Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 28 October 2003

 2                           [Sentencing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.02 p.m.

 6             JUDGE ROBINSON:  Will the Registrar call the case, please.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 8     number IT-02-65/1-S, the Prosecutor versus Predrag Banovic.

 9             JUDGE ROBINSON:  And may we have the appearances.

10             MS. CHANA:  May it please, Your Honours.  Sureta Chana for the

11     Prosecution, assisted by case manager Ruth Karper.

12             JUDGE ROBINSON:  Thank you.

13             MR. BABIC: [Interpretation] I am Jovan Babic, attorney-at-law

14     from Novi Sad.  I'm representing the accused Banovic Predrag.

15             JUDGE ROBINSON:  Thank you, Mr. Babic.

16             This hearing is for the Trial Chamber to deliver the sentencing

17     judgement in this case.  What follows is a summary of the written

18     judgement and forms no part of it.  The written judgement will be made

19     available to the parties and to the public at the end of this hearing.

20             At a hearing held on June 26, 2003, the accused pleaded guilty to

21     Count 1 of the Consolidated Indictment, persecutions, a crime against

22     humanity, punishable under Articles 5(h) and 7(1) of the Statute of the

23     Tribunal.  The Accused's plea was made pursuant to a Plea Agreement

24     between the parties dated 5 June 2003.  In the agreement, the Prosecutor

25     agreed that, following the plea of guilty and conviction, it would seek

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 1     leave to withdraw, with prejudice, all other counts, criminal

 2     responsibility, and allegations against the accused not set out in the

 3     Plea Agreement.  The Trial Chamber has accordingly dismissed all other

 4     counts against the Accused as well as criminal responsibility for the

 5     acts of others as pleaded in the Indictment.

 6             A sentencing hearing in this matter was held on 3 September 2003

 7     during which the parties expanded on the arguments set out in their

 8     respective briefs regarding factors to be considered in determining

 9     sentence.  Both the Prosecution and the Defence requested that the Trial

10     Chamber impose a sentence of eight years.  The Trial Chamber adjourned

11     the case to consider sentence.

12             A written Factual Basis for the crime and for Mr. Banovic's

13     participation in it was filed with the Plea Agreement.  The Factual Basis

14     was agreed by the Accused with his counsel and forms the basis upon which

15     the Trial Chamber will determine sentence.  The facts described therein

16     are as follows.

17             The case against the accused covers events which occurred in the

18     municipality of Prijedor, located in the north-western region of Bosnia

19     and Herzegovina.  Following the overthrow of the municipal government of

20     Prijedor during the summer of 1992, Bosnian Serb authorities in the

21     Prijedor municipality unlawfully segregated, detained, and confined a

22     large number of men, women, and children in three major camps, one of

23     which was the Keraterm camp, located in a ceramic factory on the eastern

24     outskirts of Prijedor town.

25             It is said that these events were organised and directed by

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 1     Bosnian Serb authorities in order to carry out a part of the overall

 2     objective of the joint criminal enterprise of the Bosnian Serb

 3     leadership, namely the permanent, forcible removal of non-Serb

 4     inhabitants from the Prijedor municipality with the aim of ensuring the

 5     creation and control of a separate Serbian territory within Bosnia and

 6     Herzegovina.

 7             The Keraterm camp began operating on the 23rd of May, 1992, and

 8     held as many as 1,500 detainees.  This camp, amongst others, was operated

 9     in a manner designed to ill-treat and persecute non-Serbs from Prijedor

10     and other areas as a means to rid the territory of or to subjugate those

11     who remained.  Interrogations, severe beatings, sexual assaults and

12     killings are said to have taken place on a daily basis at the Keraterm

13     camp.  Living conditions were brutal and inhumane.

14             Predrag Banovic was a guard at the Keraterm camp between the 20th

15     of June, 1992, and the 6th of August, 1992.  The participation of the

16     accused in the joint criminal enterprise was limited to his activities

17     within the Keraterm camp, which included participation in beatings and

18     abuse of detainees.  Detainees at the camp suffered brutal, inhumane and

19     degrading conditions during their confinement, in addition to

20     humiliation, harassment, physical and psychological abuse.

