Tribunal Criminal Tribunal for the Former Yugoslavia

Page 499

1 Friday, 23 February 2007

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE ORIE: Good morning to everyone. Madam Registrar, would you

7 please call the case.

8 THE REGISTRAR: Good morning, Your Honours. This is case

9 IT-96-23/2-S, the Prosecutor versus Dragan Zelenovic.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 Today we're here for sentencing hearing in the case against

12 Mr. Zelenovic.

13 May I have the appearances. Prosecution first.

14 MS. MOELLER: Good morning, Your Honours. The Prosecution is

15 represented this morning by trial attorney Mr. Vladimir Tochilovsky, case

16 manager Ms. Vera Balikic, and my name is Christina Moeller, also a trial

17 attorney in the Office of the Prosecutor.

18 JUDGE ORIE: Thank you, Ms. Moeller.

19 For the Defence.

20 MR. JOVANOVIC: [Interpretation] Good morning, Your Honours. I am

21 Zoran Jovanovic, attorney at law, appearing for Mr. Dragan Zelenovic.

22 JUDGE ORIE: Thank you, Mr. Jovanovic.

23 Mr. Zelenovic, can you hear us in a language you understand?

24 THE ACCUSED: [Interpretation] Yes.

25 JUDGE ORIE: Then please be seated and be attentive on everything

Page 500

1 that we say.

2 May I just start with verifying that both parties have not

3 expressed any wish to call witnesses, and specifically that the Defence

4 will not call the expert witness. We have received a report and -- but

5 there is no need to further examine this expert witness. Is that correct,

6 Mr. Jovanovic.

7 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. The Defence has

8 submitted an expert report along with its brief, and we felt there was no

9 need to call the expert as a witness.

10 JUDGE ORIE: Yes. So that's then well understood. I suggest to

11 you that both parties will have an opportunity to further present their

12 case as far as sentencing is concerned, that then perhaps the Judges might

13 have some additional questions, that then after that the parties have a

14 second round to make brief submissions, oral submissions, and that will

15 then conclude this hearing.

16 May I just try to find out, Ms. Moeller, at least if you are in

17 charge, how much time would the Prosecution think it would need to -- not

18 to repeat what we found already in the sentencing brief but to add or to

19 clarify matters or perhaps to emphasise certain aspects of your case?

20 MS. MOELLER: Your Honours, I think I would need probably 20, 25

21 minutes for a short statement.


23 Mr. Jovanovic. How much time do you think you need? And I

24 emphasise again that the Chamber is not that much interested in having

25 everything repeated. I noticed that, for example, in your pre-sentencing

Page 501

1 brief that parts of the expert report are repeated almost literally. How

2 much time would you need to briefly present your case in terms of

3 sentencing?

4 MR. JOVANOVIC: [Interpretation] Your Honour, not longer than the

5 Prosecution will take. I only wish to draw attention to some issues

6 already mentioned in the brief, that's all.

7 JUDGE ORIE: Yes. That's -- that's accepted, although, of course,

8 the sentencing briefs are public documents, nevertheless, in a public

9 hearing it's appropriate to draw attention to certain aspects of the

10 case.

11 Ms. Moeller, you have 25 minutes for your submissions.

12 MS. MOELLER: Thank you, Your Honours.

13 May it please the Court, on 14 December 2007, the accused entered

14 into a plea agreement with the Prosecution pleading guilty to the crimes

15 of torture and rape as crimes against humanity committed against Muslim

16 women in the municipality of Foca in the Republic of Bosnia and

17 Herzegovina in 1992. These crimes are punishable under Article 5(f) and

18 5(g) of the Statute of the Tribunal.

19 On 17 January 2007, a hearing was held concerning this plea

20 agreement where the accused pled guilty to seven counts of the amended

21 indictment. Subsequently, the Trial Chamber found the accused guilty

22 under three counts of torture and four counts of rape. The Prosecution

23 then orally withdrew the remaining charges of the amended indictment.

