - whereas, the code of the OHR of 2003 for the whole entity of Bosnia and Herzegovina deals with crimes connected to the whole entity, which means in practice war crimes. There is now also a crime against humanity included, which is new for the region. It deals with crimes against the currency and a high number of questions which are affecting the whole territory.

So the range of specific provisions in this code of the OHR is quite broader as were the provisions in the old code of 1970. As I already said, it does not only contain the war crimes, but also a new crime on humanity.

Now, this development, which I think can only be understood if you really look at a picture - and for that reason I'm referring so much to these screens - explains why the situation in the former Yugoslavia today is so difficult to judge. It also explains why I like to present you an addendum with all the new information, which we got in the last two weeks. In practice, this now has to be applied on various legal questions for fixing sentences. I'm differentiating between five aspects, or you could call it five legal steps, which you have to decide when you are dealing with fixing sentences. The first question which I will deal with is the sentencing range in the specific statutes. The second question concerns the aspect whether these sentences ranges are modified, for example, in cases of only aiding or in cases of guilty plea. A third ³⁷⁴ question deals with general criteria for sentencing, with these broad ranges of sentences. Question four concerns the concurrence of offences. And in addition to these questions, which are the steps and the questions to be answered to the point of the decision of the Court, there is an additional question concerning the execution of punishment, the question whether there are procedures whether there are procedures in the countries which permit for early release.

Due to time reasons, it's not possible to answer all these five questions, considering the different codes which I have illustrated. For that reason, I will only do this for step 1, and then I will become much shorter. Step 1 now concerns the sentencing range, and I'm choosing the case of sentencing range for murder with two alternatives, murder as an alternative crime and murder as war crime.

Let me first illustrate the situation in 1992. As I have told, the ordinary murder statutes or offences were laid out in the criminal codes of the republic. In our case, due to the act of commission, the Republic of Bosnia and Herzegovina is especially interesting, and the code of the Bosnia and Herzegovina in 1977 had a provision on murder and a provision on aggravated form of murder. Aggravated form concerned circumstances with certain motives of the perpetrator and circumstances with doing great risks and harm to the victim, circumstances which are contained in the guilty plea of the accused. With respect to murder, the Criminal Code of Bosnia and Herzegovina has a sentence range of 5 to 15 years, and under these aggravated circumstances a sentencing range from 10 years to death penalty; in addition, a provision that if a statute ³⁷⁵ provides the death penalty, the Court can also apply a sentence of 20 years.

This is all those -- quite similar sentence range for the war crimes, which can be found in the Criminal Code of the Socialist Federation, war crime committed by murder provided a prison range from 5 years to death. And instead of the death sentence, the Court could impose a 20-yearsentence. The provision on early release provided that after half of the time of the decision sentenced under certain commissions, early release is possible, and under very specific circumstances, already after one-third of that time.

After the disintegration of the republic, as I told, in 1998 the Criminal Code of the Bosnia and Herzegovina Federation of 1998 was enacted.

This code, which now contained, as explained, both the general part and the specific part, with ordinary crimes and war crimes, provided a sentencing range with a minimum of 5 or in aggravated cases with 10 years, up to 40 years in prison. The provisions on early release were the same.

In the Republika Srpska, the code of 2000 provided for the same minimum ranges, which is 5 years or in aggravated cases, 10 years; however, to a maximum, including the lifetime of the perpetrator, and for war crimes we had a sentencing range from 10 years to lifetime. In 2003, the new code of the Federation of Bosnia and Herzegovina provides the same minimum range for murder but a maximum range of 45 years. This is provided under the term of long-term imprisonment for ³⁷⁶ long-term imprisonment. If it's provided by a statute, there is a sentencing range between 20 and 45 years. And with respect to long-term imprisonment, there is a specific provision on early release, which provides that for these provisions with long-term imprisonment, early parole can only be granted after three-fifths of the penalty served. This code of the Federation of Bosnia and Herzegovina, is in the general part similar to the code of Bosnia and Herzegovina, which was enacted by the Office of the High Representative of the whole Republic of Bosnia and Herzegovina. As I explained, it does not contain the provisions on ordinary offences; however, only provisions for the whole of the territory, especially war crimes, which are provided with a sentence of 10 to 45 years. And in this code, there is also a crime against humanity, with the same sentencing range as the war crime, which is 10 to 45 years.

Now, this picture is -- may be important with respect to the application of the lex mitior principle, starting with the fact that according to the nullum crimen nulla poena principle the offender can only be sentenced according to the provisions which were in place when the act was committed. For that reason, we have to refer to the situation of 1992. However - and this is foreseen in the laws of Yugoslavia - that if at the time of the court proceedings there is a less severe sentence, this less severe sentence should be applied. The reason for this is that when in the meantime the legal community is changing its opinion - for example, considering a crime less severe - the perpetrator should benefit by this fact. ³⁷⁷ An additional specific question, which I do not want to deal with, is the question whether the law is changing a couple of times, whether lex mitior only concerns the time of the act and the time of the proceedings, or whether the accused should also benefit by less-severe range of sentences, which are only applied within this big range for a certain time of year.

Now, this picture here is setting the range of sentences. As I told, this is only a first step. Beside the statutes, fixing the sentences, and the specific statute, there are in most countries also general provisions which are able to modify sentences ranges. An example of such a modification is a modification for aiding. For example, Article 24 of the Criminal Code of the former federation, the code of 1976/77, provided that in case of aiding, the punishment may be reduced. You have similar provisions in the Criminal Codes of the republics. I do not want to go into the detail.

As far as modification by a guilty plea is concerned, we did not find a specific provision for modifications on guilty plea. For that reason, reducing the sentences due to a guilty plea must be based on the general criteria for sentencing.

These general criteria for determining sentence - I'm coming to the third legal question - are to be found in Article 41 of the Criminal Code of the Socialist Federation of Yugoslavia. Article 41 says that by fixing the concrete sentence within the range of sentences given by the specific statutes with their modifications, the Court should take into account "in particular, the degree of danger or injury to the protected ³⁷⁸ object, the circumstances in which the act was committed, the past conduct of the offender, his personal situation and his conduct after the commission of the criminal act, as well as other circumstances related to the personality of the perpetrator." And again here the situation in today's republics is similar.

Step 4 concerns the concurrence of offences. When a perpetrator commits several acts, Article 48 of the old Criminal Code of the Federation has some clearly defined rules. "The court shall first assess the punishment for each of the acts, and then proceed with the determination of the integrated punishment, the compounded sentences, for all the acts taken together."

And in more detail, Article 40 says, "If capital punishment has been inflicted, the court shall pronounce that punishment only; if the court has decided upon a punishment of 20 years'" - which is the maximum - "imprisonment for one of the combined criminal acts, it shall impose that punishment only; if the court had decided upon punishments of imprisonment for the combined criminal acts, the integrated punishment ... May not exceed a period of 15 years' imprisonment," which is the maximum for ordinary punishment ranges.

The next question which might be relevant for the Court is the execution of punishment, and especially early release. As I already told, this question of the general part is not regulated in the code of the Federation but in the Criminal Code of the republics, for example, of Bosnia and Herzegovina of 1977. Article 31 says that "A convicted person who has served one half of the sentence of imprisonment may be discharged ³⁷⁹ if in the course of serving his sentence he has improved to the point where he can reasonably be expected to behave himself well after his release from prison, and particularly not to commit criminal acts ..." And in addition, Article 31, paragraph 3, has an additional rule under which "A convicted person who has served one-third of his punishment of imprisonment may be released on parole, provided the conditions referred to in paragraph 1 of this article exist, and provided that special circumstances relating to the personality of the convicted person manifestly indicate that the purpose of the punishment has been attained." As will be shown later, this possibility of early release after one-third is shorter than the average of the other countries outside the territory of the former Yugoslavia.

Going through the normative situation in the former Yugoslavia, it becomes clear that the courts in the territory of the former Yugoslavia had a broad discretion, as in the other countries, and for that reason it is now most interested to look to the empirical findings and to see in which way the judges in the court on the territory of the former Yugoslavia have fixed their sentences.

As I told you, after dealing with normative issues in our interviews, we have asked all the judges - there were 17 judges - first about their courtroom experiences. We asked them, how many murder cases did you deal with, and what was your minimum and what was your maximum sentence which you remember? This question showed that -- we had chosen judges, many of them had a rich experience with sentencing. If we add up together the cases which these 17 judges had dealt with, they had dealt ³⁸⁰ with about 1.400 murder cases and about 230 rape cases. They did not have a broad experience on torture or something; rape, some experience. Now, the table here shows the sentences range for these cases. It illustrates that we have a very broad range. There are, for example, as you see, murder cases where only a very light punishment was given. To some part, this has to do that the judges also included acts of attempted murder here. And it also shows that the ranges are very different, especially with respect to Macedonia. The sentences ranges were more draconian, going up to lifetime imprisonment. For rape, the table shows we have a more lenient range of experience of the courts. After testing the courtroom experience, the previous experience of the judges, we then asked them to judge our model cases. Model cases, as I told you, were built in the way that we told them a 35-year-old male commits the act of murder in a camp.

