1 Monday, 8 October 2001

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 11.15 a.m.

5 JUDGE ROBINSON: Sir Ivan.

6 MR. LAWRENCE: Mr. Ostojic is handling the Defence this morning.

7 MR. OSTOJIC: Good morning, Your Honours.

8 JUDGE ROBINSON: Mr. Ostojic, yes. We have your document which is

9 hot off the press. What would you like to say?

10 MR. OSTOJIC: First of all, I would like to thank the Court for

11 allowing us additional time this morning in order to make some changes and

12 to try to have the affidavits comport with the Rules.

13 On behalf of Dragan Kolundzija, we would formally like to advise

14 the Tribunal Court we are not calling any live witnesses, and we would

15 respectfully move the Court to accept the filing prepared today,

16 October 8, 2001, and withdraw the filings made previously on October 3 and

17 October 4, 2001.

18 Briefing, the filing of today, October 8, 2001, include affidavits

19 of 17 different individuals. They include three letters of prospective

20 employment. They include two certificates reflecting that Dragan

21 Kolundzija did not have any prior criminal record. And they also include

22 two reports from doctors who have treated, evaluated, and diagnosed Dragan

23 Kolundzija while here in the Detention Unit.

24 This request is made in lieu of presentation of live evidence

25 after consultation with my learned friend from the Office of the

1 Prosecutor, Dirk Ryneveld, and in the interest of preserving judicial

2 economy and efficiency as well as the resources available to the Tribunal,

3 the affidavits are strictly used as further support of Mr. Kolundzija's

4 conduct, demeanour, and reputation prior to, during, and after the tragic

5 events the summer of 1992.

6 Admittedly, some of the affidavits went beyond the issue of

7 mitigation for which they are presented. The intent, purpose, and spirit

8 of these affidavits is to address, explain, and clarify Mr. Kolundzija's

9 reputation and character. It is hoped, and we respectfully request, since

10 there is no objection, or presumably no objection, to the affidavits,

11 letters of prospective employment, certificates reflecting no prior

12 criminal record, and the two psychiatric reports, that they be accepted in

13 lieu of live testimony and be given the same weight as evidence that was

14 both live and through sworn transcripts. Thank you.

15 JUDGE ROBINSON: Thank you, Mr. Ostojic.

16 Before I call on the Prosecution. May I just ascertain whether

17 any of the counsel for the other defendants have anything to say on this.

18 Mr. Greaves?

19 MR. GREAVES: No. Thank you.

20 JUDGE ROBINSON: Mr. Petrovic?

21 MR. PETROVIC: [Interpretation] No. Thank you, Your Honour.

22 JUDGE ROBINSON: Yes, Mr. Ryneveld?

23 MR. RYNEVELD: Thank you, Your Honour. At the outset, I can

24 certainly agree with my learned friend that the Prosecution takes no

25 objection to the concept of filing affidavits without the necessity of

1 calling witnesses live for the various reasons that my friend has

2 enunciated.

3 The purpose of these affidavits, our understanding was, in order

4 to provide character evidence, and we also understand that my friend has

5 filed documents to show there's no previous criminal record and some

6 reports. We take no issue with any of those matters, and as a matter of

7 fact, we agree that provided that this provides the Court with the type of

8 information it needs to make a fully informed sentencing decision, this is

9 a preferable way, from the Prosecution's point of view, to save court time

10 and so we can get on with further matters.

11 I do have, however, some concern about the process that took place

12 as I understand it, which was cause for some of the delay this morning,

13 and that was that some time ago, my learned friends had filed affidavits.

14 I had originally indicated to my learned friend that the affidavits were

15 to be for the assistance of the Court on the issue of character and that I

16 was not happy if they went beyond that, except if some of those witnesses

17 would need to give some background information as to how it was that they

18 knew Mr. Kolundzija in order to give some basis to the Court on facts in

19 order to be able to express an opinion as respect to character.

20 I understand that my friend had filed a series of affidavits, and

21 I understand that those affidavits have now been the subject of an

22 application for withdrawal and filing of additional documents or different

23 documents.

24 My friend has phoned me moments before court reopened this morning

25 and told me what those changes were. Without getting into the details of

1 those changes, the fact is that I have some concern that sworn affidavits

2 have now been edited or changed and were not part -- exactly the same as

3 the affiant swore to, apparently, when they were given. I have some

4 concern about the process, and frankly, many of the changes that were made

5 may well have been the topic of comment by the Prosecution in relation to

6 submissions that might be made.

7 So my position, on behalf of the Prosecution, is this: that those

8 affidavits should be used for the purpose of character only, and where

9 they go beyond the scope of character evidence, we would ask that the

10 Court disregard those. And the facts upon which the guilty plea has been

11 based has been recorded. It has been the subject of submissions by all

12 counsel in writing. And where those character affidavits purport to go

13 into factors beyond the issue of character, we would ask the Court to

14 exercise its discretion, to disabuse your minds of those matters and treat

15 it for the purpose for which it was filed.

16 I believe --

17 JUDGE ROBINSON: These affidavits come in under Rule 92 bis.

18 MR. RYNEVELD: Yes.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: Thank you, Mr. Ryneveld.

21 Mr. Ostojic, I just wanted to ask you about the point made by

22 Mr. Ryneveld.

23 I think somebody has -- turn yours off. Yes.

24 [Technical difficulty]

25 JUDGE ROBINSON: Is there a problem? Okay.

1 Yes. I wanted to ask you about the point made by Mr. Ryneveld

2 that some changes were made to the affidavits this morning, not

3 necessarily with the authorisation of the affiants. Are these substantial

4 changes, or are they editorial changes?

5 MR. OSTOJIC: I can address that, Your Honour. First of all, as I

6 told my learned friend Mr. Ryneveld, I did this weekend check with the

7 affiants. There are six in particular that we believe minor editorial

8 changes were made to those affidavits, and all told, I think, of those six

9 affidavits, there were approximately no more than ten lines out of the

10 complete set of six affidavits that were redacted from the original filing

11 of October 3rd and 4th. In addition to a seventh affidavit, since he was

12 a previous witness, we redacted his name as well from the original text to

13 continue to protect his identity, as he had requested. So that would have

14 been the seventh change. In all total, of the 24 affidavits, again only

15 six changes were made.

16 I can't comment on behalf of the OTP as to how they view some of

17 these changes, but in my opinion, they were minor changes. I think they

18 have no effect with respect to the issue for which they're presented,

19 namely, the character and reputation of our client, Dragan Kolundzija, and

20 I believe they continue to be consistent.

21 With respect to those six, this weekend we did check with our

22 investigator and made them verify with the affiants the changes that they

23 were contemplating making, and as I told my learned friend this morning,

24 that if necessary, we can get the affidavits from those individuals in

25 order to make that attestation before the Court that they are in agreement

1 with the redaction of those particular sentences.

2 JUDGE ROBINSON: Thank you. Would you give us again an outline of

3 the context of this document? You don't have at the beginning of the

4 document the contents. Just give us -- enumerate --

5 MR. OSTOJIC: I will. The total number of affidavits are 24.

6 JUDGE ROBINSON: Yes.

7 MR. OSTOJIC: The total number of letters of employment or

8 prospective employment are three; the number of certificates from the

9 court and/or clerk of the jurisdiction where Mr. Dragan Kolundzija is from

10 revealing no prior criminal record are two; and we have two psychiatric

11 reports, which should correspond to the number of 31, which is the outline

12 I believe that the Court has that we filed today, 31 separate documents.

13 JUDGE ROBINSON: In the --

14 [Trial Chamber and registrar confer]

15 [Technical difficulty]

16 JUDGE ROBINSON: Yes. I thank the clerk for that instruction and

17 technology.

18 In the original filing, you had, in my view, very usefully cited

19 some passages from the transcripts. You have retained those?

20 MR. OSTOJIC: Respectfully, Your Honour, I don't believe -- that

21 was, I think, in the written brief that we've submitted but not in the

22 original filing, which is clearly of just the affidavits and those

23 documents.

24 JUDGE ROBINSON: I see. Yes. Yes, I understand.

25 MR. OSTOJIC: We did not make any reference to the affidavits in

1 the written brief. In particular, what we did was just generalise it for

2 the Court in our sentencing brief.

3 [Trial Chamber confers]

4 JUDGE ROBINSON: Yes. We'll have to consider the document that

5 you have submitted, the affidavits and the other documents. We'll take

6 those under consideration. But my understanding is that this constitutes

7 your presentation today.

8 MR. OSTOJIC: Correct, Your Honour.

9 JUDGE ROBINSON: Okay. Thank you.

10 Mr. Ryneveld, do you have any submissions to make?

11 MR. RYNEVELD: If Your Honour is asking whether we're in a

12 position to make our closing arguments at this point -- is that the

13 question? We are in a position to do that whenever the Court wishes us to

14 do that. I'm ready to do that now, should you wish.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: Yes, Mr. Ryneveld. But you did use the term

17 "closing arguments." We'd like to hear your submissions on this -- on

18 the sentence.

19 MR. RYNEVELD: On the sentence, yes. Thank you.

20 Well, with the Court's permission, perhaps I could just outline

21 how the Prosecution intends to proceed with -- I was asking the Court's

22 permission. I propose to commence by speaking about matters that are in

23 common with respect to all three accused; that is, the camp conditions. I

24 will then ask my co-counsel, Mr. Mundis, to deal with the issue of

25 Sikirica, followed by Ms. Baly for Mr. Dosen, and then I will conclude

1 with Kolundzija and any concluding remarks. I don't anticipate that

2 collectively we will be more than half an hour, if that is acceptable to

3 the Court.

4 JUDGE ROBINSON: Yes, it is.

5 MR. RYNEVELD: Your Honours are aware that the conditions in the

6 camp were common to the guilty pleas of all three of these accused, and if

7 I may, I just want to highlight some of the factors that are contained in

8 the plea agreements and also with respect to the evidence that the Court

9 has heard concerning the camp conditions. This Court is in a unique

10 position on a sentencing, having heard substantially the evidence from the

11 Prosecution witnesses on the issue and quite clearly that although counsel

12 have made a recommendation to the Court, we are not attempting to usurp

13 the function of the Court in any way, and the issue of pronouncing the

14 just and appropriate and fitting sentence will always remain in the

15 Court's hands and is not subject to recommendations of counsel.

16 As Your Honours heard from the various witnesses, that once they

17 arrived at Keraterm camp they were locked into one of three rooms. We've

18 generally heard of Rooms 1, 2, and 3. And you've also heard that these

19 rooms were terribly overcrowded. It was often the case that the detainees

20 could not lie down and could not move about freely. And in particular,

21 you heard about the men from the Brdo area, a number of days before the

22 25th of July, 1992, who had been segregated and placed in Room 3, and they

23 were forced to endure particularly inhumane living conditions.

24 With respect to the crowded conditions, you will recall the

25 evidence of various witnesses that even when there was sufficient space to

1 lie down in the rooms, the detainees did not have any suitable bedding.

2 For example, one of the witnesses said the detainees slept on the concrete

3 floor, and they sometimes had wooden pallets available to them and had to

4 use grass as pillows.

5 Now, additionally, you heard evidence that they were so

6 overcrowded, not only with respect to area to sleep, but also that the air

7 was stifling hot, and they couldn't get fresh air for many of the rooms.

8 That was alleviated, of course, by the fact that the doors had bars on

9 them, and then the ones closer to the barred doors would have access to

10 the air.

11 Now, they were allowed only to move when specifically permitted to

12 do so and then usually only to receive what can best be termed as

13 starvation rations. Often they were not provided opportunity to exercise

14 and there was no regular routine whereby they would be permitted to

15 regularly go outside of the rooms for fresh air.

16 Just about every witness testified about the deplorable conditions

17 at Keraterm camp. We know that Keraterm camp had few toilets and the

18 toilets were in a terrible state of hygiene. There were no facilities for

19 person hygiene. Food, when it was provided, was provided erratically, and

20 when it was provided, it was inadequate. The water supply for the

21 detainees was inadequate, particularly during the hot summer months, and

22 they had no changes of clothing, no bedding, and with very rare

23 exceptions, no medical care.