24 Mr. Dragan Zelenovic admitted that he committed torture and rape

25 as a crime against humanity as a perpetrator and/or co-perpetrator in all

Page 502

1 but one cases. The one case for which he admitted aiding and abetting

2 rape as a crime against humanity concerned the gang-rape of victim FWS-75,

3 as contained in paragraph 5.4 of the amended indictment. Dragan Zelenovic

4 admitted that the crimes he pled guilty to occurred in the context of the

5 armed conflict and that they were part of a widespread and systematic

6 attack directed against the civilian population of Foca and its

7 surrounding villages. He admitted that he had knowledge of the wider

8 context in which he committed his crimes. Dragan Zelenovic is thus guilty

9 by virtue of Articles 5(f) and (g) and Article 7(1) of the Statute.

10 The purpose of the hearing today is to determine the appropriate

11 sentence for this accused.

12 Now, what is the appropriate sentence that should be meted out for

13 the crimes committed by this accused? The case law of the Tribunal

14 established -- yes. Sorry. I've been told to slow down, which I will try

15 to.

16 The case law of the Tribunal established four factors that the

17 Trial Chamber must consider in sentencing. First, the gravity of the

18 offence; second, the individual circumstances of the convicted person and

19 the role he played in the commission of the crimes; third, are there any

20 aggravating or mitigating circumstances; and fourth, the sentencing

21 practices of the former Yugoslavia.

22 I will now turn to the gravity of the offences.

23 The Appeals Chamber in the Celebici case confirmed that the first

24 factor, the gravity of the offence, is the primary consideration in

25 imposing sentence. This finding has repeatedly been confirmed by the

Page 503

1 Appeals Chamber and followed by Trial Chambers. Thus the gravity of the

2 offence is committed by Mr. Zelenovic must be the single most important

3 factor to be considered by the Trial Chamber in determining his sentence.

4 In determining the gravity, not only the general nature of the

5 offence but also the individual circumstances and consequences of a crime

6 must be considered. Factors that should be taken into account include the

7 number of victims and the degree of suffering inflicted upon them by the

8 accused.

9 On the basis of the admissions of the accused, the following facts

10 have been established: The city and municipality of Foca is located

11 south-east of Sarajevo in the Republic of Bosnia and Herzegovina bordering

12 Serbia and Montenegro. According to a 1991 census Foca was a multi-ethnic

13 city consisting of 52 per cent Muslims, 45 per cent Serbs, and 3 per cent

14 others.

15 On 8 April, 1992, first military actions started in the town of

16 Foca. Serb forces started shelling the town with heavy artillery. The

17 attack on Foca and its surrounding villages were part of an armed conflict

18 that took place at that time throughout Bosnia and Herzegovina between

19 forces of the government of Bosnia and Herzegovina and Serb forces. These

20 Serb forced effected the removal of the majority of the non-Serb

21 population from the municipality through violence.

22 Muslim and other non-Serb civilians were subjected to widespread

23 and systematic pattern of abuse. They were methodically rounded up and in

24 the course of the capture were frequently brutalised, beaten, and

25 sometimes even killed. Men, women, and children were separated and

Page 504

1 transported to different detention facilities.

2 In the detention facilities civilians were subjected to

3 humiliating and degrading conditions of life. Women and girls were

4 frequently taken from these detention centres to be sexually assaulted and

5 raped by Serb soldiers and policemen.