Before giving and explaining the results here, let me say that this is only a rough method of asking the question for their experience, because when sentencing concrete cases, it is clear that the courts need much more concrete information about the perpetrator, about the acts. The judges expressed this very vividly and they also said to give a real clear answer we need much more facts about the case; however, in principle, with no more facts we would give you the following answer. And in this picture what you have in front of you now, we are differentiating the answer according to our question. In the model case, murder, what would have been the sentencing ranges? And this table shows you the minimum and the maximum ranges of the judges in each court. ³⁸¹ On the left, we are starting -- left column, murder case without guilty plea; the ranges primarily may be between 50 and -- between 5 and 15 or 20 years. On the right-hand side, you see the answer of the judges, again minimum and maximum, with guilty plea. And moving downwards, the answer is given for murder as a war crime. As I told you, when we asked the judges about crimes against humanity, they referred to the war crime cases without differentiating in a very sophisticated way between these two categories.

Since you have specifically asked for the impact of a guilty plea, it might be interesting to look at the next table. On the top column, you have the different cases, rape, murder, and torture. And here we have billed the average sentences of these 17 judges. If you do this, you find an average sentence for a single rape case of about seven years; for murder, 15 years; for torture, a bit less than 6 years. And asking for the combined offences, what would be a sentence if an accused has committed all of these acts against five or ten victims, the average of the answers were 35 years.

In the next column you see the guilty plea discount of the judges, which is about, on the average, it differentiates between the various crimes, 20 per cent.

In this next section, you see the same situation for war crimes; first without guilty plea and then with guilty plea. If you compare the various answers, especially with respect to the guilty plea discount, as I might call it, it becomes obvious that the guilty plea discount is higher for less severe cases and it's lower for the severe cases. So one might ³⁸² say that the guilty plea discount is outweighted a little bit by the gravity of the offence. This becomes clear when one sees that the guilty plea discount for war crimes is much smaller than the guilty plea discount for general crimes.

And this result also became clear when questioning the courts. One answer of a judge was, for example, when he was asked about the discount due to a guilty plea, he said, "In such a severe case of combined offences and war crimes, how can one ask for a discount still?" But nevertheless, for all these cases, there is a discount of the judges. If you're looking for this table of combined offences, committing all of these crimes against five or ten victims, judging these crimes as general crimes, the average of sentences goes down from 35 to 27 years, which means 20 per cent; if you judge it as war crimes, the discount goes down from 36 to 33 years, which is 9 per cent.

So the answer is on the territory of the former Yugoslavia, there is a discount for a guilty plea, and it depends a bit to the gravity of the offence.

JUDGE SCHOMBURG: Professor Sieber, may I interrupt you. For technical reasons, we have to make a break always after 90 minutes. And this would be, I think, the appropriate time for having this break now. Therefore, the trial stays adjourned until 11:00 sharp.

--- Recess taken at 10.26 a.m.

--- On resuming at 11.05 a.m.

JUDGE SCHOMBURG: Please be seated. Professor Sieber, in order that you can calculate your time, the ³⁸³ next break will be five minutes past 12.00. So it's one hour to go from now. Thank you.

Please continue.

A. Thank you, Your Honour. Before the break, I have described the results of our research for the territory of the former Socialist Federation of Yugoslavia, first with respect to the legal normative side and then turning to the empirical findings, which is to the question how the 17 judges which we have interviewed would have evaluated a case which is similar to the case as is shown by the indictment and the guilty plea.

As I have shown, with respect to a combination of these cases of rape, murder, and torture, the judges would in an average, if this method is permitted, given a sentence of about 27 years for a general crime with guilty plea or 33 years for a war crime with guilty plea. When the judges had given their possible sentencing on these small model cases, our interviewers asked them, what are the reasons for your judgement? Analysing the answers, it was interesting to see that these answers differentiated to a certain extent from the answers which they had given with respect to the normative questions, what are in general the criteria for sentencing in your legal quarter. The reasons were narrowed. And when we asked them after evaluating each case and each type of case, they gave a variety of answers, a variety which is difficult to be structured. For that reason, the present table on your screen gives you the main reasons, structure, and including percentages how many judges did mention this reason. And here you see, with respect, I just referred to ³⁸⁴ the general crimes, about 50 per cent of the judges interviewed, judging the case without guilty plea, referred to the position of the offender; 38 per cent did just refer to the law and said, "We apply all general criteria by the law"; 31 per cent mentioned the vulnerability of the victim; 13 per cent the severity of the case; and 13 per cent the breach of duty.

When we had asked them about their sentence, in case of a guilty plea, and they had given us their evaluation, which as I said, included this guilty plea discount, the judges were again asked, "What are the criteria for the sentence?" In their answers, about half of the judges referred to the generic law saying, "We were considering all general criteria provided by law in mitigating sense"; 25 per cent mentioned remorse; 19 per cent, victim satisfaction; 13 per cent referred to the no prior record of the accused; and 13 per cent referred to procedural economics.

So summing up this empirical survey, we can say that interviewing 17 judges from different areas on the territory of the former Federative Republic of Yugoslavia showed that in judging this case there was a wide discretion and wide variances among the judges. For example, with respect to combined offences, one judge referred to a sentence of 8 years, another gave the maximum for 45 years, and the third for life imprisonment. Summing up, it is clear that there is definitely a guilty plea discount, which is a bit dependent on the severity of the case, and there is a war-crime addition. The average for wartime offences with guilty plea was 20 years for the single murder case and 33 for the combined ³⁸⁵ offences.

And finally, it might be interesting to mention the answers of the judges to the question: What would have been your question if you would have sentenced the case in 1992? The answer was that there is no difference. It might be that some of the judges misunderstood a little bit the aim of the question. The answers were very strong with respect that political grounds would not change their attitudes. They said, "I'm the judge. Justice is justice. And for me it does not depend whether I judge the case today or ten years ago." Only a few judges mentioned that the law might have different in 1992. But in principle, the aspect dominated that it's up to the discretion of the judge to determine the sentence and that they are quite independent.

Now, let me turn from the situation on the territory of the former Socialist Federative Republic of Yugoslavia to the other countries, to the other countries where we did only a normative research. We could not in the time given conduct an empirical research interviewing judges all over the world. This becomes clear if you consider the countries which we were looking at.

With respect to these other countries, be it Council of Europe member states or be it other countries, in our questionnaire, as I told you, we were again especially asking for five legal questions which are important for fixing a sentence; this is what is the sentencing range, especially in the specific statutes? Are there specific modifications of sentencings, especially for aiding and for a guilty plea? What are the general criteria for sentencing? How do you deal in case of a concurrence ³⁸⁶ of offences? And finally, how is the situation with respect to the execution of punishment, especially early release, pardon, amnesties, and similar institutions?

With respect to step 1, concerning the sentencing range, the survey showed that 20 of the 23 countries examined provide for lifetime imprisonment for the rest of the accused's life. Beside lifetime imprisonment, there are also regulations on statutory terms of imprisonment. These statutory terms for imprisonment range in the countries examined from 10 years to 60 years, or in some countries up to an unlimited term. If you're looking, especially in the table, in the graphs of the written report, you can see that most countries have a statutory maximum of between 15 and 25 years.

Becoming concrete and not asking in general for the maximum terms of imprisonment but for the concrete minimum and maximum terms, we have to go to the evaluation of concrete cases. And as I told you, the task for the country reporters was to fill in a table for each of these cases, as I told you, two variations of murder cases, two variations of rape cases, and so on; to indicate which statutes are applicable and to indicate the range of sentence for this case.

The case, for example, model case 1a was "In 1992, in the context of a widespread and systematic attack against the civilian population, a commander of a detention camp, motivated by ethnic bias and acting jointly with others, kills a person by means of sustained beatings involving the use of weapons." And as I told you, the country reporters were asked to give us the situation for general crimes in 1992 and in 2003, as well as ³⁸⁷ for crimes against humanity in 1992 and in 2003.