24 You heard evidence that the detainees had at times to urinate or

25 defecate in either a barrel that would be placed in the room or plastic

1 bags in the room, since there was no access to toilets at night on many of

2 the shifts. There were no facilities for bathing or washing clothes, and

3 the majority of the detainees had lice. We did hear of some treatment

4 that was offered on one occasion when a doctor came and provided some

5 medication to combat the lice.

6 The food rations, well, the daily rations we heard about were two

7 thin slices of bread. Many of the witness testified that they were

8 usually covered with flies since it had been left near the toilets before

9 being fed to the detainees. The detainees were also provided with a bowl

10 of water which occasionally, according to some, had a piece of cabbage or

11 macaroni floating in it.

12 Just about all of the detainees told you about the emaciated

13 condition that they left the camp in. Many of them lost between 15 to --

14 I believe one witness indicated 30 kilos during the period of time that

15 they were detained at Keraterm camp. Obviously, the quantity of food was

16 totally inadequate. They were, when fed, were permitted only a minute or

17 two to eat, and the quality of the food was very, very poor, and often

18 there was not enough for everyone. Adding to that, that the other

19 conditions in the camp, including the beatings on the various shifts,

20 resulted in an atmosphere of terror, and that was part of the camp

21 conditions. They were inhumane living conditions.

22 Those, I believe, can be viewed as the common denominators for

23 each of the three shifts. And accordingly, if I may at this point, I'm

24 going to ask Mr. Mundis to address his attention to the accused Dusko

25 Sikirica.

1 MR. MUNDIS: Your Honours, Dusko Sikirica, pursuant to the plea

2 agreement in this case, has admitted that his role was commander of

3 security at the Keraterm camp. And pursuant to that plea agreement and in

4 his sentencing brief, Mr. Sikirica, through counsel, of course, has

5 admitted that he had some, albeit limited, command responsibility

6 attaching to him pursuant to his role as commander of security at the

7 Keraterm facility.

8 The Prosecution submits that viewed in light of both the evidence

9 you've heard and in light of Mr. Sikirica's admissions as reflected in the

10 plea agreement, that he was part of the command structure of the Keraterm

11 camp. And there is also evidence, again reflected in the plea agreement,

12 that on at least one occasion, Mr. Sikirica reported the misconduct of

13 Zoran Zigic up the chain of command.

14 The Prosecution submits that Mr. Sikirica certainly bears

15 responsibility as commander of security for allowing outsiders to come

16 into the camp, where the detainees were mistreated, beaten, killed, and

17 otherwise abused. Certainly the evidence and what Mr. Sikirica has

18 admitted to demonstrates that he was aware that outsiders were coming into

19 the camp, and again on at least one occasion, he reported such misconduct

20 to his senior authorities outside of the Keraterm camp.

21 And certainly the Prosecution asserts that based on all of the

22 evidence before you and the plea agreement, that Mr. Sikirica certainly

23 had command responsibility or limited responsibility, even if it was

24 limited, for the overall conditions in the camp, including the

25 mistreatment that occurred of detainees.

1 But certainly Mr. Sikirica's role is not limited to his role as

2 the commander of security at the Keraterm camp. Mr. Sikirica has

3 personally admitted that he killed one of the detainees by shooting him.

4 And although the Defence in their sentencing brief has remarked that the

5 victim most likely was killed instantaneously and that the victim hadn't

6 suffered any humiliation or had been tormented prior to being shot by the

7 accused Sikirica, the Prosecution certainly asserts, on the other hand,

8 that nor was this -- had this detainee -- is there any evidence that this

9 detainee provoked this killing in any way. What we have here is simply an

10 incident where the accused Sikirica murdered this individual without any

11 justification whatsoever. He did this in broad daylight. He did this

12 while other detainees were present and were aware of this. And the

13 Prosecution submits that this certainly contributed to the overall

14 atmosphere of terror which existed in the Keraterm camp during the summer

15 of 1992.

16 In addition to this single killing, however, the accused has

17 acknowledged that there were countless other killings that occurred in the

18 camp, to include the Room 3 massacre, which I'll talk about in a few

19 moments.

20 Clearly this was a camp where, again, countless numbers of

21 individuals were murdered and where, in the Prosecution's view, the

22 accused, as the commander of security, and able, however limited his role

23 was, to allow insiders or outsiders to gain access to this camp, certainly

24 in our view is an aggravating factor.

25 Beyond these killings, however, there were also countless

1 individuals who were beaten and tormented and abused inside the Keraterm

2 camp. We have had the accused Sikirica admit that women were sexually

3 raped, were raped and other sexual assaults occurred inside the Keraterm

4 camp. And as Mr. Ryneveld has aptly described for you, the conditions in

5 the camp were certainly intolerable for those men and few women who were

6 actually detained there.

7 With respect to the Room 3 massacre, you heard evidence in this

8 trial that that event was committed by outsiders, and again, based on his

9 role as commander of security, the Prosecution asserts that the accused

10 Sikirica, who has admitted that he had a technical duty to prevent

11 outsiders from entering the camp, should be held at least partially

12 responsible for that massacre on the grounds that he did have, as

13 commander of security, the ability to control who came into the Keraterm

14 camp.

15 Your Honour, the Prosecution asserts that the accused Sikirica

16 could have done more to both improve the conditions in the camp and to

17 control access to the camp by the outsiders that the evidence has shown

18 came into the camp and committed crimes against the people that were

19 detained there, and he failed in that duty to do everything that he could

20 to alleviate the suffering that went on in the camp.

21 Your Honour, for the next part of my brief submissions, I would

22 ask that we go into closed session.

23 JUDGE ROBINSON: Yes. Closed session.

24 [Private session]

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25 [Open session]

1 MR. MUNDIS: Your Honours, in light of the submissions of the

2 Prosecution, both orally this morning and pursuant to our written

3 sentencing brief that was filed on the 28th of September, as well as

4 pursuant to the plea agreement, the Prosecution respectfully requests that

5 the accused Sikirica be sentenced to a term of imprisonment of 17 years.

6 If there are no further questions with respect to Mr. Sikirica, I

7 would respectfully ask that my co-counsel, Ms. Baly, continue with respect

8 to the accused Damir Dosen.

9 JUDGE ROBINSON: Thank you, Mr. Mundis.

10 Ms. Baly.

11 MS. BALY: Your Honours, what I intend to do is not to address

12 matters that I've already addressed in the Prosecution's written

13 submissions but to focus on a number of issues raised by counsel for the

14 accused Damir Dosen in their written submissions and respond to those

15 issues.

16 Firstly, Your Honours will recall from our written submissions

17 that the Prosecution's position insofar as Damir Dosen's position in the

18 camp is that Damir Dosen did occupy a position of trust. The counsel for

19 the accused Damir Dosen take issue with that particular submission and

20 argue against that, saying that he did not occupy such a position. Whilst

21 the Prosecution do agree, in accordance with the plea agreement, that the

22 accused held no superior rank in a formal or de jure sense, there is also

23 agreement in the plea agreement between the parties that the accused did

24 act as a shift leader and that he did have authority over between 6 to 12

25 guards. This does, in the Prosecution's submission, constitute a position

1 of superiority in a de facto sense, namely, that despite his lack of rank,

2 he acted as a superior or a leader within the camp.

3 In addition, the Prosecution submits that it is entirely

4 appropriate for this Court to consider the fact that this accused was in

5 fact a reserve police officer at the relevant time, and it is submitted

6 this position does carry with it responsibilities toward all citizens.

7 And Your Honours will recall the evidence given by the expert called by

8 the Defence that on this point the office of police officer [sic] obliged

9 the person holding such an office to prevent mistreatment to all

10 citizens. It is submitted that it would be artificial for Your Honours

11 not to consider the fact that the accused was indeed a police officer when

12 he occupied his position and when he committed the crime.

13 JUDGE ROBINSON: Your submission is that he had de facto Article

14 7(3) responsibility?

15 MS. BALY: It's in accordance with 7(1). The submission is that

16 he did occupy a position of trust vis-a-vis the detainees within the camp

17 and that that factor is a factor for Your Honours to take into account in

18 aggravation, as an aggravating factor, the fact that he occupied this

19 position of trust as a superior and that he breached the trust reposed in

20 him.

21 JUDGE ROBINSON: Not under 7(3).

22 MS. BALY: Under 7(1).

23 JUDGE ROBINSON: Under 7(1).

24 MS. BALY: Under 7(1).

25 If I can turn now, Your Honours, to some matters raised insofar as

1 mitigation is concerned. And the first matter concerns the submission

2 that the accused makes that he should be given -- that considerable weight

3 should be given to remorse expressed by the accused.

4 There is indeed evidence that this accused did express some

5 remorse to the detainees whilst he was in Keraterm. There is also

6 evidence - and it's referred specifically to in the written submissions -

7 that this accused said that what happened to the prisoners, the detainees

8 in Room 3, was something that they had deserved. And so any remorse

9 expressed at the time the offences were committed should be balanced, in

10 the Prosecution's submission, against that evidence.

11 JUDGE ROBINSON: What was the time frame within which that

12 statement was made --

13 MS. BALY: That statement --

14 JUDGE ROBINSON: -- in relation to other expressions of remorse?

15 MS. BALY: That statement was made after, Your Honour, after the

16 Room 3 massacre had taken place.

17 JUDGE MAY: We have to consider, though, the whole position about

18 remorse. And usually the fact that somebody pleads guilty is some

19 indication, at least, of remorse.

20 MS. BALY: Yes. And, Your Honour, I'm about to turn to that, if I

21 may.

22 The point raised by the accused at paragraph 36 of the written

23 submissions is indeed a good one, a very good one, and the Prosecution

24 agrees with it. It is important that this accused has acknowledged his

25 guilt. It is important -- it is an important acknowledgment that a person

1 of Serbian ethnicity from the Prijedor region has admitted that he

2 committed this crime. It is indeed a very rare acknowledgment. It is

3 important to the victims of Keraterm camp, for the region of Prijedor in

4 general, and hopefully, Your Honours, for the process of reconciliation.

5 There is some difficulty in that this expression is not supported

6 by anything further. Indeed, if Your Honours consider the psychiatric

7 report dated the 2nd of October, there is an absence of any expression of

8 remorse. In fact, quite -- the report suggests quite the contrary. The

9 expression of remorse is somewhat empty, in the Prosecution's submission,

10 and loses some of its force because it's not supported in any way from

11 anything from the accused's mouth.

12 The accused in this case has asked Your Honours to find that at

13 the time of the offence, he was of a diminished capacity. And whilst they

14 do not ask Your Honours to take that into account in terms of any finding

15 of not guilty, they have asked Your Honours to take it into account in

16 mitigation and to impose upon the accused a lighter sentence.

17 In the Prosecution's submission, the accused has failed to

18 establish that he was, in fact, of diminished mental capacity at the time

19 the offences took place. Albeit the accused only need establish it on the

20 balance of probabilities, the evidence of the expert -- of the three

21 experts to which Your Honours may --

22 JUDGE ROBINSON: Please continue, Ms. Baly.

23 MS. BALY: The evidence from the three experts too that were given

24 during the trial and one recently by way of report does not refer to the

25 term "diminished mental capacity" in any sense, in any respect, and the

1 most, in the Prosecution's submission, Your Honours could find is that the

2 accused is now suffering from post-traumatic stress disorder.

3 The evidence that the accused suffered various stress reactions

4 which have indeed led, it seems, to this condition of post-traumatic

5 stress disorder. It's noteworthy that the various stress reactions did

6 not occur whilst the accused was in Keraterm camp. And, in fact, the

7 accused was able to continue his duties even after the Room 3 massacre up

8 until after the camp was closed. In addition, after he left Keraterm

9 camp, he was able to function as a member of society in a condition which

10 allowed him to participate in the army on the front line and later to be

11 employed as a guard in a discotheque.

12 It is further submitted - and this is an inference that I would

13 ask Your Honours to draw from the evidence - that much of the stress that

14 the accused has suffered he has suffered as a result of the circumstances

15 that he now finds himself in. They manifested after he became aware that

16 he was under investigation and after he was taken into custody. At most

17 the evidence established that he is suffering from post-traumatic stress

18 disorder, not diminished mental capacity, and for those reasons, Your

19 Honours should not mitigate the sentence in light of any mental

20 incapacity.