6 The Accused Dragan Zelenovic, as a member of the Dragan Nikolic

7 unit and the de facto military policemen in Foca, was one of the men who

8 participated in the takeover of Foca municipality and the subsequent abuse

9 of its non-Serb population. He, together with other soldiers, repeatedly

10 took women and girls from various detention centres in order to rape and

11 abuse them. These detention centres were established at Buk Bijela, Foca

12 High School, and Partizan Sports Hall.

13 On 3 July 1992, Dragan Zelenovic along with co-perpetrators

14 arrested a group of about 60 Muslim women, children, and a few elderly men

15 from Tosanj, and Mjesaja and took them to a detention facility called Buk

16 Bijela. The Muslim civilians were interrogated on the hiding places of

17 male villagers and the weapons. During one of these interrogations Dragan

18 Zelenovic aided and abetted the gang-rape of victim FWS-75 who was raped

19 by at least 10 soldiers on this occasion. During another interrogation he

20 was one of four soldiers who gang-raped FWS-87. During this rape one of

21 the soldiers threatened the victim by putting a gun to her head.

22 Between 3 and about 13 July, 1992, about 70 Muslim inhabitants of

23 Foca were detained in two classrooms at Foca High School, including those

24 women, children, and elderly who had earlier been detained at Buk Bijela.

25 The women were subjected to constant sexual assaults by Serb soldiers.

Page 505

1 Dragan Zelenovic was one of these soldiers.

2 On or about 6 or 7 July, 1992, Dragan Zelenovic, in concert with

3 other co-perpetrators, selected four women and girls from the classroom.

4 Among them were again FWS-75 and FWS-87. Dragan Zelenovic led them to

5 another classroom and decided which woman should go to which man. Then

6 Zelenovic himself raped FWS-75 while the other men raped the other three

7 victims.

8 Between 8 and about 13 July 1992, Dragan Zelenovic together with

9 other co-perpetrators took FWS-75 and FWS-87 out of Foca High School on

10 several occasions. On one of these occasions Witness FWS-75 was

11 subjected to a gang-rape in which he participated with three other

12 soldiers. This rape took place in his own apartment in the Brena

13 apartment block in Foca. On this same occasion, he also raped FWS-87. On

14 two other occasions during this time he and several soldiers took FWS-75

15 and FWS-87 to other apartments in the Brena Block and raped them. Dragan

16 Zelenovic raped both victims on this occasion. On yet another occasion

17 during this time he took the two women to an abandoned house in Gornje

18 Polje where he raped FWS-87.

19 Dragan Zelenovic also took women and girls from Partizan Sports

20 Hall in order to rape them. Partizan Sports Hall served as a detention

21 facility from on or about 13 July until 13 August 1992. The detained

22 women, children, and elderly held there numbered about 70. Living

23 conditions for the detainees were brutal at this facility. They were

24 subjected to inhumane treatment, lack of hygiene, overcrowding,

25 starvations, and psychological and physical torture including constant

Page 506

1 sexual assaults.

2 In July 1992, Dragan Zelenovic took victim FWS-87 who had been

3 transferred to Partizan from Foca High School from the detention facility

4 and gang-raped her along with three co-perpetrators. He assaulted FWS-87

5 once more on or about 30 October 1992. At this time, FWS-87, FWS-75, and

6 other females were detained in a house known as Karaman's house. Dragan

7 Zelenovic, together with three co-perpetrators, took FWS-87, FWS-75, and

8 two other females from Karaman's house and brought them to an apartment

9 near the fish restaurant in Foca. While the other co-perpetrators raped

10 the other women, Zelenovic raped FWS-87.

11 These women continued to be detained at different houses and

12 apartments and continued to be subjected to sexual assaults by different

13 groups of soldiers.

14 The takeover of Foca town was complete by April 1992. The attack

15 on the surrounding villages continued until mid-July 1992.

16 After extended periods of detention, the non-Serb civilians were

17 deported or forcibly transferred to Montenegro or locations controlled by

18 the government of Bosnia and Herzegovina. The remaining non-Serb

19 population outside the detention centres was subjected to discriminatory

20 measures including restriction of movements, searching of their homes,

21 arbitrary beatings, killings, plunder, and destruction of homes and

22 cultural and religious monuments that made their stay in Foca unbearable.