21             The Factual Basis also describes the deplorable living conditions

22     at the Keraterm camp.  The rooms were overcrowded, detainees often

23     lacking space to lie down or move about.  Detainees had no change of

24     clothing or bedding and limited medical care.  They were fed grossly

25     insufficient portions of food and had limited access to water.  Toilets

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 1     and personal hygiene facilities were inadequate and in extremely poor

 2     condition.  The detainees had no opportunity to exercise and were not

 3     permitted to go in the open area for fresh air on a regular basis.

 4             Keraterm authorities, as well as "visitors", regularly subjected

 5     the detainees to severe beatings, interrogations, cruel and humiliating

 6     treatment; many were killed.  The beatings often took place in full view

 7     of the other detainees and were accompanied by humiliating and derogating

 8     comments.  The beatings caused serious physical and mental harm. 

 9     Insufficient or no medical care was available after the beatings.  Many

10     detainees did not survive the camp.

11             The Accused was a guard and did not hold any rank at the Keraterm

12     camp.  However, he knew of the system of ill-treatment in the camp,

13     participated in the mistreatment and beating of the detainees in the camp

14     and intended to further this common concerted system of ill-treatment.

15     The accused, amongst others, took part in the beating of detainees at the

16     Keraterm camp, resulting in their death.  Specifically, the Accused has

17     acknowledged being responsible for participating in five murders listed

18     in the Factual Basis and the written Judgement.  In addition, the Accused

19     acknowledges his participation in the beating of 27 others.

20             Turning to sentencing factors, the Trial Chamber first considered

21     the gravity of the offence, bearing in mind that this requires

22     taking account of the particular circumstances of the case as well as the

23     form and degree of participation of the accused in the crime.

24             The Prosecution has submitted that, in the present case, the

25     underlying offences of the crime of persecution to which the accused has

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 1     pleaded guilty, namely five murders and 27 beatings of prisoners

 2     incarcerated at the Keraterm camp, are inherently grave.  Conditions of

 3     detention at the camp were described as brutal, inhumane, and degrading

 4     for all prisoners.  The Accused is said to have abused his position as a

 5     guard at the camp by subjecting prisoners to gratuitous and constant

 6     humiliation, harassment, and violence.

 7             The Trial Chamber observes that the crime of persecution is

 8     inherently very serious.  Its unique character is derived from a

 9     requirement of a specific discriminatory intent, on account of which the

10     crime is regarded as a particularly serious offence.  In this case, the

11     gravity of the offence is demonstrated by the persecutory acts for which

12     the accused has been convicted, namely:

13             the murder of 5 prisoners;

14             the beating of 27 detainees; and

15             the confinement in inhumane conditions, harassment, humiliation,

16     and the psychological abuse of non-Serbs detained at the Keraterm camp.

17             The Trial Chamber accepts that these acts, considered either

18     separately or in combination, and examined in their context, are of the

19     utmost gravity.  The parties have agreed, and the Trial Chamber is

20     satisfied, that the imprisonment and confinement of non-Serbs in inhumane

21     conditions at the Keraterm camp was carried out with the intent to

22     discriminate against non-Serb detainees.  The direct participation of the

23     accused in the perpetration of these crimes, as well as his presence when

24     others committed the crimes, with his knowledge, are factors that the

25     Trial Chamber has considered in determining sentence.

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 1             The Defence has submitted that in assessing the gravity of the

 2     crime and the role of the accused, the Trial Chamber should take account

 3     of a number of other factors.  First, the low rank of the accused;

 4     secondly, the state of mind of the accused, who, it was submitted, never

 5     intended to kill anyone; and thirdly, the effect of the aggressive

 6     wartime propaganda on the accused.

 7             The Trial Chamber is unable to accept the submission that the low

 8     rank of the accused is relevant in assessing the gravity of the offence

 9     in this case.  The fact that the accused was a low-level offender in

10     terms of the overall structure of authority at the Keraterm camp or in

11     Prijedor cannot alter the seriousness of the offences for which the

12     accused has been convicted or the circumstances in which he committed

13     them.

14             As to the state of mind of the accused, it cannot be said to

15     alter the gravity of the offence.  The Trial Chamber is further satisfied

16     that the accused participated in those beatings with the intention to

17     inflict serious bodily harm or the death of the victims.