21 Similarly, the accused asks Your Honours to consider his personal

22 hardship that he suffered whilst in Keraterm and since Keraterm in

23 mitigation, sentence. It is conceded by the Prosecution that he did in

24 fact suffer considerable personal hardship; however, there is a failure on

25 the part of the accused to link such hardship to the offences, the

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1 offences that occurred in Keraterm, and it is, therefore -- whilst it is a

2 subjective factor that Your Honours can take into account, it does not, in

3 the Prosecution's submission, justify a significant reduction in

4 sentence.

5 Your Honours, at this point may I ask that the Court move into

6 closed session?

7 JUDGE ROBINSON: Yes. Yes.

8 [Private session]

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3 [Open session]

4 MS. BALY: In summation, Your Honours, the Prosecution does

5 maintain that the crime committed by this accused was committed whilst he

6 was in a position of trust, and it is, therefore, an aggravated crime.

7 The participation of the accused in the repressive system that operated in

8 Keraterm camp - and Mr. Mundis and Mr. Ryneveld have outlined essentially

9 the nature of that system - justifies, in the Prosecution's submission, a

10 sentence of seven years imprisonment.

11 Thank you, Your Honours.

12 JUDGE ROBINSON: Thank you, Ms. Baly.

13 Mr. Ryneveld, yes.

14 MR. RYNEVELD: Thank you, Your Honours. As I indicated earlier, I

15 propose to deal with the accused Kolundzija and then a very brief

16 concluding remarks.

17 It's trite law to say that each case turns on its own unique and

18 individual facts, but especially with respect to the accused Kolundzija,

19 that is very much the case. Mr. Kolundzija has pled guilty, and with

20 respect to his role in the persecution of the detainees during their

21 confinement at Keraterm between the 24th of May and the 5th of August,

22 1992, and the Court has accepted that guilty plea.

23 Now, the Court again has had the benefit of hearing all of the

24 evidence from the various witnesses, and the Court has also had the

25 benefit of reading the plea agreement between the parties and the facts

1 which the parties agree apply as against the accused Kolundzija.

2 I've already outlined for you the camp conditions that prevailed

3 during that time period, and Mr. Kolundzija started out as a guard during

4 part of that time period and then accepted a promotion to shift leader,

5 fully aware and fully cognisant of the fact that the conditions at

6 Keraterm were inhumane.

7 I don't think that it's stating -- overstating the matter to say

8 that the conditions at Keraterm camp were in fact a living hell for the

9 detainees who were there. Many of the detainees died as a result of

10 beatings and -- that they sustained at the hands of not only guards but

11 visitors to the camp.

12 Now, against the background that I have outlined to the Court of

13 the inhumane conditions, we need to examine Mr. Kolundzija's particular

14 role, and we would submit that the bulk of the evidence would indicate

15 that Mr. Kolundzija did not personally mistreat any of the detainees, nor

16 was there evidence that the guards on his shift, to his knowledge,

17 mistreated the detainees. We have had many detainees come forward during

18 the course of the evidence, even for the Prosecution, and indicated

19 that -- of the good things that Mr. Kolundzija did for them while on his

20 shift.

21 Those are all mitigating circumstances. Those are all matters

22 that not only I'm sure the Court will take into consideration but that the

23 Prosecution has taken into consideration in making its submissions and

24 making its recommendation to the Court.

25 There is some evidence, however, that Mr. Kolundzija gave

1 preferential treatment to some of the prisoners, some of the people that

2 he knew, people he knew around Prijedor, neighbours, friends who -- you

3 recall hearing the evidence how he allowed some people to use the

4 telephone to call their families. He permitted -- generally permitted

5 families of the prisoners to bring food to supplement their obvious

6 inadequate diet at Keraterm.

7 We have heard many factors in evidence from the Prosecution

8 witnesses, many of whom were the detainees on his shift, who came forward

9 to say good things about Mr. Kolundzija. Some of them went so far as to

10 say that Kole, which was his nickname, Kole's shift was the best shift.

11 But it must be remembered, however, that even though his shift may have

12 been the best shift, nevertheless, the conditions were terrible and

13 inhumane. And not only did Mr. Kolundzija know of the bad conditions, but

14 he didn't quit in protest. No. He in fact accepted a promotion from

15 guard to shift leader.

16 JUDGE ROBINSON: Mr. Ryneveld, can I stop you?

17 MR. RYNEVELD: Yes.

18 JUDGE ROBINSON: It wasn't clear to me what is the significance of

19 the point you're making about the preferential treatment that he gave to

20 people that he knew. Are you advancing that as something that the Chamber

21 should take into consideration, and if so, in what way?

22 MR. RYNEVELD: Yes. Thank you, Your Honour. The Prosecution

23 position is that Mr. Kolundzija was not universally giving privileges to

24 all of the detainees. We know, for example, that the men from the Brdo

25 area were kept in their rooms for days on end and the logistics of it

1 would show that during Mr. Kolundzija's shift, those prisoners were also

2 detained and would have been kept without exercise, would have been kept

3 without food and water and be detained in their premises.

4 The people that came forward to say that he did things on their

5 behalf were almost invariably - and I agree that there were some

6 exceptions - but almost invariably people he knew, friends that he knew,

7 neighbours he knew, and that he gave privileges to some but not to

8 everyone.

9 JUDGE ROBINSON: Wouldn't it be correct to say that his acts of

10 kindness were confined to people whom he knew?

11 MR. RYNEVELD: I do not think that I would be characterising it

12 completely correctly if I were to say that his acts of kindness were

13 confined to those, because there were some -- there was some evidence from

14 some of the witness that indicated that he allowed others also to use the

15 phone, he allowed other families also to bring food, and I could not say

16 conclusively that that was only for people that he knew. But quite

17 clearly, people that he knew got preferential treatment. It may be that

18 some others also received privileges, but we cannot say conclusively that

19 he only allowed his friends or neighbours or family to receive those

20 privileges. But the submission is that if you knew Kole, you were in a

21 much better position to receive favourable treatment.

22 Now, as I was about to go into that -- he accepted the position

23 from guard to shift leader in full knowledge that these beatings and

24 murders were taking place and were likely to continue and in full

25 knowledge that the camp conditions were horrendous. He could see the

1 condition of the detainees. I mean, their emaciation was a progressive

2 case. They were unkempt. He could see the results of the injuries, the

3 bodies in the morning, the fact that people needed treatment, the fact

4 that people were bruised and beaten when he came on his shift. These

5 matters could not and did not, we would submit, escape his attention, and

6 yet he stayed. He stayed. He made a personal choice to stay on as

7 opposed to quit in protest and do what he ought to have done and not have

8 been part of the system that was in place that was for persecution.

9 Now, by way of mitigating circumstances, apart from the things

10 I've already outline, the facts that he made -- he obviously gave many

11 acts of kindness. He admitted his guilt by entering a guilty plea, and he

12 did so -- although he did so after the case had been fully presented for

13 the Prosecution. He has saved the Trial Chamber some valuable time by

14 pleading guilty and by proceeding as he has done this afternoon or this

15 morning by filing affidavits and not calling a Defence case. It would

16 have been preferable had he done so earlier in the proceedings; however,

17 the Prosecution would acknowledge that some credit should be given to him

18 for the timing of the entry of the plea before presenting his full Defence

19 case.

20 Now, my co-counsel Ms. Baly has made reference to the fact that

21 Mr. Dosen, in his role as police officer, as a reserve police officer, had

22 an obligation to protect people, and we would submit that Mr. Kolundzija

23 was in exactly same situation. One would expect that police officers have

24 a duty to protect, and instead, we know the conditions under which these

25 detainees were kept.

1 Now, persecution is a very serious crime, and it is deserving of a

2 sentence that reflects the abhorrence of the crime, that imposes a just

3 penalty and acts as a deterrence for others of like mind, in our

4 respectful submission. And as I've outlined earlier, that each case must

5 turn on its own unique and individual facts. And given the evidence and

6 given the plea agreement and given Mr. Kolundzija's lack of personal

7 involvement in beatings, we would submit that an appropriate and just

8 sentence in this case is five years' imprisonment.

9 We would also submit, Your Honours, that --

10 JUDGE ROBINSON: I think, Mr. Ryneveld, that you are not in

11 agreement, obviously, with the last submission of the Defence on this,

12 which is that taking into consideration the entire set of circumstances,

13 Mr. Kolundzija be given a sentence which, taking account of the time he

14 has already served, would result in his immediate release. That would be

15 a sentence, then, of about two years and, I think, perhaps nine months.

16 MR. RYNEVELD: Your Honour, as I've indicated, it is for the Court

17 to determine what is a just and fitting sentence; it's for counsel to make

18 recommendations. Our position is that the crime of persecution is one

19 that must be viewed as being extremely serious, and one must look at what

20 is the lowest basic acceptable sentence for a crime of this nature. And

21 in the Prosecution's view, of course, it's a recommendation to this Court

22 that this type of sentence has to show to the International Community and

23 the world at large that persecution is a significant, serious offence, and

24 that although, admittedly, Mr. Kolundzija's conduct is at the low end of

25 the scale of seriousness of persecution, nevertheless, in our submission,

1 a just and fitting sentence would be a sentence of no less than five

2 years.

3 So in summary, then, Your Honour, as my co-counsel -- we would

4 rely on our written submission that was filed on the 28th of September,

5 and we, of course, have in our very brief submissions, oral submissions to

6 you today, not dealt exhaustively with the factors contained in our

7 Prosecution sentencing brief. But by way of concluding remarks, the

8 Prosecution asks that you impose a sentence of 17 years for Mr. Sikirica,

9 a sentence of 7 years for Mr. Dosen, and a sentence of 5 years for

10 Mr. Kolundzija. Those are our submissions. Thank you very much.

11 JUDGE ROBINSON: Thank you, Mr. Ryneveld.

12 Mr. Greaves.

13 MR. GREAVES: May it please Your Honours. I'm going to address

14 you, I hope and finish by 1.00. Immediately before I pose what I have to

15 say to Your Honours, the accused Dusko Sikirica would seek Your Honours'

16 permission to address you very briefly on his own behalf, if you would

17 find that acceptable, please.

18 [Trial Chamber confers]

19 JUDGE ROBINSON: Yes, that would be acceptable.

20 MR. GREAVES: I'm grateful.

21 Your Honour, I first want to deal with the issue of the guilty

22 plea tendered by the defendant and what credit should be given for that.

23 In so doing, I am, of course, conscious of the case of Prosecutor versus

24 Stevan Todorovic, in which each of Your Honours was involved in July of

25 this year, and in particular paragraph 81 of that decision, which if I can

1 briefly remind Your Honours, says this:

2 "A guilty plea is always important for the purpose of

3 establishing the truth in relation to a crime. Generally, however, a plea

4 of guilt will only contribute to the above-described public advantage ..."

5 And that is the public advantage, if I can give a shorthand phrase for it,

6 of judicial economy and the saving of time and saving of witnesses giving

7 evidence. "... the above-described public advantage if it is pleaded

8 before the commencement of the trial against the accused. Needless to

9 say, if pleaded at a later stage of the proceedings or even after the

10 conclusion of the trial, a voluntarily admission of guilt will not save

11 the International Tribunal the time and effort of a lengthy investigation

12 and trial."

13 Your Honours, it's in the context of that observation in that

14 judgement that I now address you, and I seek to persuade you that in this

15 case, it would be right to give the accused full or, at the very least,

16 substantial credit for his having pleaded guilty in this case, albeit at

17 the end and after the conclusion of the evidence against him.

18 It is important, in our submission, to go back and look at what

19 the position was at the outset of the trial. At that stage, the

20 Prosecution was asserting against this accused not just the offences of

21 persecution and other offences but also the offence of genocide, and it

22 was being placed on a factual basis which we submit was far more serious

23 than that in fact has come out during the course of the evidence and has

24 been accepted on all sides in the plea agreement, and one only has to look

25 at the way in which the Prosecution were putting their case at the outset,

1 both in their pre-trial brief and their opening statement, to see how the

2 matter was put against the accused.

3 It is also important to remember that many elements that go to the

4 issue of persecution also go equally to the issue of genocide. Not just

5 did the case against Dusko Sikirica at that time involve Keraterm and the

6 events that transpired in the summer of 1992 at that place, but also

7 linked the defendant not just to a massacre in Trnopolje but to wider

8 events: for example, ethnic cleansing in Kozarac; for example, the plan,

9 if such existed, in relation to the takeover of power in Prijedor in 1992.

