Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5778

1 Tuesday, 13 November 2001

2 [Sentencing Proceedings]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.32 p.m.

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

7 THE REGISTRAR: Good afternoon, Your Honours. Case number

8 IT-95-8-S, Dragan Kolundzija, Dusko Sikirica, and Damir Dosen.

9 JUDGE ROBINSON: The appearances.

10 MR. RYNEVELD: If it please the Court, Dirk Ryneveld, with

11 co-counsel Julia Baly and Daryl Mundis for the Prosecution.

12 JUDGE ROBINSON: For the Defence.

13 MR. LONDROVIC: [Interpretation] Your Honour, Veselin Londrovic and

14 my learned colleague Michael Greaves for Mr. Sikirica.

15 MR. PETROVIC: [Interpretation] My name is Vladimir Petrovic,

16 attorney from Belgrade. My co-counsel is Mr. Goran Rodic, attorney from

17 Podgorica.

18 MR. LAWRENCE: For Dragan Kolundzija, Ivan Lawrence, with John

19 Ostojic.

20 JUDGE ROBINSON: Thank you very much.

21 This hearing has been convened so that the Trial Chamber may

22 deliver its Sentencing Judgement in the case of Prosecutor versus Dusko

23 Sikirica and others. The three accused were charged with crimes alleged

24 to have been committed against the non-Serb population in the municipality

25 of Prijedor in north-western Bosnia and Herzegovina, and in particular, at

Page 5779

1 the detention facility known as the Keraterm camp over a period of three

2 months in the summer of 1992.

3 Dusko Sikirica, alleged to have been the commander of the Keraterm

4 camp, was initially charged with genocide, complicity to commit genocide,

5 persecution as a crime against humanity, and violations of the laws or

6 customs of war. Damir Dosen and Dragan Kolundzija, alleged to have been

7 shift leaders in the Keraterm camp, were both charged with persecution as

8 a crime against humanity and violations of the laws or customs of war.

9 Upon a motion for acquittal at the close of the Prosecution's case, the

10 Chamber dismissed the genocide counts against Dusko Sikirica, as well as

11 the counts charging Damir Dosen with torture, inhumane acts and cruel

12 treatment.

13 On 31 August 2001, after the presentation of their defence by

14 Sikirica and Dosen, Dragan Kolundzija and the Prosecution filed a joint

15 submission notifying the Chamber of the accused's decision to plead guilty

16 to the charge of persecution. Thereafter, at a hearing before the

17 Chamber, Kolundzija entered his plea of guilty to count 3 of the

18 indictment, that is, persecution as a crime against humanity. Upon the

19 Trial Chamber's acceptance of that plea, the Prosecution withdrew the

20 remaining counts against Dragan Kolundzija.

21 On 7 September 2001, joint submissions were filed on behalf of

22 the Prosecution and the two accused Sikirica and Dosen, respectively,

23 notifying the Chamber of the decision of the accused to plead guilty to

24 the charge of persecution. Thereafter, at a hearing before the Chamber,

25 each accused entered a plea of guilty to count 3 of the indictment, that

Page 5780

1 is, persecution as a crime against humanity. Upon the Trial Chamber's

2 acceptance of the pleas, the Prosecution withdrew the remaining counts

3 against Sikirica and Dosen.

4 The sentencing hearings were held on 8 and 9 October, and in

5 addition to the closing arguments on behalf of the parties, each of the

6 convicted persons made a statement to the Chamber expressing remorse.

7 Following the practice of the Tribunal, for the purposes of this

8 hearing, I will briefly summarise the findings of the Chamber. I

9 emphasise that this is only a summary, and it forms no part of the

10 Sentencing Judgement. The only authoritative account of the Chamber's

11 determinations and of its reasons therefore is to be found in the written

12 judgement, copies of which will be made available to the parties at the

13 conclusion of this hearing.

14 This Sentencing Judgement is based upon the Trial Chamber's

15 acceptance of the guilty plea entered by each accused, its satisfaction

16 as to the factual basis for the crimes alleged, and the consequent

17 conviction of the three accused on count 3 of the indictment for

18 persecution as a crime against humanity under Article 5 of the Statute.

19 In this regard, the Chamber held that, although it was free to

20 reject the guilty pleas, once it had accepted the pleas, the sentence

21 should be imposed on the basis of the facts agreed between the parties as

22 set out in the Plea Agreements.