I will not over-flood you with too many informations, and in order to have a concrete outcome, we tried to concentrate the information in the report using an assumption, especially with respect to the point in time to be concerned. If the country reports indicated that the laws changed between 1992 and 2003, we selected the most lenient punishment due to the principle of lex mitior. So either if the sentence was more lenient in 1992 or if the sentence was more lenient in 2003, we took the most lenient sentence with respect to our general evaluation and with respect to the results which I'm presenting to you.

The present table shows you the results for model case 1a. It shows that in the majority of the countries, the maximum sentencing range would be a term of imprisonment up to the lifetime of the offender. It also shows some minimum sentences, which are indicated in the majority of the countries.

If you compare this picture with the next table, giving the results for a variation of the rape cases, it shows that the penalties - and we are talking here about ordinary crimes - are much more lenient. Only very few exceptional countries the sentences include lifetime imprisonment, due to the results of this case. If you're asking the case in the following, "In 1992, in the context of a widespread or systematic attack against a civilian population, a commander of a detention camp motivated by ethnic bias, personally removes or facilitates the removal of numerous female detainees from the camp under his control to other locations, knowing that the removal is for the purpose of rapes ³⁸⁸ and other sexually abusive conduct to be perpetrated by others or by otherwise encouraging other perpetrators to engage repeatedly in sexually abusive contact," then the ranges are indicated in this table which you see here.

This table does not consider the aspect of war crimes, since we did not have the time to extend our research in all these countries to include war crimes.

Furthermore, the country reporters were asked to give answers to the question whether there are modifications of these ranges. We especially asked for two aspects, modification for aiding and modification for a guilty plea. With respect to modifications of only aiding and not being a co-perpetrator, comparative research was quite difficult because there are a number of countries which do not differentiate between aiders and instigators, on one hand side, and perpetrators and co-perpetrators on the other side, countries which only have one type of commission of a crime. For these countries, the question does not make sense. Countries which differentiate between these two types of commissions - there are countries with statutory requirements and countries with discretion for the accomplice - one can say roughly that for about half of the countries in case of only aiding, there is a statutory requirement for lowering the sentence.

And if you're looking a bit at the practice, you can see that especially the aspect of aiding only is a reason for a considerable reduction of punishments.

With respect to the second aspect of modification which we asked ³⁸⁹ for - this is the guilty plea aspect - comparative research was also difficult due to the considerable differences between the countries and approaches towards plea bargaining. This is a perfect illustration on the methods of legal comparison, which I illustrated in the introduction. If we would have done this type of very traditional comparative research, comparing statutes, the question would have only been: Is there a discount for a guilty plea? And putting the question like that, many country reporters would have said, "No, because we don't have a guilty plea procedure. We do not have an adversarial question; we have an inquisitorial system and there is no guilty plea procedure, at least in the procedure code."

In order to avoid this result, we broadened the question. We did not compare and ask for guilty plea, but we also compared similar institutions and we asked for guilty pleas or confession. And if you're putting the question like that, using a type of case-based comparative research, because there is a common ground between confession and guilty plea, which means that in both cases the accused admits certain counts of the indictment. If you compare the question at stake in such a manner, the answer is quite different and the answer is that in most countries, a confession or a guilty plea has to be considered and leads to a reduction. Giving a detailed answer one would have to go very much in the detail. One would have to differentiate between systems with a guilty plea procedure, systems with a confession procedure only. There are also systems which in the procedural code do not have a guilty plea procedure but which install this guilty plea procedure in practice. And on the ³⁹⁰ other hand, you have consideration of confession.

But in general, one can say that in some countries it's mandatory, in some countries it's up to the discretion of the court, but in most countries confession is taken into account and leads to a reduction of the sentences, with the exception of cases when there is a mandatory statutory penalty, there it is clear that the Court cannot consider the confession against the law.

The reasons for this reduction are different. It is clear that, especially with confession, the reason of remorse and victim satisfaction is decisive. With respect to guilty plea, it's the aspect of economics of the crime, and this aspect is also considered in countries which have a confession. So the answer with respect to this question is quite clear: In most of the countries, guilty plea or confession is a reason for lowering the sentence.

This can be seen clearly also if one considers the general criteria for determining sentences. Here legal comparative research shows you a lot of different methods in the various countries. There are countries which have no rule on the general criteria for determining a sentence and leave everything to the discretion of the judge. In other countries, we have general regulations on criteria for determining sentences. Some countries have just a catalogue of aspects which have to be considered without saying whether it's aggravating the case or whether it makes it more lenient. In other countries, you have differentiated catalogues saying that certain aspects which are described in the law should be considered as aggravating and otherwise -- other aspects as ³⁹¹ mitigating. Finally, there are countries with detailed guidelines or methods giving the criteria for determining sentences. In general, one can differentiate between offence and offender-related circumstances. The major aspect in many countries is the aspect of guilt and the effect of the crimes. For more details, I would like to refer to the catalogues and the written report. As far as step 4 is concerned, concurrence of offences, in many countries there are regulations for a compound sentence by aggravating the highest penalty within the general maximum sentences range, as I have illustrated this, with respect to the territory of the former Socialist Federative Republic of Yugoslavia.

Most interesting, finally, is the question with respect to the execution of punishment, especially with respect to early release. There are different reasons for serving less than indicated in the decision of the court. There is probation; there is parole; there is amnesty. The most interesting aspect is early release after a certain time of the sentence done. The present table shows you for the various countries the minimum period which has to be served with respect to a certain penalty. And without comparing statistically, looking at these graphs indicates that in the majority of countries it is possible after half of the sentence over - in some countries two-thirds; in a few one-third - it is possible after that time to have consideration of the continuation of the sentence and to have the chance of early release.

As I told you, we could not conduct interviews in all of these countries within one week, so I cannot present you results on the ³⁹² empirical situation in these countries. I just can mention a few cases which prosecuted similar cases, especially prosecutions with respect to crimes in the territory of the former Socialist Federative Republic of Yugoslavia. These results are not due to a systematic research; it's just what has been reported to me when I asked for respective cases. The country reporter of Denmark mentioned a case sentenced in 1994 in the proceedings of Refik Saric. In this case, 14 counts of causing grievous bodily harm of a grave nature were sentenced by eight years. In Germany, you find quite a number of proceedings with respect to crimes committed in 1992 and 1993 in the territory of the former Socialist Federative Republic of Yugoslavia. In 1997, Nosilav Djajic was sentenced to five years for aiding war crime murder; in 1997, we have a sentencing of lifetime for genocide; in 1999, we have a sentencing of nine years for aiding genocide and committing war crime murder; and in 1999, there is a sentence for lifetime imprisonment with respect to genocide and war crimes murder. If you look at these few and -- sentences, it becomes clear what I said before, that a very decisive aspect for sentences is here in Germany, where we found it, whether the perpetrator only aided in the commission of the crime or whether he was dominating the act. So after having given you a picture with respect to the various territories which were under investigations, we can say that comparative law and comparative empirical research can give some guidance, especially with respect to equality and justice. However, I have to make the reservation that we had only a limited time for these studies. It is, in my eyes, a reliable pilot study, and it should be continued on a broader ^{393BLANK PAGE 394} basis. The study also showed that there is a broad discretion for the specifics of each case. For more details, I would like to refer to the written report, and I hope that the result of these findings will be of some help to the Court with respect to legality and justice. Thank you.

JUDGE SCHOMBURG: Thank you very much, Professor Sieber. Before I go into some details of your report, let me ask the following question: In your PowerPoint presentation, you provided us with numerous additional tables, pictures, picturegrams, which are not included in your report. Would it be possible that you make them available for the Tribunal and, of course, for the parties and the Bench? And what would the best solution be to do so?

A. Yes, I would be pleased to provide you with all the material. This could be done either on the spot by giving you the CD-ROM, which I have presented, or by giving you printed versions. I have a couple of them with me. I could also send it to you together with a combined version of my report. At the present, you have my report in a primarily -- primary version with an addendum, and I would be pleased to send it to you in a combined version all the material for distribution to the parties.

JUDGE SCHOMBURG: So I take it that in the CD-ROM and the combined report you have with you these tables of the PowerPoint presentation are not yet included, or are they?

A. The PowerPoint presentation is a separate database, which I can give to the Court on the spot here. The combined report is not yet produced. For that reason, I would like to ask permission of the Court to ³⁹⁵ produce this combined report and to send it to you.

JUDGE SCHOMBURG: When would it be available?

A. Since I am travelling next Saturday or Sunday, and I would like to have a look at this combined version, and especially if you would prefer to include one or two of these graphs, I could send it to you by mail on next Monday, when I'm back to my office. Monday or Tuesday.

JUDGE SCHOMBURG: The Bench will discuss how to proceed during the next break on this.