10 To put not too fine a point on it, at that point it is quite

11 evident, we submit, that there would have been no prospect whatsoever of

12 any basis for agreement between the Prosecution and the Defence as to

13 either plea or as to any factual basis for such a plea, and that is

14 effectively affirmed by the Prosecution in the way in which they came to

15 their agreement with the defendant in respect of plea. The parties were,

16 in short, simply too far apart. In any event, there was never any

17 prospect whatever that the defendant would plead guilty to genocide, and

18 that matter would have had to have been tried in any event, hearing, we

19 submit, the very same witnesses that have in fact given evidence.

20 At that stage also, the jurisprudence, we would submit, was wholly

21 against encouraging anybody to plead guilty. The case of Erdemovic is

22 often cited by those who say, "Well, there has been jurisprudence from the

23 word 'go' saying that you get credit for pleading guilty," but many

24 advocates on this side of the bar would say that Erdemovic is in fact very

25 much on its own facts, unique and dependent upon the very unusual

1 circumstances in that case. And even if there was encouragement in

2 Erdemovic from the learned judge, Judge Cassese, for people to plead

3 guilty, such encouragement was effectively destroyed by the case of

4 Jelisic, in which the defendant pleaded guilty but, as far as everybody

5 could see, didn't exactly get a great deal of credit for having done

6 that. And so at that time this trial started, there was no substantial

7 jurisprudence with which any advocate could properly, within the confines

8 of his professional duty, could properly go to a defendant and say, "This

9 is what happens if you plead guilty."

10 So what do we have and how should we approach this particular

11 circumstance which, we respectfully submit, is, in the history of this

12 Tribunal, thus far unique, a defendant pleading guilty after the close of

13 evidence against him? What I would like to do is to draw an example from

14 the system from which I and the learned judge, Judge May come, not because

15 I'm necessarily advancing it as the national judicial system which is

16 inevitably the best of the lot, but because the way in which the English

17 system deals with this particular problem is one which might assist the

18 Tribunal as a whole to develop its jurisprudence in relation to guilty

19 pleas.

20 When you come to sentence a defendant under the English system,

21 there are three possibilities as to how the basis for sentence may be

22 determined. The first is where a defendant pleads not guilty to the

23 crimes alleged against him and there is a trial before a jury. It results

24 in conviction, and the judge is then able to sentence the defendant

25 according to the evidence heard at that trial. In those circumstances,

1 the defence has very little scope for advocating any particular view of

2 the facts. The judge has heard the evidence, can make his own mind up as

3 to how serious the facts which have been heard are, and can sentence

4 accordingly.

5 The second circumstance is that the defendant pleads guilty and

6 accepts, without reservation, all the material and significant facts

7 alleged against him by the Prosecution, or comes to an agreement which is

8 rendered into writing on those facts. Again, the judge is fully equipped

9 to sentence accordingly at that point. There is no dispute about the

10 facts. They are known. And the learned judge can come to his own

11 conclusion.

12 It's the third circumstance, which I want to deal with in some

13 detail and which may assist Your Honours to see how this particular

14 defendant can be viewed, the defendant pleads guilty but he does so on a

15 factual basis which is not accepted by the Prosecution. Let me give an

16 example and one which is not uncommon: An assault is alleged against the

17 accused. He admits taking part in that assault but denies, as some

18 witnesses allege, that he took part in the kicking of the victim. And

19 kicking a victim in the English courts is regarded as a serious and

20 aggravating feature of an assault. The Prosecution does not accept that

21 the particular defendant was not involved in kicking, and therefore the

22 trial judge orders that there should be a trial of an issue, the issue

23 being: did the defendant kick the victim or not, or did he simply take

24 part in another way? The matter is then heard by the judge sitting alone

25 without a jury, and the judge hears evidence, prosecution evidence, and

1 the defendant himself can give evidence and call evidence.

2 At the conclusion of that hearing, the judge delivers a very short

3 oral judgement indicating what facts he found to be true and the basis

4 upon which he intends to sentence the defendant. At that point the

5 Defence can then address the judge on sentence accordingly. If he finds

6 substantially against the defendant on the facts, or completely against

7 the defendant on the facts, it is likely that the defendant will lose

8 some, if not all, of his credit for having pleaded guilty.

9 How may we examine that situation and relate it to what has

10 happened here? There has been, of course, a full contest of the

11 indictment. As regards the most serious matters, the defendant has

12 successfully defended the two counts which involve genocide. We submit

13 that the defendant has been able, through the hearing of evidence, not

14 only successfully to defend the issue of genocide but also to defend the

15 extent of his involvement in these matters. And I refer back again to the

16 way in which - and it's important to look at - the way in which the

17 Prosecution were putting the case against him in respect of his role in

18 the camp and his activities there and his activities outside the camp.

19 There are a number of grave allegations which we respectfully

20 submit now no longer need to trouble the Trial Chamber; for example, an

21 allegation that he personally killed 18 to 20 people after the Room 3

22 massacre, another allegation of an allegation of rape by him personally.

23 If one looks at paragraph 5 of the plea agreement, we respectfully

24 submit that one can see that it has come about only because we have, in

25 fact, heard the evidence, and it's quite apparent that the position that

1 we have now reached could not have been reached at the outset and simply

2 being done on the basis of written statements being provided or extracts

3 of written statements being provided to the Trial Chamber.

4 Let me give you an example: The Prosecution's case, as we

5 understood it at the outset, was that the defendant had been the commander

6 of the camp at Keraterm throughout the period of the indictment that was

7 alleged against him. We respectfully submit that, as far as that is

8 concerned, we have now been able to establish, and it is agreed, that the

9 dates of his duty at Keraterm were in fact in accord with the alibi

10 advanced by him. That we would not have been able to do but for the

11 hearing of evidence. And I remind you briefly about the substantial

12 evidence of the defendant being at the Prijedor hospital at the end of

13 July and beginning of August 1992 and evidence, some of it from a

14 Prosecution witness, putting him at a checkpoint at Hambarine prior to the

15 14th of June, 1992.

16 We respectfully submit that the defendant has by the hearing of

17 evidence been able to achieve a factual position, as well as a position on

18 the indictment that would not have been available to him at the outset.

19 So what the hearing of evidence has achieved here is that we've been able

20 to arrive at a position on the facts that lies between the positions held

21 respectively by the Defence and Prosecution at the outset of this case.

22 In those terms, a proper reflection of what happened and what the

23 defendant's role in what happened has only been achieved by being able to

24 hear that evidence. The consequences of that are that the Trial Chamber

25 is enabled, having heard the evidence to arrive, firstly, at a position

1 which results from what is called often and one hears frequently, the

2 truth-finding process. That's only been able to be achieved by the giving

3 of evidence, and it's achieved what ultimately must be seen as a just

4 position, because it's only justice if a man is sentenced on the basis of

5 facts which are established and are accepted as being an accurate and

6 proper reflection of those facts.

7 For those reasons, we respectfully urge the Trial Chamber to say

8 that taking all those circumstances into account, that he can properly be

9 treated in the unusual and particular circumstances of this case, and it

10 may be that you would want to say this should not necessarily be taken as

11 a green light for everybody to have a trial and then put their hands up at

12 the end of it, but in the particular circumstances of this case, we would

13 invite you to say that he can properly be treated on this count of

14 persecution as if he had pleaded guilty at the outset and had subsequently

15 had a trial on issues of fact alone.

16 As I say, it may well be that Your Honours would want to take an

17 opportunity to develop somewhat the jurisprudence of the Tribunal to

18 enable advocates who defend in this Tribunal to have a clear road map so

19 that we can deal with situations where an accused admits significant facts

20 which place him within the purview of a crime but where they significantly

21 differ from a version being asserted by the Prosecution. It was for that

22 reason that I told you of the English system. There may be aspects of

23 that which can be improved upon, but I suggested it as perhaps - and I

24 hope - a helpful framework on which to build some jurisprudence or even

25 formal rules relating to guilty pleas. I rely also on the submissions

1 we've made in writing to this particular aspect.

2 I turn now to issues of fact in the case. There are, of course, a

3 number of factual issues which have been raised in the sentencing brief of

4 the Prosecution. The position that we invite Your Honours to take is set

5 out in our sentencing brief. In essence, it is that where facts are

6 asserted which are at variance with the plea agreement, it should be the

7 plea agreement which prevails. We rely in particular on the course that

8 Your Honours adopted in the Todorovic case, which was to refuse both

9 parties to call witnesses who on the face of it were going to counter

10 matters that are going to be set out and agreed in the plea agreement.

11 I want now, as I indicated in the sentencing brief, just to deal

12 with a number of matters of fact in relation to the Prosecution brief.

13 Can I, first of all, deal with paragraph 27 of their brief, please.

14 The assertion is made that -- and the impression left is that the

15 business of rounding up prisoners, arresting people, and confining them in

16 Keraterm was an exclusively and always was an exclusively Serb activity.

17 Your Honours will recall that there was evidence in the case that one of

18 the people who eventually ended up as a victim of murder was a non-Serb

19 policeman, a Croat by the name of Drago Tokmadzic, who was at one stage

20 involved himself in the rounding up of people and bringing them to

21 Keraterm. So there was a time when some people who were not Serb were

22 perfectly happy to be involved in the process that was taking place.

23 Events consumed them as well; of that there is no doubt. But to portray

24 this as an exclusively Serb activity is, we respectfully submit, somewhat

25 misleading.

1 Paragraph 28. The Prosecution refers to the headquarters of

2 Keraterm camp. With the very greatest of respect to them, that is to give

3 it a name that really over-dignifies it and really does not matter the

4 physical reality of that particular building, a weigh hut. Your Honours

5 have photographs of that produced by both the Prosecution and the Defence,

6 and you can look at it.

7 The fact that it was a weigh hut and the size it was goes, we

8 submit, to indicate what the real importance of this security detachment

9 was, the real importance of Dusko Sikirica and his men. They were made to

10 go and sit in a little weigh hut at some distance from the main building.

11 Meanwhile, the inspectors who were responsible for conducting interviews

12 and interrogations with those detained, they occupied and had full run of

13 the proper offices in the main building. The headquarters was, in

14 reality -- the headquarters of this facility was, in reality, at

15 Prijedor II police station, the place in which Zivko Knezevic had his

16 office and from where he, we submit, administered Keraterm facility,

17 Keraterm camp.

18 The Prosecution rely on three witnesses in relation to describing

19 it as the headquarters. I think, if I'm not mistaken, that we didn't

20 actually hear the word "headquarters" used by witnesses to describe that

21 particular weigh hut.

22 I'm not going to read the particular transcript references that

23 are relied upon by the Prosecution, but I urge Your Honours to look at it

24 because you will see that they are remarkably innocuous in the way in

25 which they describe that particular building. So to dignify it with the

1 word "headquarters," we submit, is a serious case of over-egging the

2 pudding.

3 Also in paragraph 28, it is asserted that he was in a position of

4 superior authority to everyone else present in the camp. With great

5 respect, that is simply not in accordance with the evidence in this case.

6 He cannot be superior to the inspectors who were present in the camp

7 carrying out the interrogations since they were officers of superior rank

8 in the same force as he. And Your Honour will recall hearing evidence

9 from one of those gentleman as to the way in which they would come and go

10 into the camp. He cannot be, we submit, superior to the military because

11 the military are plainly not under his command and plainly he is not a

12 military officer able to give orders to the military.

13 Of course he has a duty to visitors, to keep out those who are not

14 authorised and so on. But visitors are not under his command. His duty

15 in relation to visitors extends only thus far: to keep them out if they

16 are not authorised.

17 Also in paragraph 8 --

18 JUDGE ROBINSON: I imagine, Mr. Greaves, that what was meant was

19 that he had a position of superiority in relation to those who were more

20 or less permanently in the camp as distinct from those who came and went.

21 MR. GREAVES: Yes. And plainly those who are part of the shifts

22 fall into that category, although with the caveat that we have raised in

23 our written brief about the actual nature, as opposed to the putative

24 nature, of that authority.

25 As far as the comment about clear lines of command and control are

1 concerned, again we respectfully submit that that must be read very

2 carefully in the light of the plea agreement in fact reached as to what

3 the nature of his role was and the nature and extent of his authority.