23 Each of the Plea Agreements concedes that there is ample evidence

24 that the Bosnian Muslims, Bosnian Croats, and other non-Serbs were

25 subjected to inhumane conditions during their confinement in the Keraterm

Page 5781

1 camp from about the 24th of May to the 5th of August, 1992. These

2 conditions included: Insufficient food and water; inadequate medical care

3 and treatment; overcrowding and lack of opportunities for fresh air and

4 exercise; and lack of proper hygiene arrangements. The Sentencing

5 Judgement sets out in some detail this evidence, for the reason that each

6 of the Plea Agreements reflects the understanding that the count of

7 persecution, to which each accused has pleaded guilty, encompasses that

8 evidence.

9 The criminal conduct underlying each of the accused’s convictions

10 for persecution is contained in the factual basis set out in each of the

11 Plea Agreements.

12 The Chamber then turns to consider the factors relevant to a

13 consideration of an appropriate sentence. In determining sentence, the

14 Chamber has taken into account the following factors: The gravity of the

15 offence, including any aggravating factors; the mitigating circumstances,

16 as well as the general practice regarding prison sentences in the courts

17 of the former Yugoslavia. As regards mitigating circumstances, the

18 Chamber heard submissions on cooperation with the Office of the

19 Prosecutor, but concluded that they were not of sufficient substance as to

20 affect its decision.

21 The Sentencing Judgement begins with an analysis of the sentencing

22 factors in relation to Dusko Sikirica.

23 Dusko Sikirica has admitted to being the Commander of Security at

24 the Keraterm camp between the 14th of June and the 27th July 1992. While

25 he carried out some administrative acts, he did not have any role in the

Page 5782

1 effective administration of Keraterm, which was conducted from Prijedor II

2 police station by Zivko Knezevic under the general authority of Simo

3 Drljaca of the Crisis Staff. He had very limited authority over his

4 equally ranked reserve police colleagues and did not himself have the

5 power to punish any person subordinate to him. Sikirica was not

6 responsible for ensuring adequate food, clothing, water, medical

7 assistance, and satisfactory accommodation for the detainees.

8 Sikirica has admitted to killing one of the detainees in the camp,

9 by shooting him in the head. Moreover, he admits that there is

10 considerable evidence concerning the murder of other individuals at

11 Keraterm during the period of his duties, although it is agreed that there

12 is no evidence that he was present during the commission of the massacre

13 of over one hundred people in Room 3 or that he participated in it in any

14 way. In addition to the killings, Sikirica has admitted that there is

15 evidence that beatings, rape, and sexual assault were perpetrated in the

16 camp, as well as harassment, humiliation, and psychological abuse of the

17 detainees. He further admits that there is ample evidence that the

18 detainees were subjected to inhumane conditions during their confinement

19 at the Keraterm camp.

20 As a component of the overall gravity of his offence, the Chamber

21 has taken into account Sikirica's superior position at Keraterm. As

22 Commander of Security, Sikirica has admitted to having a technical duty to

23 prevent the entry of persons into the camp. That he failed in his duty to

24 prevent outsiders from coming into the camp to mistreat detainees must

25 aggravate his crime. His superior position also aggravates the murder

Page 5783

1 which he has admitted perpetrating.

2 As to mitigating circumstances, the Chamber considers that the

3 primary factor to be considered in mitigation of Sikirica's sentence is

4 his decision to enter a guilty plea, although it will also take into

5 account his expression of remorse.

6 A guilty plea facilitates the work of the Tribunal in two ways.

7 Firstly, by entering a plea of guilty before the commencement of his

8 trial, an accused will save the Tribunal the time and effort of a lengthy

9 investigation and trial. Secondly, notwithstanding the timing of the

10 guilty plea, a benefit accrues to the Trial Chamber, because a guilty plea

11 contributes directly to one of the fundamental objectives of the Tribunal,

12 namely, its truth-finding function. As was held in the Todorovic case, "a

13 guilty plea is always important for the purpose of establishing the truth

14 in relation to a crime."

15 Accordingly, while an accused who pleads guilty to the charges

16 against him prior to the commencement of his trial will usually receive

17 full credit for that plea, one who enters a plea of guilty any time

18 thereafter will stand to receive some credit, though not as much as he

19 would have had the plea been made prior to the commencement of the trial.

20 Therefore, the Chamber holds that, despite the lateness of his

21 guilty plea, Dusko Sikirica should receive some credit for that plea.