The graphs included in your PowerPoint presentation, you have them available in a printed format already today?

A. Yes.

JUDGE SCHOMBURG: If you could be so kind and provide it to the usher that we can later during the break discuss how to deal with them. Could the usher please be so kind.

A. And I think in case of printing it, I would like to give you the CD-ROM, because the quality of copies will be bad, due to technical reasons, the grey zones. So I would suggest for printing new versions, use the CD-ROM and not the copy machine.

[Trial Chamber confers]

JUDGE SCHOMBURG: Then it's -- I know it's not the correct order. First we should deal with the reports as such. But after having convened on this, these tables are hereby admitted into evidence. And may I ask Madam Registrar to attach exhibit numbers in the order but starting with a "J" as for "Judges Exhibits" Then, of course, copies of the CD-ROM will be made available for ³⁹⁶ the parties as well.

But let me now go to some remaining aspects of your report. Professor Sieber, would you call the principle of lex mitior as a rule of customary international law?

A. Yes, I would, based on my impression of the countries. However, I have to say that we did not make special questions for the country report, whether lex mitior is considered in the country or not. But based on my experience on comparative research, I would affirm it. If you want to have proved this by numbers of countries, we would have to extend the question to the country reporters. The question was not included. But based on my general knowledge, I would affirm it.

JUDGE SCHOMBURG: Thank you. And in -- as I understood you correctly, this rule would be applicable on the territory of the former the former Yugoslavia, especially in Bosnia and Herzegovina?

A. With respect to the territory on the former Socialist Federative Republic of Yugoslavia, this principle is contained in the Criminal Code of the republic of 1976 and 1977. It is mentioned in the written report. The same principle can be found in writing, I would say, in numerous of the other codes which I have mentioned. I assume that in all of the codes which are dealing with the general part of criminal law, it should be found.

JUDGE SCHOMBURG: Thank you. May I take this occasion to draw the attention of the parties to the fact that as the death penalty was discussed in your report as well, when applying this lex mitior rule, we have to be aware that Bosnia and Herzegovina has ratified "Protocol No. 13 ³⁹⁷ to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances", that is ETS number 187, of the 29th of July, 2003, and just recently the 1st of November, 2003, this entered into force; therefore, under all circumstances, especially in war crimes, death penalty is abolished in Bosnia and Herzegovina.

Emanating from your report, I have the following question: Is the impression correct that in numerous countries, be it now guilty plea or be it confession, a reduction depends on the gravity of the offence, that in some countries distinction is made between minor offences, where you can have a substantial reduction; whereas, it is not possible in relation to more serious offences?

A. I would put it as follows: If there are statutes with a mandatory punishment, a reduction is not possible due to the legal situation, because the law says that's the statute. If there are no other statutes according to which it can be reduced - and this depends now on the countries; in some countries you have discretion for reduction, and if there are no specific rules, it is not possible to go against the rule of a mandatory sentence. However, if there is no mandatory sentence, then it's up to the discretion of the judge to reduce the penalty. I do not know a legal system which expressly says in severe cases a guilty plea cannot be considered; in more lenient cases, it can be considered. Discretion is regulated by the general criteria, which say that sentencing should be governed by the gravity of the offence, by the guilt of the offender, and in these cases the judge has to balance these ³⁹⁸ criteria, the gravity of an offence on one hand side, and the guilty of the plea, including remorse, on the other hand side. Of course, the more serious the act is, the more dominating this aspect of gravity of the offence can be considered. But there are no specific rules on that which limit the discretion of the judge. It's just the consequence of these general criteria for sentencing, giving him the law and how to apply it.

JUDGE SCHOMBURG: May I in this context draw the attention of the parties to the report, where we have in fact different approaches. For example, in the United Kingdom - I think Mr. Morrison knows better than me - the report states that "In general, a discount of" - I don't like the word "discount" in this context - a credit, a reduction - "is granted of about 30 per cent." However, it seems not to be applicable for murder. Correct me if I'm wrong.

And the same seems to be true for Russia, where this is -- no credit will be given for serious crimes in Russia. The same seems to be true under the new Italian law, when we have a maximum penalty of more than two years; the same seems to be true for Canada, in cases of murder, if it's -- if we have a serious nature of this crime of murder. Therefore, well, once again this question: Can we find a general approach on the value of guilty plea and confession, especially related to serious crimes?

A. I do not have the specific country reports in front of me. As you read out of the country reports, this is an aspect which our country reporters brought to us, and with this respect I would confirm the information which is given there in the reports. ³⁹⁹

JUDGE SCHOMBURG: One other aspect I think needs to be highlighted. Our statute, as you in the beginning of your report correctly pointed out, refers to the sentencing practice in 1992 on the territory of the former Yugoslavia. Was it discussed in the framework of the reviews whether or not there, in fact, was a functioning judiciary that one can speak of, about a sentencing practice, especially related to war crimes in 1992?

A. With respect to war crimes, I would assume that there was no experience with the laws of 1976 and 1977. If you are looking in commentaries to the federal code of 1976 and 1977, there are hints indicating that these provisions do not play an important role in Yugoslavia. I read an introduction to a code book to this court which says, explaining in the introduction, "We have introduced these war crimes in the Criminal Code of 1976 due to our international obligations, especially the Geneva protocols," but they do not play a role in Yugoslavia. They are just written there. And this is an indication that at that time, when the code was drafted and until 1992, there is no big -- at least, no big use or even no use of these provisions. So I would say, with respect to 1992, there is definitely no broad judiciary with respect to war crimes, and this was the reason why we also focussed especially on the general crimes.

JUDGE SCHOMBURG: One aspect is war crime; another aspect is crime against humanity. Am I correct in assuming that in 1992 there was no such offence called crime against humanity that would cover all those offences we have now in our statute under Article 5? However, we had Article 141 ⁴⁰⁰ called "Crimes against humanity," but being limited de facto to genocide. Would this be a correct assumption?

A. Yes, this is correct. The old code of 1976/1977 did contain war crime and, as far as I remember, genocide, but definitely no crime in our terms against humanity, and the situation remained the same in all the subsequent amendments to the code. To my knowledge, with one exception which changed the situation, in 2003 the code of Bosnia and Herzegovina enacted by the Office of the High Representative now contains also crimes against humanity. This crime is punished in the same way as war crime and the cases of serious murder.

JUDGE SCHOMBURG: And this brings me to another aspect of the question of lex mitior. Would you agree that when some elements of crime have changed that we can apply for the situation in 1992 only the most lenient variation of the concrete offence?

A. Could you please repeat the question. I'm not sure whether I got it correctly.

JUDGE SCHOMBURG: As you highlighted, in 2003 the code of Bosnia and Herzegovina was changed and enacted by the Office of the High Representative and also contains crimes against humanity. Would it be correct from your academic point of view that it is not possible to take into account to the detriment of an accused this change of not only the name of the crime but also the elements of crime, that to this extent, of analogy, the rules of lex mitior have to be applied in the same way?

A. In my report, I -- following the questions, I was concentrating on the comparative aspect of the sentencing. We did not make, as I told ⁴⁰¹ already, a detailed investigation on the lex mitior principle, because I thought it's up to the Court to decide to this question. Nevertheless, the main question, with respect to lex mitior, let me say there are two aspects which have to be differentiated here: The first aspect is considering lex mitior, whether we should only refer to the situation in 1992 and 2003 or whether we should include all the acts between. That's a theoretical question, because it did not change too much. And the second aspect is the aspect that if we are considering these cases as normal cases, as murder, in 1992 the maximum term of imprisonment was 20 years. You had also the death penalty, which is not considered here. However, the question is now the death penalty could be changed in a prison sentence in 1992 of 20 years, and now the question arises how you consider the question in 1992. Do you limit yourself only to this term of imprisonment of 20 years - and that's the maximum term - or do you say we had the death penalty which we are changing now in a lifetime imprisonment? And if we're doing that, with respect to the situation in 1992, replacing the death penalty by a sentence of lifetime, the 45 years, which are provided in the code of 2003, are more lenient. This is a question which you'll have here.

This question, as well as the question you put, is of course related to the fact when there -- how strictly the Court here is bound to the lex mitior principle. The Court in its Statute has the possibility for a sentence for the rest of the life of the accused. And considering the situation on the former territory of Yugoslavia, this is only one aspect which has to be applied. So the question is: How formally lex ⁴⁰² mitior is handled here. If the question would be put by a court in Bosnia and Herzegovina, lex mitior would have to be considered in a very strict sense with nullum crimen and all the aspects. If -- considering this situation in the courts of the former Yugoslavia is only one aspect considering, for me the question applies how strict lex mitior has to be considered.