4 Paragraph 29, the Prosecution assert -- make an assertion about

5 property being confiscated. I don't dispute that. Can I remind the Trial

6 Chamber that in relation to one item in particular, we heard quite a lot

7 of evidence that identity cards were taken from detainees and subsequently

8 were returned to them.

9 The observation is made that many of the detainees had any

10 remaining personal property confiscated and then were beaten. It's right

11 that two people whom the Prosecution single out mentioned the existence of

12 beatings upon arrival. We would respectfully submit that it is remarkable

13 in this case how little evidence, in fact, was given by all of the people

14 who were detainees at Keraterm of being beaten upon arrival, and I am

15 able, because I was involved in the Celebici case, to contrast those two

16 cases where almost universally witnesses, Serb witnesses who were detained

17 by the Muslims, were in fact beaten at a particular wall upon arrival.

18 This case, we submit, is not insignificant for the fact that remarkably

19 little evidence was in fact given of people being beaten upon arrival.

20 Indeed we would submit that it was the exception, not the rule.

21 Paragraph 31, the second sentence and third sentence uses the word

22 "inspectors" in inverted commas, as if there was somehow not a proper

23 description of those people. Again, you'll hear -- you've heard from many

24 people who were interviewed, interrogated at Keraterm who described the

25 people doing it as such, and indeed you heard from one individual who did

1 that job. And we respectfully submit that it's a proper description of

2 what their position was. It wasn't challenged during the course of the

3 case as being -- by the Prosecution as being a proper description.

4 The assertion is made that beatings regularly accompanied

5 interrogation. We submit that that is not the evidence in the case, and

6 it is not supported by the transcript of this matter. There were, of

7 course, one or two witnesses who spoke of having been hit by a guard

8 whether going to or from an interrogation, and one or possibly two, as I

9 recall it, spoke of some physical ill-treatment during the course of

10 interrogation. However - and Your Honours will recall there was some

11 considerable evidence given by witnesses about interrogations - that was

12 certainly not, we submit, the regular accompaniment to interrogation. Had

13 it been so, the issue of torture might have been a quite different one in

14 the event the Prosecution had to concede that torture was not one -- a

15 case that was supported by the evidence. Why did they do that? They did

16 so because there wasn't a pattern of beatings during interviews,

17 interrogation, and so I'd invite Your Honours to ignore that particular

18 point.

19 Paragraph 32 asserts that after being beaten, detainees received

20 no medical treatment. Again, with great respect to the Prosecution, that

21 is not accurate. We have heard from a number of witnesses, and in

22 particular the Prosecution tried to rely on the activities of Dusko

23 Sikirica at the hospital as founding part of the case against him -- at

24 the hospital when some detainees were in fact taken there for hospital

25 treatment. No doubt Your Honours will recall that evidence.

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1 Paragraph 33. Whilst one doesn't dispute that necessarily as a

2 proposition, I would invite Your Honours to remember the evidence of

3 Witness Z and the evidence of a number of detainees who spoke, for

4 example, of bodies being collected in the hearse which was set aside for

5 the particular purpose of collecting bodies and taking them before the war

6 to the cemetery and of those detainees who had been killed who were spoken

7 of by Witness Z as having been given if not perfect burials, at least

8 dignified and decent burials in a regular cemetery.

9 That, of course, is not to avoid the point that many people were

10 killed, and we accept that, and many people who were killed did not

11 receive such burials. But that particular aspect should be viewed in

12 full, not on the selective basis that we say the Prosecution have

13 advanced.

14 Finally paragraph 34. The Prosecution use the phrase "The Serb

15 authorities fired on the occupants of Room 3 with machine-guns." Again,

16 the evidence on exactly where and what their position was, the position of

17 the perpetrators of that particular massacre, is not, we submit, on the

18 evidence clear, and it is not proved beyond reasonable doubt that it was

19 the authorities. It may equally have been a freelance activity conducted

20 for whatever reason - we don't know - by those who decided to come in and

21 perpetrate it. We would respectfully submit that to use the phrase "the

22 Serb authorities" is erroneous on the evidence in this case.

23 I turn now briefly not to the Prosecution sentencing brief but to

24 some remarks made about conditions. And again I shall be, hopefully,

25 brief.

1 Firstly, submissions in relation to the food. My learned friend

2 Mr. Ryneveld asserted that you've heard the Prosecution evidence about

3 that. It's unfortunate that he chose to avoid mentioning the fact that

4 there was a certain amount of Defence evidence given about that, which no

5 doubt assisted him and his colleagues to come to the conclusion that they

6 did on the plea agreement concerning food.

7 Finally this: Observations are made about his duty to prevent

8 people from coming in. Of course that is the job of a commander of

9 security. That is plainly right. But again, if one is sentencing this

10 man on the basis of what he did or failed to do, one must ask this

11 question: Are duty and ability the same thing or different things? He

12 may have had the duty, but in our submission, his ability to prevent

13 people from coming in was seriously restricted.

14 If you take an individual like Zoran Zigic, who is on trial in

15 another case, and you are faced with an individual of murderous bent like

16 that, a man who plainly had a substantial enthusiasm for killing, on the

17 evidence in this case, it takes a very brave man indeed to stand up to him

18 and say, "You're not coming in here today." I wonder how many of us in

19 this room would have felt able to do that, faced with a man of the

20 disposition and character of Zoran Zigic. I suspect it might be

21 remarkably few.

22 Moving on now to some brief remarks about Dusko Sikirica. This is

23 a matter that I've discussed with my learned friends. I don't think it is

24 formally in evidence, but I think it the subject of no contest by them,

25 that the defendant was a man of otherwise good character in the sense of

1 never having been convicted of offences of any kind in the past. He is a

2 family man, two children, both young, both of school age.

3 And Your Honours will also wish to bear in mind in sentencing him

4 the character evidence given the Defence case. And I don't intend to

5 repeat that. Your Honours will know it.

6 It would be stupid to suggest that Keraterm was a holiday camp,

7 and I don't do so for a moment, and I don't want anybody to think that in

8 relation to what we have asserted in the Defence brief or what we say here

9 that it was anything other than a place that was thoroughly unpleasant.

10 Nevertheless, one must remember a number of features.

11 Firstly, in relation to Dusko Sikirica, this particular camp had

12 been established some weeks before he arrived and was placed there to

13 work. Therefore, it can properly be said that the regime which had been

14 established was not one of his creation. Therefore, when he was assigned

15 to Keraterm camp, a culture already existed by the time he got there which

16 was one which would no doubt, Your Honours may feel, be extremely

17 difficult to change once it had been established, particularly if you are

18 given the extent of authority which he was given by Zivko Knezevic.

19 We respectfully submit that because of the extremely limited

20 authority that he was given and because there was already a culture of

21 ill-treatment in place when he arrived there, it was always going to be

22 difficult, if not impossible, for someone of his authority to change that

23 fact. Once the pattern had been established of people such as Zoran Zigic

24 doing what they did, then it was always going to be an uphill task for the

25 most morally courageous individual to change events at Keraterm.

1 We respectfully submit that the actual authority and actual role

2 of Dusko Sikirica was such that there was never a prospect of him being

3 able to do very much about it. Of course, by acts of negligence, in the

4 sense of not doing things, others think that that is the green light for

5 them to act in a similar way, and that is one aspect of why he has had to

6 plead guilty. But we respectfully submit that the authority that he in

7 fact had, and we would submit has to be sentenced upon, was so limited

8 that it was almost non-existent.

9 This leads me to a number of comparisons which we would seek to

10 draw between this case and others. We're conscious, of course, that in a

11 number of judgements, the Tribunal has indicated that it may be invidious

12 to draw comparisons between individual cases, and that is probably so

13 because there are many different cases which come before the Trial

14 Chambers and they depend on essentially different facts.

15 Having said that, we would respectfully remind Your Honours of a

16 number of matters that relate to two cases in particular. The first is

17 the Celebici case, both in its judgement and its appeal. Your Honours

18 will recall or be able to refer back to, in particular, paragraph 717 to

19 721. Whilst that, no doubt, in the appeal judgement sets out the care

20 with which one has to approach other cases in drawing comparisons, we

21 respectfully submit that if there are comparable facts, then it can be

22 appropriate to make comparisons and to draw similarities between

23 individual cases. And we do submit that both the Celebici case and the

24 Todorovic case are cases which can properly fall into that category.

25 Your Honours, at paragraph 717, the Appeals Chamber in the

1 Celebici appeal indicated that it had a considerable amount of -- the

2 Trial Chamber has a considerable amount of discretion in determining

3 appropriate sentencing. "This is largely," it said, "because of the

4 overriding obligation to individualise the penalty to fit the individual

5 circumstances of the accused and the gravity of the crime. To achieve

6 this goal, Trial Chambers are obliged to consider both aggravating and

7 mitigation circumstances relating to an individual accused. The many

8 circumstances taken into account by Trial Chambers to date are evident if

9 one considers the sentencing judgements which have been rendered.

10 Sentences imposed have been varied."

11 And it then sets out the range of sentences that have been

12 imposed.

13 It goes on in paragraph 719:

14 "It is noted that each party in this case urges the Appeals

15 Chamber to compare their case with others which have already been the

16 subject of final determination in order to persuade the Appeals Chamber to

17 either increase or decrease sentence. Although this will be considered

18 further in the context of individual submissions, the Appeal Chamber notes

19 that, as a general principle, such comparison is often of limited

20 assistance."

21 And this is an important matter:

22 "Whilst it does not disagree with the contention that two accused

23 convicted of similar crimes in similar circumstances should not, in

24 practice, receive very different sentences, often the differences are more

25 significant than the similarities, and the mitigating and aggravating

1 factors dictate different results. They are not reliable as the sole

2 basis for sentencing an individual."

3 So in our respectful submission, there can be, in an appropriate

4 case, a comparison made and comparisons drawn to the assistance of a

5 defendant.

6 Further on in that judgement - and this again is a relevant matter

7 to this submission - at paragraph 756, the Appeals Chamber said this:

8 "Public confidence in the integrity of the administration of

9 criminal justice, whether international or domestic, is a matter of

10 abiding importance to the survival of the institutions which are

11 responsible for that administration. One of the fundamental elements in

12 any rational and fair system of criminal justice is consistency in

13 punishment. This is an important reflection of the notion of equal

14 justice. The experience of many domestic jurisdictions over the years has

15 been that such public confidence may be eroded if these institutions give

16 an appearance of injustice by committing substantial inconsistencies in

17 the punishment of different offenders where the circumstances of the

18 different offences and of the offenders being punished are sufficiently

19 similar that the punishments imposed would, in justice, be expected to be

20 also generally similar.

21 And the following two paragraphs of that judgement are also

22 relevant.

23 We submit that that's a perfectly proper set of principles to

24 apply to the issue of sentence. And it may be appropriate perhaps after

25 lunch - I don't know - to deal with the two cases in which I say there are

1 similarities and upon which the Defence would draw to assist Your Honours.

2 JUDGE MAY: You can deal with this, Mr. Greaves, which is: If

3 you're going to rely on Todorovic, that was a completely different case.

4 It was not a camp case. And also, significantly, there was powerful

5 mitigation given the time with which the plea was entered and the fact

6 that there was substantial cooperation, factors which are missing in the

7 current case.

8 MR. GREAVES: I'm going to ask Your Honours to let me try and

9 develop an argument against that proposition.

10 JUDGE ROBINSON: Yes, and you will do that in the afternoon. Very

11 well. We'll take the break. We'll resume at 2.30.

12 MR. LAWRENCE: Can I respectfully ask the Chamber how late it will

13 be sitting tonight?

14 THE INTERPRETER: Microphone, please.

15 MR. LAWRENCE: I'm sorry.

16 JUDGE ROBINSON: I think it will be in the region of 4.00, 4.15,

17 and we will be sitting tomorrow too.

18 MR. LAWRENCE: Thank you very much.

19 --- Luncheon recess taken at 12.58 p.m.

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1 --- On resuming at 2.34 p.m.

2 JUDGE ROBINSON: Yes, Mr. Greaves.

3 MR. GREAVES: Your Honour, the learned Judge Judge May observed

4 before lunch that there were differences between the Todorovic case and

5 the instant case and cited three matters which I'll deal with, if I may.