23 The consequence of this widespread and systematic attack upon the

24 non-Serb civilian population of Foca and its surroundings was that all

25 traces of Muslim presence in the area were effectively wiped out, that

Page 507

1 nearly all Muslim civilians were expelled from the area. In 1994, Foca

2 was renamed Srbinje, the Serb town, referring to the fact that it is now

3 almost exclusively inhabited by Serbs.

4 The Prosecution submits that the individual circumstances

5 established, as well as the general nature of the offences committed by

6 this accused must be considered to be of severe gravity.

7 As the Prosecution submitted in its sentencing brief, a crime

8 against humanity constitutes a crime which impacts beyond the immediate

9 victims because it entails a widespread and/or systematic attack on a

10 civilian population as one of its elements of crime, the perpetrator's

11 conduct is concerned not only towards the immediate victim but towards the

12 whole of humankind.

13 As has been noted by the Trial Chamber in Prosecutor versus

14 Erdemovic, when a crime against humanity is committed, "humanity comes

15 under attack and is negated." The general nature of the specific

16 underlying offences of rape and torture has also already been commented on

17 by Chambers in the Tribunal. In Prosecutor versus Cesic it was held that

18 rape must be considered a particularly serious offence because it violates

19 the physical as well the physical integrity of the victims. It was also

20 noted that rape is an inherently humiliating offence and that humiliation

21 is to be taken into account when determining the gravity of a crime.

22 The general nature and gravity of the particular offence of rape

23 and torture was also addressed in the case Prosecutor versus Kunarac,

24 Kovac, and Vukovic, which concerned three accused who received severe

25 sentences for having committed crimes against female victims in Foca and

Page 508

1 its surrounding villages and who therefore are co-perpetrators of this

2 accused.

3 Presiding Judge Mumba in delivering the judgement in this case

4 found through the sexual assaults and raped, and I quote, "Muslims, women

5 and girls, mothers and daughters together were robbed of their last

6 vestiges of human dignity. Women and girls treated like chattels, pieces

7 of property, at the arbitrary disposal of the Serb occupation forces."

8 Similarly the Trial Chamber in Prosecutor versus Furundzija, a

9 case which also dealt with sexual violence committed in armed conflict

10 held that torture by means of rape shall be considered a vicious form of

11 torture.

12 It is thus submitted that the gravity of the offences of rape and

13 torture is such is that demands a substantial punishment.

14 In addition to the general gravity of the offence, the Trial

15 Chamber must take into account also the specific circumstances of each

16 particular case including the form and degree of participation of the

17 accused in the crimes. Mr. Zelenovic participated as a perpetrator,

18 co-perpetrator, and in one case as aider and abettor in numerous rapes and

19 tortures. He participated in the sexual assault of several women at Buk

20 Bijela. He participated in the rape and sexual abuse of several women at

21 Foca High School. He also did so repeatedly in an apartment building

22 called Brena in the centre of Foca. He took a victim from Partizan Sports

23 Hall and gang-raped her together with three other men. He took several

24 women out of Karaman's house and raped one of them in an apartment near

25 the fish restaurant in Foca.

Page 509

1 It is therefore established that the accused committed multiple

2 rapes, many of which were gang-rapes in which the victims were assaulted

3 by four and more men. One of these gang-rapes which he aided and abetted

4 was so violent that the victim at some point lost consciousness.

5 During another gang-rape in which he was a co-perpetrator, the

6 victim was threatened with a gun to her head while being abused. The

7 accused raped some of the victims in all possible ways and victim FWS-75

8 and FWS-87 were repeatedly assaulted by him while being transferred

9 through different defence centres. At one occasion the accused hosted the

10 gang-rape of FWS-75 by four soldiers including himself in his own

11 apartment. On this occasion he also raped FWS-87. On yet another

12 occasion it was the accused who determined who of four girls who had been

13 taken out of Foca High School should go to which soldier to be raped.