JUDGE SCHOMBURG: Thank you. Let me now turn to another aspect enshrined in your report, in the country reports especially, in how far to take into account cooperation with the Prosecution. And then, first, who has to assess this? I want to draw the attention of the parties on the Austrian law, Article 41(A), and has the court the duty to express the reasons for a better understanding why substantial cooperation is deemed as a substantial mitigating factor.

A. We did not make a -- express a question with respect to this aspect, so we are depending on the results of the country reports, which you have rightly stated. However, we could not say that for a majority of countries we have investigated these questions. So I just have to refer to the country reports, which are handed over to the Court, including the aspect that it is the Court who has to decide about the sentencing range.

JUDGE SCHOMBURG: My final question would be: You gave us an overview of five cases where cases of former Yugoslavia were decided, Denmark and Germany. Is it correct that due to the short time available for you, you couldn't cover all the cases decided in the countries of the Council of Europe, and even not the cases decided in Denmark, Switzerland, Germany? For example, in Germany, I think it's in the public domain that ⁴⁰³ there are far more cases that have been decided but, unfortunately, never been published because the Bundesgerichtshof of the Federal Supreme Court decided that the appeal was evidential unfounded and, therefore, gave no reasons and these decisions were not published. That is only a very short but not comprehensive overview.

A. Yes, it -- this part does not result to a systematic search of the various countries, including computer databases of legal records. It is just based on the personal knowledge of the country reporters, on their experience, especially in the context of other projects of the Max Planck Institute, which is investigating international criminal law, and with respect to these previous studies, some of the collaborators were mentioning these cases.

I think that due to the experience of the collaborators, it's a quite good picture of published cases, but it's definitely not a complete, representative research based on solid empirical research methods. We did not have the time to go in this during this first week of analysing the cases.

JUDGE SCHOMBURG: Thank you very much. We need now make a break. And the trial stays, therefore, adjourned until twenty minutes past 12.00.

--- Recess taken at 12.08 p.m.

--- On resuming at 12.23 p.m.

JUDGE SCHOMBURG: Please be seated. Finally, I have just one technical question. It's the intention, of course, after having heard the parties on this, later to admit the ⁴⁰⁴ report into evidence. However, there is a problem, that the country reports in part are provided in German only. My question would be: You suggested that it would be appropriate that you would send on Monday the full updated report to the Tribunal. Would it be possible either to have these German parts translated or to have a summary of these parts which are available only in German for us until now?

Q. With respect to the country reports, I have considered them as a means of working basis for my results, similar to books and literature. And for me the question was whether these primarily working bases should be presented to the Court. I decided yes, in order to lay open the method of work we did and to show the basis of our work, we did not translate it in English, since we did not consider it as, let's say, the result of the report. That's the reason why you have it just in German. And for us it was not possible within this short period of time to translate all these working materials in English.

Now, with respect to further translation, since a big majority of these working materials are in German, I doubt whether it would be possible to translate it until next Monday, especially considering the fact that the collaborators have worked the last weekends in these things and I could not provide a translation until Monday. However, what might be a solution is that specific aspects which, following the sentencing hearing, are interesting for your decision might be incorporated in more detail within the report or, but not depending, on the length of time we have, certain sections of the country reports which are still in German be translated. This could be especially for the case with respect to your ⁴⁰⁵ question concerning the role of confession and guilty plea. As you saw, I was hesitant to give an answer about the majority of countries saying so-and-so without having consulted all the country reports, with special respect to this question. Considering the responsibility here, I think that answers should be given after specific considering of these aspects in the country reports.

So what might be possible would be, depending on the length of time we have, to add some kind of summarising information with respect to the questions you had posed to the general report, or if the Court would be interested in a specific section, maybe to translate the chapters on confessional and plea bargaining, which seem to be relevant. This could be done in a shorter time.

So the answer to your question would really depend to the length of time which we have to present either some summarising remarks or parts of the country reports or all of the country reports. The latter would be a considerable workload of translation, which would require some time.

JUDGE SCHOMBURG: Thank you for this clarification. We have to hear the parties on this, and then to find the most appropriate solution. However, it seems from the outset not to be appropriate to postpone the decision for the mere purpose of translating some documents being in the public domain and in part being available over the Internet. But as this can be discussed later, this is not the appropriate point in time. May I ask my colleagues, do you have any questions? Judge Mumba? Judge Agius, please.

JUDGE AGIUS: Yes. Professor Sieber, first of all, I thank you for ⁴⁰⁶ your report, which is very detailed and very informative. I have very few questions for you.

Reading through your report and also through your addendum, I notice that the sentencing ranges change dramatically or radically between 1977 and 1992, making it evident that in 1992 for the standard crimes that you mention or that you apply in your report, it seems to me that the ranges -- that the maximum that could be inflicted in the various republics of the former Yugoslavia was less than what it was earlier on in 1977. Is that a right conclusion that I am reaching or not?

A. Comparing the sentences ranges between 1992, based on the legal situation of 1976 and 1977, with today's situation, depends heavily on what you compare. If you compare only the terms of imprisonment, it becomes clear that the situation was aggravating. The maximum prison sentence in 1977 and consequently also in 1992 was only 20 years. Today in the Republika Srpska it's lifetime; or in the Federation of Bosnia and Herzegovina, and similarly, with respect to the whole territory and the code of the Office of the High Representative, it's even 45 years. So an isolated comparison between terms of imprisonment between 1992 and today would show that it went higher. However, this isolated comparison would neglect the fact that in 1992 there was also the death penalty. So if you include this possibility of death penalty in the comparison, you have to say that from 1992 until today the punishments, at least from a normative viewpoint, became more lenient.

JUDGE AGIUS: Okay. Reading through your report also, particularly I refer you to the pages 56 to 62, it seems to me that there is a marked ⁴⁰⁷ difference in the way that these crimes were treated for purposes of punishment between Macedonia and the rest of the republics. Could you or did any of the researchers identify any particular reason for this divergence in treatment of the offences?

A. No, we could not. And the main reason is that our database, with respect for a comparison between the situation in the various republics, is too small. We just had interviewed in each of the republics three judges. And with respect to method of research with a database of, as we call it, N of only 3, a comparison between these groups is not possible. So the data which we have would not justify saying that Macedonia, the judges are sentencing much higher, because we only have three judges. That's the reason why any kind of statistical evaluation I made only with respect to the whole sample of interviewed judges.

If you look to all interview judges, we have 17 judges. This is not a lot. And I'm hesitant even with respect to the 17 judges to make an analysis and say there is an average or something. But with respect to the fact that we have a kind of pilot study, I dared to make such -- to present such results. However, if we are going down now to the small entities, with only two or three interviewed persons, I would not confirm with solid research method the fact that sentences in Macedonia are much higher. It could have been the fact that we just met three judges which are very severe.

JUDGE AGIUS: But basing -- again, basing yourselves on the research study that was conducted, and looking at the tables in page 63 of the report, which shows the overall punishment, take -- these crimes taken ⁴⁰⁸ separately or combined, what difference would your conclusions have, or show, if Macedonia was to be left out of the study or the conclusions reached after the interview of the Macedonian judges completely ignored or left out? Would there be a significant decrease in the overall punishment that you show or that you see on page 63 of your report?

A. The results of Macedonia had an effect in the table which I gave you representing a kind of average of the judges. When I said if you're building the average of the judges, we would have for combined offences -- I think it was 36 years or something. It is clear that this number would go down if we leave out the Macedonian judges. And indeed, it is a acknowledged method of research that in a sample for an evaluation you ignore the most extreme positions and make an analysis of the kind of middle position. So with respect to research method, it would be possible to omit the highest result; if we do this, maybe we should omit also the lowest result, and concentrate on a kind of typical sentence to avoid extremely lenient or extremely severe judges. But it's right what you say; if we omit the Macedonian judge, it's going down.

JUDGE AGIUS: All right. And my final question to you: I know that you interviewed only 17 judges, but in the course of the trials that we preside over here, we have come across several judges that were themselves -- themselves victims of this discrimination or victimisation in the course of the war or the conflict that took place in the territory of the ex-Yugoslavia in different manners and to different extents. The same applies to their property sometimes and immediate members of their family or even friends. ⁴⁰⁹ In conducting your research, were any of the judges or were the judges interviewed asked or was any inquiry made to establish whether any of them or -- had been themselves a victim of -- of the conflict or had suffered any discrimination or had any members of their family killed or tortured or raped?