6 The first is the issue of when the plea was made. I've already addressed

7 you on that, and I'm not going to go over old ground.

8 As far as the second matter that the learned Judge mentioned, the

9 issue of cooperation, I'm not in a position, and I accept that -- not in a

10 position to advance to you substantial cooperation within the meaning of

11 the -- within the context of the jurisprudence of the Tribunal.

12 The third observation that the learned Judge made was that this

13 was not a camp case, that Todorovic was not a camp case. If I can deal

14 with that.

15 Yes, it wasn't a camp case, but it was a case of persecution, and

16 so a valid comparison can be made with the context into which Keraterm

17 fell within the persecution that took place on a wider scale in Prijedor,

18 and a valid comparison, we submit, can be made between that and the role

19 of Todorovic in the wider persecution that took place and involved a

20 number of other features well above that of simple detention and

21 ill-treatment within a detention facility.

22 The first matter which I would seek to draw a valid comparison

23 between this defendant and the defendant in Todorovic: Todorovic occupied

24 the position of chief of police in Bosanski Samac and was indeed a member

25 of the Crisis Staff. Now, if one was to extrapolate that out into the

1 context of Prijedor, the person who occupied a similar position in

2 Prijedor was the man called Simo Drljaca, a man who was formerly an

3 indictee of this Tribunal, who has subsequently died. He was both the

4 chief of police and a member of the Crisis Staff in Prijedor.

5 So the position which Todorovic occupies and the features which

6 aggravate his participation in persecution are the same as those of Simo

7 Drljaca. This defendant is very much further down the tree compared with

8 Simo Drljaca and is certainly and cannot properly be described as being

9 anything to do with the authorities who are controlling and organising

10 what is taking place. So there is -- it's not a similarity, but it's a

11 proper and valid point of comparison that we draw.

12 The defendant Todorovic exercised a far greater, therefore --

13 greater and wider authority than this defendant, and one only needs to

14 look at paragraphs 42 to 47 of the judgement that Your Honours gave in

15 that case to see the wider context in which that particular defendant was

16 involved as compared with the one single facility, Keraterm, in which this

17 defendant with what we say is limited authority is dealing.

18 There are other comparisons which one can draw and which are, we

19 submit, relevant and proper to consider. First of all, the defendant in

20 this case did not take part in the sense of being an organiser or leader

21 of the armed takeover of Prijedor. He plainly was a reserve policeman at

22 that time and played his role as a reserve policeman. But I think that at

23 paragraph 35 of the judgement that you gave the Todorovic case, it may be

24 inferred that you were dealing with a rather different participation by

25 that defendant in the armed takeover of power.

1 Secondly, the admission that the defendant Todorovic made

2 concerning murder. I'm not going to go over the facts of that, but the

3 reason why the Defence set out in its sentencing brief the proposition

4 that the murder to which he has admitted was one which was, on the face of

5 it, one which did not -- was not accompanied by prior humiliation and

6 degradation of the victim and nor was there any evidence of the man

7 suffering, was to draw a valid distinction between the nature of the

8 murder in this case and the nature of the murder in Todorovic.

9 The next valid point of comparison that one can make: Although

10 there plainly were, as is agreed in the plea agreement, rapes which took

11 place in Keraterm, there is no suggestion that this defendant took part in

12 them and indeed knew -- or knew of them. That is, of course, a very

13 different position than the case of Mr. Todorovic, who -- and it's set out

14 again - and I don't need to go into the detail of it - at paragraphs 37

15 and 38, some of the aspects of that. That is absent in this case, so one

16 can draw, we say, a valid comparison with the nature of persecution in

17 this case. And again paragraphs 39, 40, and 41 of that judgement.

18 So if one can draw the strand together, the defendant Todorovic

19 is -- because his superior rank, superior position is involved in a much

20 wider aspect of persecution. And if one was then to take it to the -- and

21 compare it to the case of Prijedor, it would be as if he was responsible

22 for the setting up of Keraterm, Omarska, Trnopolje, the ethnic cleansing

23 which took place in Kozarac, and all the other aspects of the persecution

24 which took place. By using that sort comparison, one can look at the more

25 confined role of the defendant Dusko Sikirica and see where it is that he

1 fits into the -- a similar scheme of things.

2 The other case which -- with which valid comparison, we submit,

3 can be drawn is the Celebici case. That was a camp case, and it involved,

4 as far as the command of the camp was concerned, a man called Pavo Mucic.

5 Now, I'm aware that that's a matter that's pending before this Trial

6 Chamber as well, so I hope that what I say is appropriate, but there were

7 similarities between that case and this.

8 Your Honours just give me a moment, please.

9 If Your Honours recall from the sentencing judgement in -- or the

10 judgement in the Trial Chamber, paragraph 1241:

11 "Celebici prison camp was established to detain those Bosnian

12 Serbs in the Konjic municipality whose loyalty to the State of Bosnia and

13 Herzegovina was in doubt.

14 "The solution to the perceived threat from those arrested during

15 military operations by the Bosnian government forces at, inter alia,

16 Bradina and Donje Selo, was to keep them detained in the Celebici prison

17 camp under the watchful eyes of Bosnian guards who would ensure that they

18 would no longer constitute security risks or any danger to the state. The

19 Trial Chamber has found that the facilities improvised in the Celebici

20 prison camp were not satisfactory, being far from adequate for the number

21 of detainees. Those who were responsible for the detention of the

22 prisoners clearly did not consider the question of suitability of the

23 facility, which was not used as a prison in times of peace. Moreover, the

24 detainees were Bosnian Serbs and those identified as being in opposition

25 to the survival of the independent Bosnian state. Those superintending

1 the prison camp were soldiers of this nascent state, some of whom were

2 zealous for its survival and positively resentful and revengeful for the

3 real or imagined activities --"

4 THE INTERPRETER: Would you please slow down, Mr. Greaves, when

5 you're reading.

6 MR. GREAVES: "-- real or imagined activities of their opponents.

7 The Trial Chamber found that the conditions of detention in the Celebici

8 prison camp were harsh and indeed inhuman; the feeding conditions were at

9 starvation level; medical health and sanitary conditions were inadequate

10 and indeed deplorable; the guards were hostile, and severe beatings,

11 torture and humiliation of detainees were the norm. Some guards

12 experimented punishment methods on detainees, and the death of detainees

13 was a common occurrence and not a surprise. No one appeared to care

14 whether the detainees survived. These were the conditions perpetrated by

15 Zdravko Mucic, who was the commander of the Celebici prison camp after its

16 creation.

17 "There is evidence that Mr. Mucic selected the guards. He also

18 chose his deputy, Hazim Delic, in apparent demonstration of the type of

19 discipline he expected in the prison camp. In addition, the prison camp

20 was set within the Celebici barracks, where soldiers of the Bosnian army

21 had free access.

22 "The uncontradicted evidence before the Trial Chamber is that

23 Mucic was the commander of the camp, with overall authority over the

24 officers, guards, and detainees, and the person to whom the officers and

25 guards were subordinate. Mr. Mucic was responsible for conditions in the

1 prison camp and for the unlawful confinement of the civilians there

2 detained. He made no effort to prevent or punish those who mistreated the

3 prisoners or even to investigate specific incidents of mistreatment,

4 including the death of detainees. Indeed, there is evidence that he was

5 never in the prison camp at night, when mistreatment was most likely to

6 occur."

7 Your Honours, we submit that, with some obvious distinctions as to

8 elements of personal participation by the defendant Dusko Sikirica, there

9 are considerable similarities between what took place in Celebici and what

10 took place in Keraterm. It's right to say that the numbers of people who

11 were detained in Celebici was rather less. My recollection is that it was

12 in the middle hundreds, around 500 or so, as opposed to the 1.500 or so

13 who were in Keraterm. But, on the other hand, it went on for much

14 longer. It went on from early May until the middle of November, 1992.

15 So that there are proper similarities that can be seen between

16 those two cases, and there is one in particular which may be thought to be

17 one which has a resonance here in this case, and it's this: Mucic was

18 plainly someone who neglected his duties as much as anything, would

19 disappear when things got difficult, would go off either fishing or to see

20 his family, as was observed by the Trial Chamber, and it was through

21 neglect as much as anything, rather than doing positively things to

22 encourage mistreatment to take place, that his responsibility in

23 particular arose.

24 In our submission, there are, as we say, very considerable

25 similarities between those two counts. One difference which might be

1 drawn is that it's implicit in what the Trial Chamber said that Mucic had

2 the power of punishment over the guards who were in that camp; that is to

3 be contrasted with this case, where it is agreed between the parties that

4 the defendant had no power to punish.

5 That's a very important power, of course, because in the absence

6 of a power to punish there and then, it becomes extremely difficult to

7 anybody to exercise proper authority, and in a sense you are sending

8 someone to do a job without giving him the appropriate powers to do it.

9 And that's a point that we make in respect of Sikirica, which is

10 that he wasn't given the tools to do the job properly. He was given 15

11 men to look after 1.500. And any view of Zivko Knezevic would suggest, we

12 submit, that he was a man who really wasn't interested in giving to

13 Sikirica - or whoever it was at Keraterm - wasn't interested in giving

14 them the appropriate powers to punish, the appropriate powers to

15 administer, the appropriate powers to run the place as it should have been

16 run. It then should come as no surprise that the kind of regime grows

17 up - before the defendant arrives - grows up that leads to the kind of

18 events of which we have heard so much.

19 Your Honour, we draw those comparisons because we respectfully

20 submit that they are valid comparisons and one can look at where do people

21 fit into the various hierarchies, where do they fit into the context of

22 various places? Of course, we don't have the advantage in this case of

23 the defendant cooperating and giving evidence for the Prosecution. I

24 accept that entirely. But if one takes -- to a certain extent balances

25 out the various distinctions between Todorovic and Dusko Sikirica, then

1 some semblance of similarity can begin to appear, we submit, and it is

2 that element and the comparisons that we respectfully draw between that

3 case and Celebici as well which leads us to advocate the sentence of 10

4 years that we do.

5 Could I now just briefly go into closed session, please?

6 JUDGE ROBINSON: Yes. Closed session.

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11 [Open session]

12 MR. GREAVES: There are two short matters. And I've been slightly

13 longer than I've anticipated, which Your Honours can properly take into

14 consideration. The first is you have a report from Mr. McFadden. It's

15 very short, but it's succinct and to the point, indicating that he's been

16 a perfectly good prisoner whilst in detention at the Detention Unit.

17 The second matter is this: He has throughout the trial, I hope,

18 behaved exemplary, in an exemplary fashion, has not shown disrespect in

19 any way to the Tribunal, and although my back is always turned to him, I

20 hope that I can fairly say that he has shown proper respect towards the

21 Tribunal at all times.

22 Your Honours, it's at this point that I would ask for him to be

23 given leave, as you've indicated you will, to speak, and then I'll have

24 just a very brief thing to say and then I will sit down.

25 JUDGE ROBINSON: Yes. Mr. Sikirica, you may speak.

1 THE ACCUSED SIKIRICA: [Interpretation] Thank you, Your Honour. To

2 begin with, I wish to thank you for giving me this opportunity to address

3 you. I hope you will not mind my reading, because it will be very hard

4 for me to say what I have to say otherwise. Thank you.

5 Before the war in Bosnia, we all lived together in good

6 neighbourly relations regardless of who or what we were. Prijedor was a

7 good place to live in in the former Yugoslavia and to live together. I

8 had many friendships, many of which transcended ethnic differences.

9 When the war broke out, we had to go where we were told to go

10 because we had no choice. We could refuse to obey orders -- do I have to

11 repeat? Unfortunately, when the war broke out, we had to go where we were

12 told to go. We didn't have much choice. We could either obey orders,

13 refuse to obey them, or desert. I was sent to Keraterm, although I would

14 have preferred to go somewhere else at the time, because to go and work in

15 Keraterm was the worst thing that could have happened to me.

16 After the events in 1992, I personally had occasion to see the

17 consequences suffered by Serbian refugees who arrived in Prijedor because

18 of similar events elsewhere, and I was able to imagine what the people who

19 had to leave Prijedor had to go through. I fully understand that these

20 events had destructive consequences and that they still affect Muslims

21 today, some of whom were my friends.