22 To accept remorse as a factor in mitigation, the Chamber must be

23 satisfied as to the sincerity of the expressed remorse. In this regard,

24 the Chamber recalls the statement made by Sikirica during the Sentencing

25 Hearing, in which he expressed remorse for his crimes, and the Chamber

Page 5784

1 treats his remorse as a mitigating factor in determining sentence.

2 The Chamber next turns to consider the relevant sentencing factors

3 in relation to Damir Dosen.

4 Damir Dosen has admitted that he was the leader of 6 to 12 men at

5 the Keraterm camp from the 3rd of June to early August 1992. As such, he

6 exercised some limited authority, although he did not hold any rank and

7 was of the same seniority as the other guards on his shift. He did not

8 have the power to punish anybody. Dosen had no role in the administration

9 of the camp and was not responsible for ensuring adequate supplies of

10 food, clothing, water, medical assistance, and satisfactory accommodation.

11 Damir Dosen has admitted that there was evidence that beatings

12 occurred during his shift and that he was aware that such beatings took

13 place. However, there is also evidence that, on several occasions, he

14 attempted to prevent mistreatment of the detainees. He admits that many

15 detainees were beaten during their detention in the Keraterm camp and that

16 beatings caused both serious physical and mental harm to the victims and

17 to those who witnessed such events. He further admits that there is ample

18 evidence that the detainees were subjected to inhumane conditions during

19 their confinement at the Keraterm camp.

20 The Chamber is of the view that Dosen's position as shift leader

21 is an aggravating factor in relation to his crime. He was in a position

22 of trust which he abused: He permitted the persecution of, and condoned

23 violence towards, the very people he should have been protecting.

24 However, the amount of aggravation must be limited in light of the limited

25 nature of his authority.

Page 5785

1 As to mitigating circumstances, the Chamber considers that, for

2 the same reasons as discussed in relation to Sikirica, Dosen, despite the

3 lateness of his guilty plea, should receive some credit for that plea.

4 Moreover, the Chamber recalls the statement made by Dosen during the

5 Sentencing Hearing, in which he expressed remorse for his crimes, and it

6 treats his remorse as a mitigating factor in determining sentence. The

7 Chamber has also taken into account the evidence that Dosen, as shift

8 leader, often acted to ameliorate the terrible conditions that prevailed

9 in the Keraterm camp. The Chamber considers these acts in mitigation of

10 his sentence. The Chamber has concluded that Dosen's psychological

11 condition at the time his crimes were committed was not one which could

12 give rise to mitigation of sentence.

13 The Chamber lastly considers the sentencing factors in relation to

14 Dragan Kolundzija.

15 Dragan Kolundzija has admitted to being a shift leader at the

16 Keraterm camp from early June to 25th July 1992. As shift leader, he had

17 some control over 6 to 12 guards on his shift and thus exercised some

18 authority in the Keraterm camp. He admits that he was in a position to

19 influence the day-to-day running of the camp when he was on duty.

20 There is no evidence that Kolundzija personally mistreated or

21 condoned the mistreatment of detainees by others. He accepts that there

22 is evidence that mistreatment occurred regularly at the Keraterm camp

23 during the period when he was a shift leader and he accepts responsibility

24 for continuing as a shift leader despite being aware of the inhumane camp

25 conditions. In particular, Kolundzija admits that there is ample evidence

Page 5786

1 that the detainees were subjected to inhumane conditions during their

2 confinement at the Keraterm camp.

3 The Chamber finds that Kolundzija was in a similar position in the

4 camp to that of Dosen, that is, a shift leader with limited authority. By

5 continuing as a shift leader, although aware of the conditions, he was

6 abusing his position of trust. This amounts to an aggravating factor in

7 his case, albeit limited in line with his authority.

8 The Chamber considers that Kolundzija's guilty plea and his

9 favourable treatment of the detainees should be considered in mitigation

10 of sentence.

11 The Chamber observes that Kolundzija's plea was more timely than

12 that of his co-accused, having been entered before the commencement of the

13 defence case. It finds that, although not made at the commencement of the

14 proceedings, Kolundzija should receive close to full credit for his guilty

15 plea.

16 Moreover, the Chamber has heard ample evidence of Kolundzija's

17 efforts to ease the harsh conditions in the Keraterm camp for many of the

18 detainees. It considers that, on this basis, he should receive a

19 significant reduction in his sentence.

20 The Chamber has also recalled the statement made by Kolundzija

21 during the Sentencing Hearing in which he expressed remorse for his

22 crimes, and it treats his remorse as a mitigating factor in determining

23 sentence.

24 In the final section of the judgement, the Chamber considers the

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

Page 5787

1 determining sentence for each of the accused.