A. No, Your Honour, we did not ask this question. With respect of data of the judges, we have asked for the age, for the ethnicity, for the religious beliefs, but no more. I think if we would have asked this, especially at the beginning of the interviews, we would have come to a road which we'd wanted to expressly avoid. Even the question of religious belief or ethnicity, which was put at the beginning of the interview, made the judges a little uncomfortable at the beginning. So that's what I mean with the reason of a pilot study. If this would be the pilot study, and I would have to do the research again, I would put even these questions on ethnic belief and religion at the end of the interview in order to avoid any bias and personal experience.

However, with respect to your question, one information might be -- or two informations might be interesting: We were very well aware of the danger that personal experience would influence the interviews. And for that reason, I've structured the questionnaire in a way that the whole interview process was looking like an ordinary research and not a research in war crimes. If you look at the questions and the order they are posed, we are starting - and we said it's a Max Planck Institute research with general normative questions, no referral to the war problems - then we asked for evaluation of ordinary cases, courtroom ⁴¹⁰ experience, murder, rape. There was no context in the interview with respect to the war. And only at the end we turned to this question. By doing this, we tried to avoid any influence of personal experience. However, in order to give you the full picture, I have to add one more information.

When we wanted to conduct the interviews, we needed permission of the administration, especially of the presidents of the court. And in this process, we have been asked, I would say even forced, to lay open the interviews. When the presidents of the courts gave us permission, they wanted to know what are you doing and what questions are you putting? Can we see the interview? And we had no other chance than to lay open the interview. So it might have happened that the president of the court has given the whole interview to the judges and that they may have known at the beginning of the interviews that at the end there will be some questions referring to the war. But even if this would have been happened, the overall picture of the questionnaire was not aiming at specifics of war crimes or crimes against humanity. This was just part. So I still think that the results are not biassed by such -- by such feelings, and I have especially asked the person who was dealing with -- with the interviews, "Do you think there was a bias on personal experience or something?" And the clear answer was, "No, it was neutral." There was -- there was only one judge who said when we asked him about crimes against humanity - and he understood it as war crimes included - he gave the answer, when we asked him, "Yes, in war times, we would have to consider the fact that it was a --" I think he said of a "defence war" or ⁴¹¹ something. So the war was taken even as a mitigating factor.

JUDGE AGIUS: Okay.

A. Which is interesting. However, I have to tell, this was just one judge out of 17 where we found an incident that he was influenced by the history. However, strange enough, it might have been even in the other direction.

JUDGE AGIUS: Yes. And the final question arising from your answer, because actually I didn't have any further questions for you: What was the criterion or criteria that you used in identifying or selecting the 17 judges? That's number one.

Number two: Apart -- leaving apart the judges from Serbia, where you did not encounter that -- where you did not have the cooperation that you expected, in the other republics did you try to interview more judges than the 17 that you actually interviewed? And if you did and were not successful, why is that so? Was it because they refused to cooperate? Was it for time reasons, technical reasons, refusal, or whatever?

A. Your first question, Your Honour, concerns the criteria how we elected the judges. The criteria was first to have a certain representative sample of the whole country, and that's why we said, "Let's try to have about the same number of each region." In one territory we had two samples; this was the country with which we started for a small kind of pilot study. Because you're interviewing people and you realise that your questions are not ideally suited. So we did a first small pilot study in -- in one territory and this result affects that here you have the two parts of Slovenia. But the criteria was to be representative and ⁴¹² not to have one republic dominating.

The second criteria which we tried to meet was to find judges with experience on these types of crimes. So first instance judges for serious crimes, because there would have been no sense if we would have come to a judge who is usually dealing with traffic offences or something, so we tried to find these judges. These were the two main criteria. With respect to your second question, the number, we tried to interview as many judges as was possible in the time given. And as I had explained to you, the time given was defined by the overall range of our study. If you have three weeks all together, you reserve under one -- one week for sending the report and printing, you have one week for analysing the results of the country reports and of the interview process, so the time which you have to find judges, to get permission, and to interview the judges was just one week. So it was extremely short time to find judges. We had to find contact persons, who is going to interview the judges. We had very serious requirement for these -- for these people who are interviewing the judges. We tried to have lawyers or people with a -- with experience in -- in empirical work to do.

So if I would go further in detail, the time of our contact persons in the regions, we relied on previous studies to find judges, to get the permission, and to interview them, narrowed down to maybe two or three days. And considering those picture, I'm still very happy that we found even 17 judges, but it was not possible to get more. I tried to -- to make the sample a bit bigger by telling them if there are coming results later, we try to incorporate it. But the persons which we had in ⁴¹³ place, our contact persons, told us it's not possible to interview more and to transcribe the results of all these interviews, we have to consider this also. The interviewers had to give us a report about the atmosphere, about the answers. This had to be in some cases translated to English. They said it's impossible to get more judges within this time given. So for that reason, I'm talking about a pilot study. This study can give you some indication, but definitely it -- it's not a sample where you can do analysis, especially based on the various republics.

JUDGE AGIUS: I thank you, Dr. Sieber.

JUDGE SCHOMBURG: Just one final question related to the normative part of your research: I think you already touched in part on this issue, but did you find at any point in time between 1977 and 2003 a statutory provision on a -- the impact of a guilty plea or confession in a country on the territory of the former Yugoslavia?

A. With respect to the territory of the former Yugoslavia, I did not find -- or more precisely, I cannot remember, to the best of my knowledge, to have found such a provision. The only place where something on this issue could be found are the provisions on the general criteria on sentencing, where you might have some -- in this general criteria which you find in the report, where you could bring the aspect of the confession under -- under a general aspect of behaviour of the offender or something. So we -- we could go through all these provisions, which are quite similar, and put the question: Are there criteria under which we can bring it? And definitely there are criteria, and -- as can be seen, the judges have done this also, giving some explanations with respect to ⁴¹⁴ remorse or economics of the proceedings. But no specific provisions.

JUDGE SCHOMBURG: Thank you very much. This concludes the line of questions by the Judges. It's now for the Prosecution.

MR. YAPA: I thank Your Honours. My questions, if at all, to the learned professor will be -- will be very limited, because of the material that has to be studied further. But it is my position that if Your Honours permit, maybe we could file by way of observations in respect of the report, by way of written submissions in time to come. But I will ask a few questions of the learned professor at this stage. Some of the questions that I intended to ask, with great respect, have been asked by Your Honours in respect of certain criteria that have been used by the learned professor to make this study.

Questioned by Mr. Yapa:

Q. Dr. Sieber, I would like to ask you one general question: There was a tendency on your part in answering the questions -- or I saw, rather, a hesitancy on your part to answer certain questions, and I felt that it was more due to the time constraints that you had and the paucity of material that you had to make the study. Am I correct in saying that?

A. Yes, of course it is. It is the time constraint for the whole study. Then, in addition, it is the focus of the study. Some of the questions presented concerned very specific points which were not systematically analysed by a specific question, either put to the country reporters or to the interviewed person, and I think it would not be ⁴¹⁵ responsible, from my side of the view, to answer a question just according to the memory and saying a high number of countries did so and so just from my impression of going through the country reports. For that reason, if such questions are put which we have not yet specifically analysed in all country reports in a responsible way, which means going in each country reports, and if it's a question which was not put to the country reporters, going back to the country reporters -- because you see, maybe one country reporter found this aspect interesting; another one did not find it interesting -- the high reliance can only be guaranteed with respect to questions which are expressly asked. So with these reservations, this explains my tendency to be careful and to say with specific questions which were not in the original scheduling order to give you quantitative answers on a high number or majority of numbers to like that and like that. This was the reason.

Q. Thank you, Dr. Sieber. Now, can I -- can I get to the specimen questions or the model questions that you asked of the judges, of judges whom you interviewed. In framing those questions, did you have in mind a particular case or the indictment in this case?

A. Of course we had in mind this particular case because the aim of the request of the Court was to assist the Court in evaluating that case, and for that reason we tried to build our model cases as close as possible to that case. Building the model cases, we had to differentiate. As I explained, with respect to the country reporters we could build the model cases very closely to the plea of guilty which we have. In the plea of ⁴¹⁶ guilty, facts are admitted. And of course, we could give detailed cases about these facts. And you see this if you look in the questionnaires, that the model cases for the normative research of the country reporters are very detailed. You have, of these four typical case, mostly two variations which we found in the indictment, so that's why this is very detailed. On the other hand, we had to deal with judges and -- and that is just my experience with interviewing judges. I did quite a number of studies in the last 10 or 20 years in which we interview judges; judges always have a shortage of time, so we could not give them four model cases with two variations in a very complicated way. So -- we still tried to address the situation of this court here, but as you see, the model cases were very short. But still they were -- we tried to be as close as possible under the given circumstances to the facts which are contained in the guilty plea referring to the indictment here.