22 After I saw and I understood the consequences, I wish to tell the

23 Trial Chamber that I deeply regret everything that happened in Keraterm

24 while I was there. I feel only regret for all the lives that have been

25 lost and the lives that were damaged in Prijedor, in Keraterm, and

1 unfortunately, I contributed to the destruction of these lives.

2 I am especially sorry that I did not have enough moral courage and

3 power to prevent some or all of the terrible things that happened. I

4 would like to be able to turn back the clock and act differently.

5 I understand that by taking responsibility for my role in these

6 events I have to be punished, and I hope that what happened to me will be

7 a good lesson to anyone anywhere who finds himself in similar

8 circumstances in the future, and I truly hope that I will be forgiven,

9 although I do understand that some will find it very difficult.

10 I also hope that my family will forgive me, because through my

11 thoughtlessness, I have brought their lives into a difficult situation. I

12 hope that what happened to me will contribute to the faster return of

13 Muslims to their homes and to the faster and more efficient reconciliation

14 of all peoples.

15 I understand that as a consequence of this, I will be absent from

16 Prijedor for a long time, but let me assure you, Your Honours, that when I

17 do return home one day, I will be the one to speak with the most

18 conviction against such folly, and I hope that you will accept this --

19 that you will accept my regret and my remorse for everything that I did

20 and everything I did not do.

21 I feel no self-pity because I know that this is an experience I

22 have to go through, but I trust that Your Honours will understand when I

23 say that I deeply regret what has happened and that I regret that I cannot

24 be with my family in my home. I know that it is always difficult to find

25 enough words and the right words to express one's sorrow in such

1 circumstances, but I hope that Your Honours will understand me and reach a

2 just decision. Thank you.

3 JUDGE ROBINSON: Thank you. You may sit.

4 Mr. Greaves, yes.

5 MR. GREAVES: Your Honour, the final matter is simply this: that

6 the Prosecution adverted to what value should be placed on a guilty plea

7 in the absence of remorse. I'm not going to address you as a jury. It's

8 for you to make your minds up what value you place on what the defendant

9 has just said, but I urge you strongly to take it into account.

10 For all the reasons that we've urged, we respectfully submit that

11 an appropriate sentence in this case is one of ten years and that that

12 would justly meet all the circumstances which pertain to this particular

13 defendant.

14 JUDGE ROBINSON: Thank you, Mr. Greaves.

15 Mr. Petrovic.

16 MR. PETROVIC: [Interpretation] Thank you, Your Honour. Your

17 Honours, Defence for the accused Damir Dosen has submitted their written

18 sentencing brief dealing in detail with the matters which we believe were

19 important for reaching a decision on the sentence. Now, without repeating

20 what has been covered in our written brief, the Defence now wishes to

21 point out certain relevant aspects.

22 You have in front of you, Your Honours, the accused Damir Dosen

23 born in Prijedor in Bosnia and Herzegovina. He is now aged 34, and at the

24 time of perpetration of the acts, he was 25 years old. He has been now in

25 detention for two years in the UN Detention Unit. He has pleaded guilty

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1 to count 3 of the second amended indictment.

2 The Defence will now point out the circumstances which it deems

3 relevant to the sentencing decision, all with regard to his guilty plea of

4 the 6th of September this year.

5 Before this Tribunal in various cases, a wide range of views have

6 been expressed on the events that took place in Bosnia and Herzegovina in

7 1992. They are often confronted views, but together they present a fairly

8 clear picture of the events at the time. After almost 50 years of

9 harmonious life in the territory of the former Yugoslavia, almost

10 overnight great changes occurred in this society and in the minds of

11 people. Nationalist oligarchies in all peoples sewed the seeds of

12 internecine and hatred with their unscrupulous propaganda as witnessed by

13 one of the witnesses of the Prosecution. They persuaded people that

14 peaceful coexistence with other peoples was no longer possible, that it

15 was necessary to draw borders and separate themselves from others. They

16 tried to persuade people that the only choice was to fight or to die.

17 Only a few people were able to get away, find shelter, and avoid

18 the horrors of the war. Everyone who remained at home could not isolate

19 themselves from the war turmoil and the political events, and by force of

20 circumstance, many of them were mobilised against their will and pushed

21 into the evil of war which took over this territory.

22 A typical example of this is the period from the beginning of

23 April 1992, when complete chaos and anarchy ruled in the entire territory

24 of Bosnia and Herzegovina. The same happened throughout that country.

25 Law and order ceased to exist, and human virtue and goodness ceased to

1 exist and gave way to primitivism and deep hatred. This rage left no

2 place for goodness, and the voice of the individual could not be heard

3 because it was deafened by the choir of hatred. This is the place where

4 Damir Dosen found himself, unemployed, a simple soldier without rank,

5 assigned to reserve police forces, and this is the man who is now before

6 you, Your Honours, to bear his share of the burden and punishment for what

7 he has done.

8 Before the beginning of this case, in the indictment and in his

9 opening statement, the Prosecution claimed that Damir Dosen was the leader

10 of the shift in Keraterm, that he personally participated in mistreatment

11 on at least seven occasions, that he encouraged guards on his shift to

12 beat up and torture people, and he willingly allowed them to do it. At

13 that time, the Prosecutor was maintaining that the accused, with his own

14 behaviour, set a very bad example when he omitted to punish the guards

15 under his command for the crimes they perpetrated in the sense of

16 Article 7(1) of the Statute.

17 Regardless of this, independently of this, rather, there were four

18 counts of the indictment against the accused for cruel treatment and

19 torture, and he was acquitted of these counts by a decision of this Trial

20 Chamber. With such counts in the indictment charging him with a key role

21 in mistreatment of non-Serbs and ethnic cleansing of non-Serbian

22 population in the Prijedor municipality, the accused Dosen, at the

23 beginning of this case, had no choice but to start with the proceedings

24 and attempt to prove his innocence of those counts.

25 As it transpired with the plea of the 6th of September, the --

1 most of the charges contained in the indictment are not contained in the

2 plea agreement, and they're not there because they were not justified.

3 The accused Dosen had the opportunity to establish this only after

4 evidence was adduced at trial to clarify his role in the Keraterm camp, as

5 detailed in section (B) of the plea agreement.

6 As for counts 12 to 15, when evidence was adduced and the

7 Prosecution accepted the realistic role of the accused Damir Dosen in the

8 events, only then did the accused plead guilty to count 3 of the second

9 amended indictment.

10 Today, in an effort to elaborate on some mitigating circumstances,

11 the Defence is going to -- the Prosecution mentions the so-called superior

12 authority that he had in the Keraterm camp and the fact that he did

13 nothing when people were mistreated and beaten up.

14 Today, in his submissions, the Prosecutor especially elaborated on

15 the trust, the public trust, in the accused Dosen as allegedly derived

16 from his position as reserve policeman. The issue of public trust and

17 abuse of that trust are concepts which have been mentioned for the first

18 time today in this courtroom, and neither witnesses for the Prosecution or

19 witnesses for the Defence, or the Prosecution or the Defence counsel, ever

20 mentioned any situation where the accused Dosen, or any other accused in

21 this courtroom, was ever vested with public trust or ever abused it. In

22 the absence of evidence for commanding responsibility or superior

23 authority on the part of Damir Dosen, the Prosecution is trying to paint a

24 different picture of the accused Dosen, although there is no basis for

25 that either in the evidence adduced in front of this Trial Chamber or in

1 the plea agreement.

2 If we speak of the public trust that a certain function entails,

3 then it would be more appropriate to speak of a prominent citizen who was

4 elected to a certain function. It is absolutely inappropriate to speak of

5 the accused Dosen in this way, because the evidence clearly showed that it

6 was purely by legal obligation that Damir Dosen was assigned to the

7 reserve police force. And we should not forget that all this happened

8 during the state of war. This situation could be described only as

9 military duty. In no way could it be an example of public trust.

10 The Defence wishes to underline, and the Prosecution accepts, that

11 he had no special rank, but he did have some authority, they point out,

12 and he did exert it over other guards. The letter of the agreement,

13 however, leaves no doubt as to the role of Damir Dosen in the Keraterm

14 camp. In the agreement, the parties clearly agreed that he had some very

15 limited control over equally ranked guards. The allegations from the

16 agreement and the allegations from the indictment are at great variance.

17 There is no substantial authority that Damir Dosen had. The Prosecution

18 is now trying to introduce a new concept of responsibility which is not

19 based either in the Rules or in the hitherto practice of this Tribunal and

20 as such has to be rejected.

21 There is no word about that in the factual basis. All the

22 allegations by the Office of the Prosecutor cannot be considered as facts

23 established beyond a reasonable doubt. In considering aggravating

24 circumstances, the only allegations that can be taken into account are

25 those accepted in the plea agreement and in the factual basis. It is the

1 opinion of the Trial Chamber in the Celebici case that the only

2 aggravating circumstances that can be taken into account are those proved

3 beyond a reasonable doubt. In this case, those are the facts in the plea

4 agreement. Anything beyond that cannot be taken into account as an

5 aggravating circumstance.

6 The Defence also wishes to stress that there is not a single piece

7 of evidence that Damir Dosen ever personally mistreated, abused, or

8 threatened anyone, or was present when something like that was done, or

9 has ever ordered anything of the kind. The Defence maintains that there

10 are no further aggravating circumstances beyond what is contained in the

11 agreement. What is contained in the agreement is the essence of the act

12 itself and cannot be considered as an aggravating circumstance. That he

13 had command over 6 to 12 people and that he had some limited authority is

14 not an aggravating circumstance. That is the essence of his position

15 there. No other aggravating circumstances were established.

16 Keraterm did exist, but Dosen had no effective role in its control

17 and operation. The conditions in the camp were indeed very difficult, but

18 Dosen was not responsible for providing adequate food, water, medical

19 assistance, or appropriate accommodation. Beatings did occur in the camp,

20 but whenever he could, Dosen tried to prevent them. People who came from

21 outside the camp to mistreat detainees were beyond control. It was not

22 possible to prevent that.

23 The Defence believes that on the part of Damir Dosen, there is a

24 number of mitigating circumstances which must be taken into account, by

25 all means, when meting out the sentence. At the time of the perpetration

1 of the criminal act, Damir Dosen was a young man, only 25 years old. He

2 is the youngest of all the accused standing before this Trial Chamber. At

3 the time, Damir Dosen had only graduated from the primary school. At that

4 age and with such an education, we need not elaborate on his knowledge and

5 personal experience, which must have been modest.

6 At the very outset of the war, he suffered a personal tragedy. He

7 lost a son. That was compounded by the general tragedy which hit Prijedor

8 and Bosnia and Herzegovina. The death of the infant, whom he buried

9 himself, was a hard enough blow, but it was not the only one.

10 He was assigned to be a guard, a security guard, at the facility

11 where his neighbours and friends were detained only because they were

12 non-Serbs. He was not brought up to discriminate people because of their

13 ethnic background or religion. His whole life he socialised with

14 everyone, regardless of their ethnic background, and all the witnesses,

15 both for the Prosecution and the Defence, testified that this was a

16 situation which was new and difficult for him. He could not avoid the

17 military call-up. He had nowhere to hide and he had no means of avoiding

18 the mobilisation.

19 At home he had a wife who was shattered by pain. At work, he was

20 surrounded by people who had to choose between mobilisation and prison.

21 Torn by his personal tragedy and problems at work, he was at a loss. When

22 he was assigned at Keraterm, he was told that it would last only for a few

23 days and that people who were taken there to give a statement would soon

24 be released. Dosen, as a reserve policeman, did not know what was

25 happening around him. He couldn't understand. Nor did he know how long

1 it would last. As we heard from both Prosecution and Defence witnesses,

2 he believed, as they were told too, that they would just be interviewed

3 and then let go home. He saw, instead, people who were beaten, hungry,

4 ignorant of the fate of their loved ones.

5 In the conditions that prevailed, he did the only thing possible:

6 He tried to make things easier for them, to encourage them, to make it

7 possible for them to call home, to receive packages with food, sometimes

8 to go out of the premises and to use as much water as was available. He

9 also tried to protect them from mistreatment, as much as he could and

10 whenever he could, and that too was confirmed by numerous witnesses for

11 both the Prosecution and the Defence.