2 At the outset, the Chamber notes that Dusko Sikirica, Damir Dosen,

3 and Dragan Kolundzija have each been convicted of the crime of

4 persecution, a crime against humanity, which is inherently a very serious

5 crime. This crime, like other crimes against humanity, requires that the

6 acts of the accused relate to a widespread and systematic attack on a

7 civilian population of which the accused had knowledge. Moreover,

8 persecution is the only crime enumerated in Article 5 of the Statute which

9 requires a discriminatory intent and which, by its nature, may incorporate

10 other crimes. The Blaskic Trial Chamber and, more recently, this Chamber

11 in the Todorovic case, held that the crime of persecution, on account of

12 these distinctive features, justifies a more severe penalty.

13 The gravity of Dusko Sikirica's crime is distinguished from that

14 of his co-accused on account of the breadth of the underlying criminal

15 conduct and, more significantly, on the basis of the extent of his direct

16 personal involvement in the crimes. He alone has been convicted for

17 committing a murder in the camp, by shooting one of the detainees at close

18 range within view of other detainees and camp guards. As discussed above,

19 that crime is aggravated by his role as Commander of Security within the

20 camp.

21 The primary factor which the Chamber has considered in mitigation

22 of Sikirica's sentence is his guilty plea. His expression of remorse has

23 also been considered. It is worth noting that, had Sikirica not pleaded

24 guilty in the circumstances of this case, even taking into account the

25 lateness of that plea, he would have received a much longer sentence.

Page 5788

1 Although Damir Dosen's offence is a serious one, in light of the

2 fact that he has been convicted of the crime of persecution, the Chamber,

3 in assessing the gravity of the offence, has borne in mind that, while he

4 has admitted to being aware of beatings occurring on his shift, the Plea

5 Agreement does not suggest his direct involvement in any of those

6 beatings.

7 In relation to those factors which have been taken into account in

8 mitigation of sentence, in the Chamber's view, Dosen's guilty plea and the

9 evidence of the consideration that he showed the detainees are of primary

10 importance. His expression of remorse, which the Trial Chamber has found

11 to be sincere, has also been considered.

12 Although Dragan Kolundzija has been convicted of the crime of

13 persecution, in the Chamber's view, the gravity of his crime is

14 considerably diminished by the fact, as set forth in the Plea Agreement,

15 that there was no evidence of his direct, personal involvement in any of

16 the underlying criminal conduct.

17 The Trial Chamber has considered the following mitigating

18 circumstances in relation to Kolundzija. Firstly, there is his guilty

19 plea, which, unlike those of his co-accused, was entered before the

20 presentation of evidence had commenced in his case. Secondly, there is

21 the fact that many of the former detainees who testified in the

22 Prosecution case gave evidence that Kolundzija had, on many occasions,

23 acted to alleviate the appalling conditions that prevailed in the camp.

24 These mitigating factors in the Chamber's view weigh heavily in favour of

25 a substantial reduction in his sentence.

Page 5789

1 I shall now read out the operative paragraph of the Sentencing

2 Judgement of this Chamber.

3 Dusko Sikirica, Damir Dosen, and Dragan Kolundzija, please stand.

4 For the foregoing reasons, having considered the arguments of the parties,

5 the evidence presented at the Sentencing Hearing, and the Statute and the

6 Rules, the Chamber imposes the following sentences:

7 In respect of Dusko Sikirica, a sentence of 15 years' imprisonment

8 with credit for one year, 4 months and 19 days as of the date of this

9 Sentencing Judgement, together with such additional time as he may serve

10 pending the determination of any appeal.

11 In respect of Damir Dosen, a sentence of 5 years' imprisonment,

12 with credit for 2 years and 19 days as of the date of this Sentencing

13 Judgement, together with such additional time as he may serve pending the

14 determination of any appeal.

15 In respect of Dragan Kolundzija, a sentence of 3 years'

16 imprisonment, with credit for 2 years 5 months, and 6 days as of the date

17 of this Sentencing Judgement, together with such additional time as he may

18 serve pending the determination of any appeal.

19 Pursuant to Rule 103(C), each of the convicted persons shall

20 remain in the custody of the International Tribunal pending the

21 finalisation of arrangements for transfer to the state where sentence will

22 be served.

23 This concludes the Sentencing Judgement of the Trial Chamber and

24 the Chamber stands adjourned.

25 --- Whereupon the Sentencing Proceedings

Page 5790

1 adjourned at 2.59 p.m.