18             The third issue, the role of the war propaganda, clearly does not

19     affect the gravity of the criminal conduct of the accused and is more

20     appropriately considered in relation to mitigating factors.

21             The Prosecution has argued that, in assessing the gravity of the

22     crime, the Trial Chamber should also consider the status of the victims,

23     including their health.  The Trial Chamber accepts that this element

24     affects the seriousness of the offence.  The fact that the detainees were

25     civilians who had been in detention for up to three months is relevant to

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 1     the consideration of the gravity of the crime.  However, the status of

 2     the victims as civilians does not necessarily aggravate the offence since

 3     the crime of persecution for which the accused is convicted includes the

 4     civilian character of the victims as an indispensable legal ingredient.

 5             The Trial Chamber also accepts that the position of inferiority

 6     and the vulnerability of the victims, as well as the context in which the

 7     offences were committed, are relevant factors in assessing the gravity of

 8     the offence.

 9             Turning next to aggravating factors, the Prosecution submitted

10     that the vulnerability of the victims and the fact that the accused

11     abused his position while on duty should be considered in aggravation.

12             While the Trial Chamber accepts that the vulnerability of the

13     victims and the circumstances related to the offence may be considered in

14     aggravation, it considers that these factors have already been taken into

15     account when assessing the gravity of the offence.  However, the fact

16     that the accused abused his position of authority over the detainees

17     while on duty, mistreating and beating them in total disregard for human

18     life and dignity, is an aggravating factor in this case.

19             Turning next to mitigating circumstances, both the Prosecution

20     and the Defence submitted that the guilty plea and acceptance of

21     responsibility should be considered in mitigation of sentence.  The

22     Defence additionally submitted that the accused's rank and subordinated

23     position in the police authority, his character, personal circumstances

24     and behaviour in the Detention Unit should be considered in mitigation.

25             The Trial Chamber observes that an accused's substantial

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 1     cooperation with the Prosecutor is the only mitigating circumstance

 2     expressly mentioned in the Rules.  In turn, the determination as to

 3     whether an accused's cooperation has been substantial depends on the

 4     extent and quality of the information that he or she provides.

 5             In the present case, the Prosecution accepts that there has been

 6     some cooperation and promise of future cooperation.  However, it argues

 7     that the level of cooperation may not be qualified as "substantial."  On

 8     the other hand, the Defence submits that the accused has provided

 9     substantial cooperation by his plea of guilty, interviews with the

10     Prosecution, and a promise of future cooperation.

11             The Trial Chamber observes that cooperation with the Prosecutor

12     is generally considered in mitigation of sentence, but it does not follow

13     that failure to cooperate is an aggravating circumstance.  In this case,

14     the Chamber notes that the accused agreed to be interviewed by the

15     Prosecution, thus demonstrating his willingness to cooperate.  The

16     information given in the interviews and his commitment to cooperate with

17     the Prosecution in the future under conditions stipulated in the Plea

18     Agreement are factors that the Chamber has taken into account in

19     concluding that his cooperation was substantial and thus qualifies as a

20     mitigating factor.

21             The Chamber has already examined the low rank of the accused when

22     considering the gravity of the offences, but the Chamber is not satisfied

23     that the accused's low rank in the police force is a factor that ought to

24     be considered in mitigation.  There is, further, no evidence that the

25     accused acted under any form of duress.

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 1             The Chamber accepts the Defence claim that the accused has been

 2     cooperative and well-behaved while in the custody of the Tribunal and has

 3     taken this factor into account.  A Trial Chamber has a discretion to

 4     consider any other factors which it considers to be of a mitigating

 5     nature.

 6             Dealing first with the guilty plea, the Chamber accepts the

 7     proposition endorsed in several cases before the Tribunal that a guilty

 8     plea should, in principle, be considered in mitigation of sentence. 

 9     Undoubtedly, a plea of guilty contributes significantly to the Tribunal's

10     fundamental truth-finding mission.  A guilty plea also results in a

11     public benefit when, as in this case, it is entered before the

12     commencement of the trial as it saves the Tribunal the time and resources

13     of a lengthy trial.  The Chamber thus finds that the accused should

14     receive full credit for his plea as a mitigating factor.  And the Chamber

15     is also satisfied that the statements made by the accused, both during

16     the interviews with the Prosecution and at the sentencing hearing,

17     reflect sincere remorse.