12 When Dosen was on duty, people were unafraid to go out and to

13 receive packages with food and clothing brought by the families. People

14 could, without fear, communicate with him, approach him, and ask him for

15 help. He was always kind and friendly when talking to them. Dosen helped

16 them get medical help, and that too was confirmed by a number of witnesses

17 for both the Prosecution and the Defence. Dosen did all of this

18 regardless of whether he had known those people from before or not. That

19 was the way he acted towards everyone: towards people from Prijedor,

20 Kozarac, Ljubija, Gomjenica, Cerik, or Puharska.

21 There are more than enough people who testified to this before

22 this Trial Chamber, and the Defence covered it in detail in its written

23 submission. You have already had opportunity to hear from over 20 people

24 who had been detained there and who, each from their own perspective,

25 described a man who helped them, protected them, and defended them. The

1 Trial Chamber will certainly remember the tears in the eyes of witnesses

2 who spoke about Dosen: Witness A, Witness DP, and Witness Husein Ganic.

3 In all three cases, those were elderly people with great life experience

4 who could not contain the tears and the emotion.

5 The Trial Chamber will remember that all of seven witnesses,

6 former detainees, testified in favour of Damir Dosen, despite the fear of

7 how their testimony would be taken by their compatriots, despite the fact

8 that some of them travelled from Sweden and other foreign countries,

9 travelling for two or three days, although they had not known Damir Dosen

10 from before the war.

11 You will certainly remember Husein Ganic, who testified as a

12 witness for the Prosecution in the Omarska case and who testified in this

13 case about how Dosen saved his and his son's life. The Trial Chamber will

14 certainly remember Petar Sovilj as well, who testified as to how Dosen

15 saved the Crnalic family, who he had not known before the attack on

16 Prijedor.

17 All of this just goes to prove the claim of the Defence that all

18 of Dosen's life before the war goes to prove -- is a mitigating

19 circumstance. None of this is a coincidence, because even at the time

20 when he worked in Keraterm, on numerous occasions Dosen expressed remorse

21 and regret over what was happening. People recognised the truth and

22 honesty of his words. Dosen felt remorse while Keraterm was still in

23 existence, while nobody else was doing so, when this was something

24 exceptional, something risky and dangerous. His remorse is deep and

25 sincere. It was deep and sincere then and it is still so today, and we

1 feel that his sincerity is a mitigating circumstance.

2 The Prosecutor today mentioned a witness who said, "Yes, they

3 deserved it," meaning the inmates of Room 3, but the Prosecutor did not

4 quote the entire testimony in which Dosen said that he regretted what had

5 happened and offered to help. All the other Prosecution witnesses who

6 testified to this, quoted by the Defence in our submission, spoke of this

7 very convincingly. They were people from various rooms to whom Dosen

8 expressed his regret in the same terms, and none of them ever mentioned

9 anything like what the Prosecutor mentioned today.

10 Your Honours, please remember Witness A, who wept in this

11 courtroom, touched by the sincere actions of Dosen in that difficult

12 situation. The witness mentioned by the Prosecutor today simply could not

13 believe that someone felt regret at the time and apologised even then,

14 thus publicly distancing himself from others. The Prosecutor also

15 mentions the psychiatric report, which erroneously represents Dosen's

16 attitude towards his guilt which he has expressed clearly here.

17 The Defence begs the Chamber to take as a mitigating circumstance

18 the character of Damir Dosen. Numerous witnesses, both for the

19 Prosecution and Defence, spoke of Dosen as a young man who behaved well,

20 who was -- who had good manners, who came from a good family, and who kept

21 company with everyone regardless of ethnic background. He was interested

22 in motorcycles and in pigeon-keeping. He was a good and a decent man both

23 before, during, and Keraterm.

24 Damir Dosen is a family man. He has a wife and two young

25 children, two sons: Mitar, aged 8 and David, aged 16 months. Mitar was

1 born under difficult wartime circumstances, and Damir a few months after

2 his arrest. The present situation in the family is only a continuation of

3 the difficult circumstances that have prevailed in his life since 1992.

4 During the war, Zoran Zigic killed for no reason at all Dosen's sister.

5 Three months after his arrest, Dosen's father died of a sudden heart

6 attack.

7 Today, Dosen's family consists of his unemployed wife, his two

8 sons, and his mother, who is mentally ill, and they live in Prijedor in

9 very difficult material circumstances. The Defence considers his family

10 circumstances to be a significant mitigating factor.

11 The reports of psychiatrists and psychologists, who are expert

12 witnesses here, show that the mental state of Dosen, both before, during,

13 and after the commission of the crimes represent a number of stresses and

14 traumas.

15 JUDGE ROBINSON: Mr. Petrovic, you mentioned that during the war,

16 Zoran Zigic killed the sister of the accused. Is that so?

17 MR. PETROVIC: [Interpretation] Yes, Your Honour. Zoran Zigic, and

18 I think we heard testimony about this, I cannot now remember, but I think

19 it was a Defence witness whose name I could mention in closed session, but

20 this was testimony that was heard here and it's a fact. It was not

21 actually his sister, but his cousin. His cousin in the first -- his first

22 cousin.

23 JUDGE ROBINSON: Can you find it in the transcript?

24 MR. PETROVIC: [Interpretation] Yes. Before the end of my closing

25 statement, I will learn the name. I will ask my colleague to find where

1 in the testimony, in the transcript we heard this fact.

2 May we now go into closed session so I can tell you the name of

3 the witness in question?

4 JUDGE ROBINSON: Yes.

5 [Private session]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [Open session]

16 MR. PETROVIC: [Interpretation] The psychiatrist and psychologist

17 who are expert witnesses found that the mental state of the accused

18 represents a whole series of multiple stresses and traumas both before,

19 during, and after the commission, and this situation seriously compromised

20 the ability of the accused to react appropriately to the circumstances in

21 which he found himself.

22 Soon afterwards, the accused started suffering from post-traumatic

23 stress syndrome. The mental status of the accused, both during the

24 commission of the acts and today, is a major mitigating circumstance. The

25 Defence feels it has proved the continuity of psychological problems from

1 the death of his first child until today, and we have written proofs which

2 we have adduced to show this.

3 Dosen has been in the UN detention centre for two years, and

4 throughout this time, there have been no complaints about his behaviour

5 and his bearing in the Detention Unit, which is a further mitigating

6 circumstance.

7 The accused Dosen pleaded guilty when he was in a situation to do

8 so in relation to acts he had actually committed, and we have already

9 spoken of the reasons for this. By pleading guilty, he has shown that

10 he's sincere and honest. He's fully aware of far-reaching consequences of

11 his plea, the consequences of his actions. In a situation in which the

12 wounds of war are still open and are still painful, only a person who can

13 understand the sufferings of others is able to stand up and admit his

14 guilt to the world.

15 This personal act by this young and courageous man is an example

16 to all those who should stand up and confess their guilt, thus

17 contributing to what is so sorely needed in Bosnia and Herzegovina today:

18 truth, justice, and reconciliation. With this act, Dosen has greatly

19 contributed to the fact that in Prijedor today, people are speaking much

20 more freely about crime and responsibility for crimes. And in this way,

21 he's contributing to the goals of this International Tribunal, and those

22 are truth and reconciliation.

23 With his guilty plea and his agreement with the Prosecution, he

24 has helped to shorten these proceedings, and in addition, he has waived

25 his right to an appeal in the event that the Trial Chamber decides to

1 pronounce a sentence within the limits set by the plea agreement.

2 I would now like to ask to go into private session for a moment.

3 JUDGE ROBINSON: Yes. Private session.

4 [Private session]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

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17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [Open session]

25 [Trial Chamber confers]

1 JUDGE ROBINSON: Are we still in closed session, Madam Registrar?

2 THE REGISTRAR: No.

3 JUDGE ROBINSON: Let's go back to closed session.

4 [Private session]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

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22 [redacted]

23 [redacted]

24 [redacted]

25 [Open session]

1 MR. PETROVIC: [Interpretation] Your Honour, I wish to ask the

2 Trial Chamber to allow Damir Dosen to address the Chamber with a few words

3 before I conclude my closing statement.

4 JUDGE ROBINSON: Yes, he may.

5 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

6 JUDGE ROBINSON: Yes, Mr. Dosen. You may speak.

7 THE ACCUSED DOSEN: [Interpretation] Thank you, Your Honours. Your

8 Honours, at the end of this trial, for the evil that happened in my town

9 Prijedor and in Keraterm, I wish to thank you for letting my voice be

10 remembered.

11 I wish to say that I was in Keraterm, that I was sent there as a

12 reserve policeman, that I spent two months there guarding innocent people

13 who were imprisoned there. I wish to say that at that time I was young,

14 thoughtless, that I had lost a son, that I was caught in the chaos of war

15 and death in which I found it difficult to find my bearings.

16 The people who are imprisoned were my fellow townspeople. They

17 were innocent and they were suffering grievously. A crime has been

18 committed against these people, and I am prepared to take my part of the

19 responsibility for this crime before God and before men.

20 I tried to help them, to make it easier for them, to talk to them,

21 to protect them. The conditions under which they were imprisoned were

22 below human dignity.

23 I am guilty because I agreed to be in Keraterm. I am guilty

24 because I did not help them more. For this I am guilty before God, before

25 those people, and before you, Your Honours.

1 I am sorry for every man who suffered, every family that lost a

2 family member, every child that has lost a father. I am sorry for every

3 mother who has lost a son.

4 I want everybody to hear my words, especially my neighbours, who

5 are imprisoned only because they were not Serbs. Evil happened, and evil

6 must not happen again, nor must it be forgotten. I am conscious of all

7 this today. I'm conscious that a man, however small and impotent he may

8 be, must not allow himself to be overcome by lack of courage and that he

9 must sacrifice himself in such situations. This is the only way in which

10 we can help future generations to overcome injustice and inhuman actions.

11 I wish to thank Their Honours and the gentlemen from the

12 Prosecution for their efforts to reach the truth and to satisfy justice.

13 I hope that the Trial Chamber will give me a chance to return to my family

14 and to my children, to return to my neighbours of all religious and

15 nationalities, and I hope that we will again have an opportunity to live

16 in my town of Prijedor with my fellow townspeople with whom I lived and

17 kept company before the war. I hope that we shall live together again in

18 harmony, as we did before the war and before the evil that befell us.

19 Thank you, Your Honours.

20 JUDGE ROBINSON: Thank you. You may sit.

21 [The accused sits down]

22 JUDGE ROBINSON: Mr. Petrovic.

23 MR. PETROVIC: [Interpretation] Your Honours, the Defence would

24 also like to thank the esteemed Trial Chamber for their dedication and

25 commitment to establish the truth and satisfy justice in this difficult

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1 case. We also wish to thank the Prosecution for their correctness and

2 cooperation, which resulted in a speedy conclusion of a complicated case.

3 The Defence is also convinced that the accused Dosen has demonstrated his

4 full respect and appreciation of this Court. And finally, the Defence is

5 convinced that there is not a single aggravating factor against the

6 accused Damir Dosen and there are a lot of mitigating circumstances. Once

7 he is released from prison, the Defence firmly believes that he will be a

8 good citizen and contribute to the reconciliation of peoples, and we

9 strongly recommend a sentence of five years.

10 JUDGE ROBINSON: Thank you, Mr. Petrovic.

11 MR. PETROVIC: [Interpretation] I should only like one more thing,

12 the report from the Detention Unit that was delivered to the Registry to

13 be tendered to the Trial Chamber.

14 JUDGE ROBINSON: Yes, it will be.

15 MR. PETROVIC: [Interpretation] Thank you, Your Honours.

16 THE REGISTRAR: This will be Exhibit number D50/2.

17 JUDGE ROBINSON: Mr. Ostojic or Sir Ivan.

18 MR. LAWRENCE: Your Honours, I'm unlikely to --

19 THE INTERPRETER: Microphone.

20 MR. LAWRENCE: -- anywhere near finish by 4.15. I don't know if

21 you want to hear me in two parts.

22 JUDGE ROBINSON: Very well. We'll adjourn, and we'll hear you

23 tomorrow at 9.30.

24 --- Whereupon the hearing adjourned at 3.43 p.m.,

25 to be reconvened on Tuesday, the 9th day of October,

1 2001, at 9.30 a.m.

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