14 He over and again abused two particular victims, FWS-75 and

15 FWS-87, in all possible ways. FWS-87 at the relevant time was a

16 15-year-old girl. Dragan Zelenovic showed no mercy for this child but

17 abused her while she was transferred to the detention centres of Buk

18 Bijela, Foca High School, and Partizan Sports Hall. After she was

19 transferred from Partizan Sports Hall to Karaman's house he also found her

20 there and took her out once more to abuse her.

21 Dragan Zelenovic committed these offences against particularly

22 vulnerable and defenseless women and children. He picked his victims on

23 the grounds of ethnic and gender discrimination. He committed rape and

24 torture over an extended period of time in relation to victims FWS-75

25 and FWS-87. More than one victim was involved in the commission of his

Page 510

1 offences. The gang-rapes he committed in concert with other

2 perpetrators.

3 By all these acts, Dragan Zelenovic showed the most glaring

4 disrespect for the women's dignity and the fundamental human right to

5 sexual self-determination.

6 It was accepted that Dragan Zelenovic was not the mastermind

7 behind the patterns of sexual assault committed against Muslim women and

8 girls in the Foca area. It is accepted he had no command responsibility

9 for particular authority over other soldiers and co-perpetrators.

10 However, as his admissions show, his participation in the pattern of

11 sexual assaults and terror was substantial.

12 Another important factor to be considered when determining the

13 gravity of an offence is the suffering inflicted upon the victims. Two

14 victims who were repeatedly assaulted, as already mentioned, were FWS-75

15 and FWS-87.

16 In 1992 FWS-75 was 25 years old. In July 1992, when her village

17 was attacked, she was taken from Buk Bijela -- to Buk Bijela, then to Foca

18 High School, taken out from there to different apartments, and further

19 transferred to Partizan Sports Hall and from there onwards to other

20 places. During her horrible odyssey, FWS-75 was constantly raped and

21 sexually assaulted. Dragan Zelenovic was not the only soldier who abused

22 her but one among others.

23 As already mentioned, FWS-87 was only 15 years old in 1992, and

24 she was forced on a similar odyssey during which time she was transferred

25 from detention centre to detention centre constantly being sexually

Page 511

1 assaulted and raped by different soldiers including this accused.

2 These two girls, however, were not the only victims who suffered

3 at the hands of Dragan Zelenovic. He admitted his participation in the

4 rape and gang-rape of other unidentified women and thereby victimised

5 numerous women and girls.

6 All victims were terrorised and endured inordinate physical and

7 mental suffering. Not only did they is suffer the pain, indignity, and

8 humiliation of being repeatedly violated, but they also did not know

9 whether there it would survive this ordeal. The victims were unarmed,

10 defenceless female civilians. They were made even more vulnerable by

11 being detained under inhumane conditions and transferred from detention

12 centre to detention centre. They experienced starvation, lack of sleep,

13 and filthy living conditions during these times.

14 As a result of the repeated sexual assaults under these

15 conditions, the physical and psychological health of many of the victims

16 seriously deteriorated or was destroyed. None of these victims will ever

17 be able to forget. Not all of them will be able to heal. Some may

18 continue to be haunted and tormented for the rest of their lives by what

19 they were put through by this accused and his co-perpetrators.

20 Let us now turn to the aggravating and mitigating factors.

21 The Prosecution submits that pursuant to paragraph 15 of the plea

22 agreement the following aggravating factors must be taken into account

23 when determining the sentence for Mr. Zelenovic: First, the particular

24 vulnerability of victim FWS-75 due to her youthful age of only 15 years at

25 the time. Second, the multiplicity of the rapes.

Page 512

1 The Prosecution submits that there are also mitigating factors

2 that should be taken into account in this specific case. The most

3 important mitigating circumstance is the fact that the accused entered

4 into a guilty plea and accepted his responsibility for the crimes

5 described. He has cooperated with the Prosecution in achieving the plea

6 agreement and has provided truthful and complete information.