18             Next, the Chamber is required to take into account factors

19     pertaining to "the individual circumstances of the convicted person." 

20     The Defence submitted that the age and family circumstances of the

21     accused and the fact that he does not have any prior criminal convictions

22     should be considered in mitigation.

23             The Chamber observes that, in certain cases, age has been

24     considered a relevant factor in mitigation of sentence.  In this case,

25     the Chamber notes that the accused was 23 years of age at the time of the

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 1     offences.  Prior to the conflict, Predrag Banovic worked as a waiter. 

 2     Several statements submitted by the Defence attest to the good character

 3     of the accused before the war.  Shortly after the beginning of the

 4     conflict in Prijedor, the accused was mobilised into the police force and

 5     subsequently assigned as a guard at the Keraterm camp.  He was not very

 6     experienced and received no training prior to this assignment.  The Trial

 7     Chamber has considered these factors, together with the lack of any prior

 8     criminal conviction, to be relevant in mitigating the penalty.  But the

 9     Chamber wishes to emphasise that these factors cannot play any

10     significant part in mitigating the sentence.  The Chamber has taken into

11     account as a mitigating factor the fact that the accused is now married

12     and has a child.

13             The Chamber does not consider it appropriate in the present case

14     to mitigate the sentence of the accused on the basis of the submission

15     that he was of below-average intelligence and showed signs of emotional

16     immaturity.  And the Chamber is further not satisfied that the accused

17     suffered from any form of mental disability that could be considered a

18     mitigating factor.  Nor does the Chamber accept the argument that the

19     accused did not have the strength of character to resist the war

20     propaganda.  As already stated, the accused committed very serious

21     crimes.  There is no evidence that he was acting under duress.  The

22     Chamber is satisfied that the accused participated voluntarily in the

23     mistreatment, the beating and killing of detainees at the Keraterm camp.

24             The Defence has submitted witness statements that indicate that

25     the accused had assisted some individual detainees when approached with

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 1     particular requests from relatives and friends.  There are also

 2     statements that indicate that the accused helped some Bosnian Muslims and

 3     other non-Serb families during the war.  Although these acts may not be

 4     said to have impacted in any significant way on the welfare of the

 5     non-Serb detainees at the Keraterm camp in general, they do mitigate the

 6     criminality of the accused.

 7             The Trial Chamber has considered and weighed all the relevant

 8     factors in determining sentence in this case, including the gravity of

 9     the offence, any aggravating circumstances and mitigating circumstances. 

10     The Chamber has also considered the relevant purposes of punishment as

11     well as the general practice regarding prison sentences in the courts of

12     the former Yugoslavia.

13             Under the Plea Agreement, the parties have jointly recommended

14     that a sentence of eight years be imposed.  The Chamber is not bound by

15     this agreement.

16             The offence of persecution is made all the more serious by

17     considering the underlying criminal offences.  The accused has

18     acknowledged his direct, personal involvement in inflicting severe pain

19     and bodily harm through violent beatings of detainees at the Keraterm

20     camp.  More significantly, Predrag Banovic has been convicted for

21     participating in the beatings that caused the death of five detainees and

22     the beating of 27 others, and any sentence must necessarily reflect this

23     factor.

24             The Trial Chamber has found that the accused abused his position

25     while on duty at the camp, mistreating and humiliating detainees in total

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 1     disregard of human life and dignity.  The fact that he was a low-level

 2     offender in terms of the overall structure of authority at the camp

 3     cannot alter the gravity of the offences for which he has been convicted. 

 4     On the other hand, the Chamber has taken into account all the relevant

 5     circumstances in mitigation of sentence.

 6             Let the accused stand.

 7             Predrag Banovic, the Trial Chamber, having given due weight to

 8     the various factors set out in this Judgement, sentences you to a term of

 9     eight years' imprisonment.  The sentence will run as of today.  You have

10     been detained in the Detention Unit for a total of 716 days to date, and

11     you're entitled to credit for this period of time.  You will remain in

12     the custody of the Tribunal pending finalisation of arrangements for your

13     transfer to the state where you will serve your sentence.

14             The hearing is adjourned.

15                           ---  Whereupon the Sentencing Hearing

16                                adjourned at 3.28 p.m.