Q. Thank you, Dr. Sieber. Now, the other question that I would like to ask you, something that you were particular in stressing in giving your answers: You said that this was a pilot study, this is a pilot study. Now, do you see any drawbacks in a pilot study and a pilot report at the end of it that you produce?

A. This question concerns the aspects when do you call the study a pilot study or a final one.

Q. That's right.

A. Usually our experience with empirical research is that when you are drawing up, for example, a questionnaire, you cannot imagine how this questionnaire is understood by the interviewed person. And if you are ⁴¹⁷ doing a couple of interviews, you realise that you should change your question, that you should amend some questions. And this is the reason why usually doing such empirical study you first make the pilot study and then you sit together with your collaborators and say, "What shall we change? Where did you have misunderstandings?" And then the people in the field tell you, for example, "The questions on religious beliefs made the judges uncomfortable." So you said, "Put it in the end." On other case, people say, if you're asking for crimes against humanity, the judges are answering in cases of war crimes. So the direction would be next time we ask more precisely. And all these possible corrections could not really have to be done within the study.

As I told you, we made a series of two or three interviews on the one, and we heard the reaction of the interviewers, and we reacted to that, so you could say this is the pilot study and this is the final study. However, having just two or three interviews and having one day to change your question is not what usually, under ordinary circumstances, I would call would be a solid pilot study. So the term "pilot study," I would like to indicate that the results of our study should be very carefully taken into account. The sample is not enough; the time of length is not enough.

I just want to illustrate, giving average numbers or something gives you some guidance, but this should be taken as it is. It's on a very fast basis which you have to consider.

Q. You may have studied the --

THE INTERPRETER: Microphone, please. ⁴¹⁸

MR. YAPA: I'm sorry.

Q. Dr. Sieber, you may have seen in the Statute and the Rules of Procedures and Evidence that there are certain guidelines provided for in respect of sentencing. Now, did you think of or did you correlate those guidelines to the inquiry that you are making?

A. No, we did not do it, since the questions which were put to us primarily concerned the situation on the territory of the former Yugoslavia and in other countries. And I was careful to restrict myself to the questions which were put to me and to leave it open to the Judges to decide the questions with respect to the ICTY Statute. So we wanted not to take the role which, in my opinion, the Judges do have. So I would like to say that the assistance which I can give to the Court concerns primarily the comparative research. I can tell you - and that was my task; and that we tried to do with due diligence - what's the situation in these countries. The consequences of drawing up of these results, I think this is up to the Court and an expert witness should not try to take this role. So it was kind of modesty, not to try to go into the role which, in my opinion, is not the role of the expert witness for comparative law.

Q. Thank you, Dr. Sieber.

MR. YAPA: That would conclude my questions, Your Honour. But after a further study of the report -- comprehensive combined report -- that the learned professor would submit, I would seek Your Honours' permission to seek written submissions on those. Thank you.

JUDGE SCHOMBURG: This was already granted to the parties in the ⁴¹⁹ beginning, and the deadline was as I indicated, 24 November 2003, 12.00. May I ask, are there questions by the Defence? Please, Mr. Morrison.

MR. MORRISON: I'm grateful. Questioned by Mr. Morrison:

Q. Professor Sieber, first and foremost, thank you for such a powerful piece of research in such a short period of time. None of us were expecting, I think, such a scholarly document within the time frame that you were allocated. That has both benefits and drawback, of course. The benefits are that we see such an amount of material; the drawbacks are that we have such an amount of material, in order to deal with it. I therefore, because we have the opportunity to pose submissions based upon your report in full -- there are only a few matters which I think it is necessary to ask you now.

We are agreed, are we not, that there is no such creature as customary international law on sentencing; is that correct?

A. The scope of my report goes to describe the situation in the different countries.

Q. Yes.

A. Whether you want to put up the result of the study and turn it into a role of customary international law was not the task of the report. So I would say it's the task of the Court to decide the question whether there is a customary rule of law on the basis of these facts.

Q. But that would be dangerous on the basis of a pilot study, would it not? Much more dangerous than on a study if, for instance, had taken 6 ⁴²⁰ months to 12 months, the time you predicated you would like for a full-blooded analysis?

A. I have used the term - and I have to clarify that - "pilot study" primarily with respect to the empirical research, where you're using this term of a pilot study. And the reservations which I made, with respect to - we have to tell this - the very high standards of research the Max Planck Institute is applying are valid for this empirical research, which under ordinary circumstances we would do on a longer basis. The term "pilot study" does not have such relevance with respect to the normative side of our question. I think with respect to the country reports, this was done in a very, very solid way. I would not respect very different answers. With more time, of course you could include much more countries. We have 23 for your basis. You could also include answering specific questions as which were put to me and where I said on this basis I do not want to give you a decisive answer. But I think as far as the express questions were concerned, which we answered and which we put to our country reporters, the results are quite reliable. Nevertheless, it's up to the Court to evaluate whether this is a sufficient basis for putting up a rule of customary international law or not.

Q. Whatever the determination of the Court as to that, I understand that it's your view, as a jurist, that lex mitior, the principle of lex mitior, is a principle that's found its way into customary law.

A. Yes. Clearly, yes. We have especially the principle of nullum crimen, which is a starting point for our evaluation. This is considered ⁴²¹ by international instruments and most of the laws, and similarly lex mitior, according to my evaluation, is a general principle in most of our legal orders. But this statement is not based on a quantitative comparison of the countries because the question of the Court, which was in the scheduling order, did not expressly for this principle. However, should we have put this question to our country reporters, I assume that a very clear majority of the country reporters would have come out with the result that lex mitior is applicable.

Q. Now, whether or not there are reductions in sentence in national jurisdictions, we know that it is now enshrined in the jurisprudence of this Tribunal that a plea of guilty and other matters are taken into consideration as mitigating factors. Would you agree that one overriding peculiarity - and I don't mean that in a derogative sense - one overriding peculiarity of the jurisprudence of the ad hoc Tribunals, both this Tribunal and the Rwanda Tribunal, is it necessity to take into account the process of reconciliation and rehabilitation, in terms of the two societies at which were most affected by the crimes for which they have been set up to deal with?

A. Yeah. Again, I think this is a question with respect to international law applied by this Court which was not the aim of our study.

Q. Okay.

A. If -- I would like to answer to your study, I just would refer to the general criteria which we have studied for sentencing, and out of these criteria, of course it derives that the behaviour of the accused ⁴²² after committing the acts should be considered, including the question of confession and plea bargaining.

Q. For myself, I find it difficult to distinguish between pleading guilty and confessing, but leaving that aside, the reason I put it in the way that I did, this question of reconciliation, is because by looking at the countries which you looked at and by dealing with the norms of sentencing that you've dealt with, reconciliation, which is part of the mandate of this Tribunal, wasn't part of the mandate of any of the countries that you looked at; is that correct?

A. I doubt -- I think we have included a number of countries with kind of comparable situations. For example, South Africa, with the Committees of Truth, is an example of which reconciliation played a big role. And also, with respect to South America, I think, we have a number of countries with similar situation as in ex-Yugoslavia. And this was done on purpose, to see whether there is experience; also with respect to pardons and early release and things. We wanted to include all of these aspects.

Q. But of course, to take the example that you took, South Africa, the Truth and Reconciliation Commissions in South Africa are separate from the national court systems. They are specifically set up not to deal with cases as a conventional court would deal with them but purely for the purposes of reconciliation.

A. Yeah, this is right. But if you are addressing the question which was put to us by the Court, I think - and for the benefit of the accused, we should also include all these approaches, which are in a narrow sense ⁴²³ beyond the scope of what the court is doing there. For that reason, we also ask for questions of amnesties and similar things.

Q. Please forgive me if I'm taking you somewhat outside the ambit of your report, but you're the only professor of law we've got at the moment. And I'm taking the advantage.

When it comes to the sentences that were given to you by the judge, they were first-instance sentences, not appellate sentences; is that correct?

A. This is correct, to the best of my knowledge.

Q. And you deal with the caveats as to the judges on page 23 of the main body of the report. I needn't go into it now, because I'll have the opportunity to do so in submission later on. But you actually say there what you've already said in answer to my learned friend's questions about -- and indeed the questions from the Bench about the potential difficulties with the interviews the judges had. I won't go into that, save to say this: If it was the case that the judges had had a preview of the questions they were going to be asked, then there is, of course, always a danger of an answer being given to satisfy the question; in other words, preparation.

