Tribunal Criminal Tribunal for the Former Yugoslavia

Page 69

1 Thursday, 17 October 2002

2 [Sentencing Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.40 p.m.

6 JUDGE MUMBA: Please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours, case number

8 IT-95-9/2-S, the Prosecutor versus Milan Simic. Thank you.

9 JUDGE MUMBA: May I have the parties, the Prosecution, please.

10 MR. WEINER: Prosecution is present, all counsel.

11 JUDGE MUMBA: And the Defence.

12 MR. ZECEVIC: Good afternoon, Your Honours, Slobodan Zec and

13 Catharine Baen for the accused.

14 JUDGE MUMBA: I notice the accused Milan Simic is in the

15 courtroom.

16 JUDGE MUMBA: The judgement has been scheduled for 1430 this

17 afternoon we have been delayed by technical problems however now we are

18 ready to give the judgement.

19 This is a summary of the sentencing judgement in the case of the

20 Prosecutor versus Milan Simic. This summary does not form part of the

21 judgement. The only authoritative account of the Trial Chamber's

22 determinations is in the written judgement, which will be made available

23 to the parties by the registry immediately after the hearing.

24 The accused, Milan Simic, a 42-year-old Bosnian Serb was first

25 indicted by the Prosecutor of the Tribunal together with Blagoje Simic,

Page 70

1 Simo Zaric, Miroslav Tadic, Stevan Todorovic, and Slobodan Miljkovic for

2 crimes alleged to have occurred in the area of Bosanski Samac in

3 northwestern Bosnia and Herzegovina in 1992.

4 Milan Simic voluntarily surrendered to the Tribunal on 14 February

5 1998. At his initial appearance on 17 February, 1998, Milan Simic pleaded

6 "not guilty" to the charges against him as contained in the initial

7 indictment. The initial indictment against him has been amended and the

8 most recent version which is the fourth amended indictment was issued on

9 9th January, 2002.

10 In the fourth amended indictment, Milan Simic was charged with

11 seven counts, persecution, a crime against humanity (Count 1), and the

12 beatings and torture of 6 named victims, charged as two counts of torture

13 as crimes against humanity (Counts 4 and 7), two counts of inhumane acts

14 as crimes against humanity (Counts 5 and 8), and two counts of cruel

15 treatment, as violations of the laws or customs of war, (Counts 6 and 9).

16 All of the offences charged in the indictment against Milan Simic were

17 alleged to have been committed in the period from September 1991 to

18 February 1993.

19 Milan Simic was provisionally released twice pending the start of

20 his trial. The first time was from 26th March 1998 until 7th June, 1999.

21 And the second time was from 7th June 2000 until 13th August, 2001. The

22 trial of Milan Simic and his co-accused, namely Blagoje Simic, Miroslav

23 Tadic, and Simo Zaric, on the fourth amended indictment commenced on 10

24 September 2001.

25 On 13 May this year, a confidential "Joint Motion for

Page 71

1 Consideration of Plea Agreement between Milan Simic and the Office of the

2 Prosecutor" was filed. At the request of the parties, the Trial Chamber

3 ordered that the proceedings be conducted in closed session pursuant to

4 Rule 62 ter (C) of the Rules.

5 At a hearing held on 15 May 2002 pursuant to Rule 62 bis of the

6 Rules, Milan Simic entered a plea of guilty to two counts, Counts 4 and

7 Count 7 of the indictment, namely two counts of torture as crimes against

8 humanity. Upon the Trial Chamber's acceptance of the plea, the

9 Prosecution withdrew the remaining counts against Milan Simic, and the

10 Trial Chamber severed Milan Simic's case from the rest of the case against

11 Blagoje Simic and the two others on 28th May, 2002.

12 A detailed factual basis of the allegations agreed to by Milan

13 Simic in relation to the criminal conduct underlying his convictions for

14 torture is contained in the plea agreement, attached as annex A to the

15 joint motion filed by the parties. Milan Simic and the Prosecution agreed

16 that certain specific facts and allegations with respect to counts 4 and 7

17 set out in the indictment would be proven beyond reasonable doubt where

18 were the Prosecution to proceed with further evidence. He agreed that the

19 crimes were committed while holding his position as an official and in an

20 official capacity.

21 At the sentencing hearing held on 22 July this year, the Trial

22 Chamber lifted the confidentiality of all filings related to the hearing,

23 including the transcript of the hearing during which the plea was taken,

24 except that of the plea agreement. Milan Simic made a statement at the

25 start of the Defence submissions in which he expressed his sincere regret

Page 72

1 and remorse for what he had done to his fellow citizens and friends at the

2 elementary school. He took the opportunity to publicly extend apologies

3 to all of them.