A. It's hard to judge whether the judges were prepared or they were not prepared. So I --

Q. Well, that's -- yes.

A. I cannot really judge whether the president of the court gave the questionnaire to the judges. However, what is clear is that the judges did not have a lot of time for preparation. In most cases, we got the ⁴²⁴ permission on one day, and the next day our interview partners were there at the court. So the time for preparation was very short, and again, if you look at the questionnaire, it looks like a questionnaire for a study which is not specifically dealing with the question of crimes against humanity and war crimes. They come to the end. They do not play a dominant role. But the majority of questions are general questions. I do not think that the judges had in mind that it is a specific statute for the ICTY. I even instructed my collaborators not to tell the interviewers the purpose of this study, in order that -- to avoid that this knowledge is spreading. So I think the perception of the judges was it's a general study.

I might mention one additional item. In one entity, at the time of the interview process, there was an evaluation of judges with respect to the question whether they should continue their job or not. And it might have been the case that the judges thought the questions are for this process, something like that.

Q. The final point on the judges: They were dealing, it must be presumed, with the existing law and maximum sentences available to them. Is that a fair assumption?

A. As I have explained, we put both questions. We started with the actual law, because this was more -- this was easier for the judge to answer. And also, with respect to the dramaturgy of the cases, if you're conducting interviews, you try to have a good atmosphere -- working atmosphere with the judges. So if you start in such a process with very difficult questions, they're getting angry or they're getting closed and ⁴²⁵ you have to stop your interviews. This was the reason why we started with the more simple questions, general criteria in the law, personal courtroom experience, and then the actual situation today. However, then we put the question: How would you have sentenced this case in 1992? So they were asked both questions. And as I told you, the answer was in general, we would have exactly done the same answers to you. We are not -- and this meant we are not influenced by the events of war. Only one judge referred to the fact that is the statutes were different at that time.

Q. Yes. And that's -- that's what I mean; that must be a worry. It may well be that the judges thought that the question was really a political question in a sense of, you know, would it have made any difference to your reasoning rather than was the law any different?

A. This is possible with respect to this question. I think at this point the judges got a little bit uncomfortable, because they had the feeling the interview now could go in this direction. And I have transcripts in the interview where the interviewer said -- he got a bit uncomfortable and maybe he had the feeling that the question presumed that he would be influenced by -- by political aspects. Nevertheless, and the transcripts in principle then, the interviewer said that it was no problem to conduct the interview, to forget this point, and to go back to the -- to work again on a neutral atmosphere.

Q. Yes. But, of course, if the judges weren't considering the actual law applicable in 1992 and were simply considering, as it were, their ethnic neutrality, that distorts the data, does it not?

A. The question whether this distorts the data only concerns the ⁴²⁶ question distortion of data in 1992. So it does not distort the data for 2003. And with respect to the year 1992, I would say it distorts the data only if you assume that the legal situation would have been different there.

Q. Yes. But as far as the principle of lex mitior is concerned, that's an important distinction, is it not?

A. Of course, with respect to lex mitior, the question is important, whether the legal basis was more severe in 1992. And as I have explained, the answer to this question depends whether you only compare on an isolated basis the prison sentences or, in this sense, the situation in 2003 would be more severe - or if you include the aspect that in 1992, at least in the book, the death penalty was still applicable.

Q. The danger, of course, of the death penalty is that that takes us completely outside the sentencing scope of this Tribunal and indeed in itself may distort the data, because one cannot equate, however one tries hard, imprisonment with the death penalty. It's simply -- it's not comparing like with like. That's not a question, because I -- it's an observation, which you may or may not agree with.

The other thing -- the other problem with the -- of course with the judges' determination, as far as this case is concerned, they of course didn't have the personal mitigating circumstances of the defendant in mind. That must be the case, must it not?

A. As I have told, the model cases could not give a full picture of the case, and the judges also said -- told this. They said it's difficult to judge on such a small basis without having the mitigating cases and the ⁴²⁷ aggravating cases. So both aspects were not taken into account. And this is the reason why I said this questioning of the judges is only giving a direction. They were not evaluating this case here, we are quite clear; they were evaluating a case which was similar to this.

Q. It was a hypothesis. One part of the hypothesis, I simply want to make clear though, was it your understanding when the hypothesis was put to the judges that they were dealing with someone who was the overall commander of a example, in other words, the ranking officer in charge of the camp and superior to all other people in the camp, or were they considering someone who had command responsibility as a guard shift commander?

A. The model case which we used, to the best of my knowledge, was framed in the term that it was, I think, "a commander of a prison camp," so that he had a certain responsibility but he was not "the commander."

Q. All right. So he wasn't the overall ranking officer in -- the supreme, as it were, commander of the camp, but he had take Q an element of command responsibility.

A. Of course, if you phrase the question that he was "a commander," it makes clear that there is a certain superior position of him and that he's not only a guard of the prisoner camp.

Q. Professor, I'd love the opportunity to go on all day, but I'm not going to have it. Thank you very much.

JUDGE SCHOMBURG: Are there any other questions? This is not the case.

Professor Sieber, we all have to thank you and the entire ⁴²⁸ Max Planck Institute, all the people working very hard on this expertise, especially under these prevailing circumstances in the very short time frame, because also we are under the obligation to work as expeditious as possible, and it, unfortunately, -- the Rules of Criminal Procedure do not allow for a expertise taking six months or one year. This would be to the detriment of an accused who has the right to have heard his case in due time.

So once again, thank you very much. We will deal with the admission into evidence immediately. However, we take it that you will send a final version to the Registrar of this Tribunal by Monday so that we, in all likelihood, have it available by Tuesday next week. Once again, thank you very much and I also extend these thanks to your collaborators in Freiburg, and have a safe trip home. Thank you very much.

THE WITNESS: Thank you very much.

JUDGE SCHOMBURG: May I ask the usher to escort Professor Sieber out of the courtroom.

It's the intention to admit to report into evidence in those parts that are in a language or in one of the working languages of this Tribunal; therefore, with the exception of those parts who are for the time being only available in German, we have to discuss later whether or not it's to the benefit of this case to translate some parts. But we can leave this open. For the time being, we can only decide on the admission of the English parts of the report, and the attachment the country reports, and this would be then later be replaced by the report to be ⁴²⁹ expected next Tuesday. Are there any objections to this proceeding? This is not the case. Therefore, this report is admitted into evidence.

[The witness withdrew]

JUDGE SCHOMBURG: And may I ask Madam Registrar tomorrow to give us the exact exhibit numbers that there is no doubt remaining which exhibit number is adduced to both the report and then the pictograms, pictures and overviews of the PowerPoint presentation. But this can be done tomorrow.

We will continue tomorrow immediately with the final questions by the Defence to Dr. Grosselfinger. I take it that you have, as proposed, a written -- a number of written questions.

MR. MORRISON: Your Honour, there are five questions which I've posed which it was only fair to pose in advance, in case they needed to be answered with research into supplementary documents. There will, of necessity, be a number of other questions which could be asked just on the report itself, simply by way of expansion and clarification, that won't require research. And I shall make sure that Dr. Grosselfinger, who I see is in the public gallery, will have those questions before she leaves today.

JUDGE SCHOMBURG: Thank you. Can I take it that it will allow us to conclude the hearing tomorrow, when taking into account the limited number of your questions to Dr. Grosselfinger and then having, say, 90 minutes for each party for the concluding remarks and then, say, 10 minutes if the accused so wants for the final word. And then it's still for you to decide whether or not you ⁴³⁰ want to give your client either the opportunity of giving a statement or calling him as a witness. Can we get already today an answer to this that we know beforehand whether or not we can conclude tomorrow?

MR. MORRISON: Well, from the Defence point of view, I see no reason why we shouldn't be able to conclude the hearing tomorrow, taking into account the time estimates that Your Honour has -- or limitations that Your Honour has enunciated.

As far as the defendant is concerned, it is his intention to give testimony limited to the issue of remorse, as was, I think, discussed in a previous Rule 65 ter meeting, and the opportunity for him to make a final statement, which would be a statement, as opposed to testimony, is likely to be taken, and it will be well within the time frame that Your Honour has anticipated.

JUDGE SCHOMBURG: Thank you.

MR. YAPA: So far as the Prosecution goes, I don't think there will be any difficulty in keeping to what Your Honour has in mind, to conclude the proceedings by the end of the day tomorrow.

JUDGE SCHOMBURG: Let's try to do our very best and focus on the serious and the main issues of this case.

And this concludes today's hearing. The trial stays adjourned until tomorrow morning at 9.00. Thank you.

--- Whereupon the hearing adjourned at 1.32 p.m. to be reconvened on Thursday, the 6th day of

November, 2003, at 9.00 a.m.