4 The Prosecution requested that the Trial Chamber impose a sentence

5 of five years, while the Defence requested that the Trial Chamber impose a

6 sentence of three years. The Trial Chamber notes that when recommending a

7 range of sentence, the parties rightly acknowledged that the Trial Chamber

8 was not bound by their submissions.

9 In determining the sentence, the Trial Chamber has taken into

10 consideration the factors relevant to the determination of an appropriate

11 sentence: The gravity of the offence including any aggravating factors,

12 the mitigating circumstances as well as the general practice regarding

13 prison sentences in the courts of the former Yugoslavia.

14 The parties, both in the plea agreement and in their oral

15 submissions, have made references to the evidence presented at trial in

16 the case against Milan Simic and his former co-accused up until the time

17 Milan Simic changed his plea. The Trial Chamber has accordingly taken

18 into consideration such relevant evidence where necessary.

19 The main factors considered by the Chamber are now summarised,

20 starting with the aggravating circumstances.

21 Milan Simic has been convicted of two counts of torture, as crimes

22 against humanity. The Trial Chamber emphasises at the outset that the

23 crime of torture is particularly heinous in its nature and constitutes one

24 of the most serious attacks upon a person's mental or physical integrity.

25 Milan Simic was a member of the Serb Crisis Staff and was serving

Page 73

1 in the position of president of the executive board of the municipal

2 assembly of Bosanski Samac when he committed the offences for which he is

3 convicted. In relation to Count 4, Milan Simic has admitted that one

4 night between about 10th June and 3rd July 1992, he, along with several

5 other men beat Hasan Bicic, Muhamed Bicic, Perica Misic and Ibrahim Salkic

6 with a variety of weapons: Milan Simic kicked the victims in their

7 genitals and gunshots were fired over their heads.

8 In respect of Count 7, Milan Simic admitted that he, along with

9 several other men, repeatedly beat (redacted) with a variety of

10 weapons one night in or about June 1992. The barrel of a handgun was

11 placed in his mouth. During the beating, (redacted) was forced

12 to pull down his pants and one of the other Serb men who accompanied Milan

13 Simic threatened to cuts off his penis while brandishing a knife. During

14 the course of the beating, Milan Simic fired gunshots over the victim's

15 head.

16 There can be no doubt that the acts that comprised the particular

17 acts of torture for which Milan Simic stands convicted are barbaric and

18 shocking. Although the mistreatment inflicted by Milan Simic upon his

19 victims did not happen over a prolonged period of time, the manner and

20 methods used render them despicable.

21 The Trial Chamber considers that the sexual, violent and

22 humiliating nature of the acts are in aggravation, as these features would

23 certainly have increased the mental suffering and feeling of degradation

24 experienced by the victims. Moreover, the crimes in which Milan Simic

25 took part should be viewed in the context of the horrific conditions which

Page 74

1 existed at the primary school at the time, and of the inhumane treatment

2 meted out to the detainees in that detention camp. Milan Simic's willing

3 participation in the mistreatment of some of the detainees exacerbated

4 these conditions.

5 This Trial Chamber finds that while he was not charged as a

6 superior per se, Milan Simic's position of authority is nonetheless

7 relevant, as an aggravating factor, as he clearly went to the primary

8 school using his official capacity. Considering his position,

9 Milan Simic's participation in the torture of the detainees referred to in

10 counts 4 and 7 must have left the impression on those present with him in

11 the primary school at the time that this type of conduct was permissible,

12 or even encouraged.

13 The Trial Chamber finds that there can be no doubt that

14 Milan Simic's victims were in a position of inferiority and of acute

15 vulnerability, being in the custody and control of the Bosanski Samac

16 authorities. They all had been in detention for several months, during

17 which they had already suffered extensive and brutal beatings at the hands

18 of others. They were defenceless and had no possibility to protect

19 themselves. In addition, Milan Simic knew the victims personally and

20 selected them. As agreed upon in the plea agreement, it was common

21 knowledge in Bosanski Samac that (redacted), the victim named in

22 Count 7, suffered from a heart condition. The Trial Chamber is satisfied

23 that this heart condition qualifies as vulnerability and that in beating

24 the victim, Milan Simic intentionally exploited this by the intentional

25 infliction or threatened infliction of severe physical pain or suffering.

Page 75

1 Milan Simic admitted committing the offences of which he stands

2 convicted with a discriminatory intent insofar as he intentionally chose

3 to beat the victims because they were either Muslims or Croats and he

4 wished to punish intimidate and humiliate them. A discriminatory intent

5 in the commission of the particular offences to which Milan Simic agreed

6 and pleaded guilty is therefore considered by the Trial Chamber to be an

7 aggravating circumstance in determining his sentence.

8 The Trial Chamber also finds that the crimes were premeditated in

9 that Milan Simic had no other reason for being at the primary school and

10 he specifically selected his victims who were known to him. The

11 Trial Chamber finds that they were two separate incidents of torture for

12 which Milan Simic was indicted and pleaded guilty as reflected in Counts 4

13 and 7 of the indictment and that Milan Simic was involved in two distinct

14 and separate events. The Trial Chamber will impose a sentence for each

15 offence accordingly.

16 The Trial Chamber now turns to mitigating circumstances.

17 This Trial Chamber is of the view that an accused's admission of

18 guilt and acceptance of the facts as related by victims provides a unique

19 and unquestionable fact-finding tool that greatly contributes to a peace

20 building and reconciliation among the affected communities. Milan Simic

21 is the seventh accused before the Tribunal to have been convicted on the

22 basis of a guilty plea. He pleaded guilty more than four years after his

23 initial appearance, and his trial had already commenced at the time he

24 entered the plea agreement. The Trial Chamber notes, however, that one

25 named victim in Count 4 who was scheduled to testify for the Prosecution

Page 76

1 had not yet testified before the Tribunal. In light of these factors,

2 Milan Simic's plea of guilty is bound to weigh less in the sentencing

3 process than if it had been made earlier or before the commencement of the

4 trial.

5 However, the Trial Chamber notes in the Judgement the extensive

6 preparations and modifications that were undertaken at both Detention Unit

7 and the Tribunal to accommodate the special needs of Milan Simic due to

8 his medical condition, including the daily videolink between the two

9 locations. The Trial Chamber is aware that the expense for such

10 facilities and takes notes of the fact that certain of these expenses have

11 ceased to be incurred by the Tribunal, and by extension the international

12 community, due to the plea of guilty by Milan Simic. The Trial Chamber

13 thus finds that despite the lateness of the Milan Simic's plea, he should

14 receive some credit for entering a plea of guilty.

15 The Trial Chamber finds Milan Simic's expression of remorse at the

16 sentencing hearing to be sincere and also takes note of the fact that he

17 had returned to the primary school at the time of the events and

18 apologised to two of his victims.

19 The Trial Chamber is of the view that issues concerning the ill

20 health of a convicted person should normally be a matter for consideration

21 in the execution of the sentence to be meted out. It is only in

22 exceptional circumstances or rare cases where ill health should be

23 considered in mitigation. Although sympathetic with the medical

24 complications that Milan Simic has suffered and his current medical

25 condition, the Trial Chamber is not satisfied that the medical problems

Page 77

1 are present to such a degree as would justify a reduction of the sentence.

2 Milan Simic's medical condition, therefore, is not to be taken into

3 account as a mitigating factor in the determination of sentence.

4 The Trial Chamber finds that at the time he committed the

5 offences, Milan Simic's age and educational background were such that he

6 was sufficiently mature to know that his actions were not only wrong, but

7 were criminal, and that he knowingly took advantage of a wartime situation

8 to commit horrific violent acts against defenceless persons whom he knew.

9 In addition, the possession of a good character, as related in the

10 affidavits submitted by the Defence is not regarded by the Trial Chamber

11 as a mitigating factor to the commission of the crimes of torture.

12 The Trial Chamber finds that the voluntarily surrender of Milan

13 Simic constitutes a mitigating factor.

14 The Trial Chamber treats Milan Simic's lack of prior criminal

15 record as a mitigating factor, albeit not a significant one.

16 The Trial Chamber finds that Milan Simic was cooperative

17 throughout the proceedings, and notes specifically his agreement to follow

18 the proceedings via videolink from the detention unit resulting in greater

19 efficiency in the trial. The Trial Chamber finds Milan Simic's

20 comportment in the detention unit and his general cooperation with the

21 Trial Chamber and the Prosecution during the proceedings against him to be

22 a mitigating factor.

23 In the final section of the judgement, the Trial Chamber considers

24 the relative weight to be accorded to the above-mentioned factors in

25 determining Milan Simic's sentence.

Page 78

1 The Trial Chamber has taken into account and weighed the totality

2 of Milan Simic's culpability and all the particular circumstances of the

3 case. Having considered the written and oral submissions of the

4 Prosecution and the Defence, the Trial Chamber finds that the following

5 circumstances have been proven beyond reasonable doubt to be aggravating:

6 The circumstances in which the offences were committed, Milan Simic's

7 official position, the vulnerability of the victims, and Milan Simic's

8 discriminatory intent. The Trial Chamber is satisfied that Milan Simic's

9 admission of guilt and expression of remorse, his voluntary surrender,

10 lack of prior criminal record, and his comportment in the detention unit

11 and attitude towards the proceedings are circumstances proven to be

12 mitigating on the balance of probabilities. In the determination of Milan

13 Simic's sentence, the Trial Chamber has considered the general practice

14 regarding prison sentences in the former Yugoslavia. The Trial Chamber

15 has also considered the need for the sentence to reflect the relative

16 significance of Milan Simic's role in the broader context of the conflict

17 in the former Yugoslavia.

18 The Trial Chamber notes that at the present time, a range or

19 pattern of sentences in relation to persons with generally similar

20 circumstances as that of Milan Simic and having committed acts of torture

21 as a crime against humanity in substantially similar circumstances does

22 not exist.

23 Milan Simic was a senior public official in Bosanski Samac and he

24 committed acts of torture in the primary school of Bosanski Samac while

25 serving as president of the executive board of the municipality. Although

Page 79

1 Milan Simic held a senior position in Bosanski Samac, the Trial Chamber is

2 not satisfied that he played any particularly significant role in the

3 broader context of the conflict in the former Yugoslavia. However, he is

4 responsible for particularly serious offences against vulnerable persons.

5 His behaviour and consequent infliction of severe pain and suffering

6 through violent beatings and other barbaric acts can only be condemned in

7 the highest degree. Under ordinary circumstances, a long custodial

8 sentence, even up to the remainder of his life, would have been

9 appropriate.

10 In relation to Milan Simic's medical condition, the Trial Chamber

11 as mentioned, noted that as a paraplegic, Milan Simic, who is

12 wheelchair-bound requires full time medical attention including daily

13 assistance with the most basic activities crucial for day-to-day

14 subsistence. Although the Trial Chamber found that such condition does

15 not qualify as a factor in mitigation of Milan Simic's sentence, his

16 physical circumstances cannot be ignored. The Trial Chamber notes that in

17 the history of the Tribunal, there has not been an accused in similar

18 medical circumstances. Such a condition poses an exceptional circumstance

19 that obliges this Trial Chamber, for reasons of humanity, to accept that

20 Milan Simic's medical condition ought to be a consideration in sentencing

21 as a special circumstance. Accordingly, a lesser sentence than Milan

22 Simic would have otherwise received will be imposed. This is not to say

23 that a long custodial sentence cannot be imposed on any accused in a

24 similar state. Rather, each case must be treated according to its own

25 circumstances.

Page 80

1 The Trial Chamber does not find that the conditions of

2 Milan Simic's provisional release amounted to house arrest, but rather

3 allowed him to return to his family and his community, pending the start

4 of his trial. Milan Simic was allowed to leave his house albeit with

5 certain limitations. Provisional release in these conditions cannot be

6 considered as amounting to "detention in custody". Therefore, no credit

7 will be given to Milan Simic for the time he spent provisionally released

8 from the Detention Unit pending the start of his trial.

9 The operative paragraph of the sentencing judgement reads as

10 follows:

11 For the foregoing reasons, having considered the arguments of the

12 parties, the evidence presented at the sentencing hearing and the Statute

13 and the Rules having weighed the aggravating and mitigating circumstances

14 and taken note of the general practice regarding prison sentences in the

15 former Yugoslavia, the Trial Chamber sentences Milan Simic to five years

16 imprisonment for Count 4, and five years imprisonment for Count 7 and

17 orders that the sentences shall be served concurrently. The Trial Chamber

18 finds that he is entitled to credit for 835 days in relation to the

19 sentence imposed by the Trial Chamber, as of the date of this Sentencing

20 Judgement.

21 Pursuant to Rule 103(C) of the Rules, Milan Simic shall remain in

22 the custody of the Tribunal pending the finalisation of arrangements for

23 his transfer to the state where he shall serve his sentence.

24 Pursuant to Rule 104, the Trial Chamber requests that the registry

25 of the Tribunal ensures, as far as possible, that the custodial

Page 81

1 institution where Milan Simic is to serve his sentence should adequately

2 accommodate his medical needs.

3 That is the end of the Sentencing Judgement. There being no other

4 business, the Court will rise.

5 --- Whereupon the Sentencing Judgement adjourned

6 at 5.05 p.m.