7 As the Prosecution submitted in its sentencing brief, the plea of

8 guilty should be regarded as a mitigating factor for two reasons. First,

9 if it is entered before the start of the trial, it does save the victims

10 and witnesses from testifying and having to give evidence. It also may

11 substantial of time and resources. Most importantly, however, and in

12 particular in cases involving heinous crimes like rape and torture and

13 where victims and witnesses have already testified once, like in the

14 instance case in the Kunarac trial, it does avoid additional hardship for

15 the victims, witnesses, and their families, and it does avoid the danger

16 of potential retraumatisation.

17 In this regard the Prosecution notes the Defence expert report

18 provided by Ana Najman, specialist in medical clinical psychology titled,

19 "Attitude Toward Trauma and the Act of Rape by Victims and Perpetrator,"

20 which deals extensively with the characteristics of rape committed in

21 armed conflict, the trauma suffered by rape victims, and the positive

22 impact of the admission of guilt by the perpetrator. The report was

23 admitted as an annex to the Defence sentencing brief and the Prosecution

24 concurs with and endorses this report and the findings made therein.

25 Secondly, a guilty plea also contributes to the fulfillment of the

Page 513

1 objective of the Tribunal which is the establishment of the truth. In

2 this particular case, the events that occurred in Foca and its surrounding

3 villages in the first half of 1992 have already been established beyond

4 reasonable doubt by two judgements of this Tribunal, both of which were

5 upheld by the Appeals Chamber. These are the judgements in the cases

6 Prosecutor versus Kunarac, Kovac, and Vukovic, and Prosecutor versus

7 Krnojelac.

8 Nevertheless, the guilty plea of Mr. Zelenovic contributes

9 substantially to the Tribunal's mandate. This is because for the first

10 time in the history of this Tribunal a perpetrator who has participated in

11 these events actually admits and confirms what happened to the female

12 non-Serb population in this part of Bosnia and Herzegovina in 1992.

13 Mr. Zelenovic's admission of guilt thereby contributes not only to

14 establishing the truth but can be hoped to also contribute to the

15 reconciliation process in the area.

16 The Prosecution thus concurs with the Defence that the admission

17 of guilt by the accused should mitigate his sentence.

18 The Defence in it's sentencing brief submitted on 14 February 2007

19 further argued that a number of personal circumstances should be taken

20 into account as mitigating factors. It is noted that Article 24,

21 paragraph (2) of the Statute requires the Trial Chamber to take into

22 account "the individual circumstances of the convicted person" in the

23 course of determining sentence. The Appeals Chamber in Prosecutor versus

24 Kunarac held that family concerns should in principle be a mitigating

25 factor.

Page 514

1 In the instant case the accused has submitted that he is married

2 and has a minor son and that he is a war invalid with 80 per cent

3 established disability. The Prosecution concurs with the Defence that the

4 Trial Chamber take into account the family situation of the accused as a

5 mitigating factor. However, in view of the number and severity of crimes

6 committed by the accused, it is submitted that this factor can only have

7 limited mitigating impact on the sentence to be meted out.

8 The same applies in the Prosecution's submissions with regard to

9 the other mitigating factors set forth by the Defence in its sentencing

10 brief. These are the facts that the accused has no previous conviction,

11 that he comported well while in the UN detention facility and that he has

12 certain health issues.

13 The Prosecution agrees that such circumstances generally can

14 mitigate an accused's penalties to a limited extent. It must not be

15 overlooked, however, that such factors can only relate to the assessment

16 of a penalty. They cannot derogate the gravity of the crime.

17 Again, in view of the number and severity of the crimes committed

18 by the accused, it is submitted that these factors can only have very

19 limited mitigating impact.

20 The last factor to be considered in the sentencing by the Trial

21 Chamber is the sentencing practices in the former Yugoslavia. Pursuant to

22 Article 24 and Rule 101, the Trial Chamber is required to take into

23 account these practices. As the Prosecution submitted in its brief,

24 Article 142 of the SFRY Criminal Code encompasses criminal offences

25 against humanitarian and international law, penalising inter alia crimes

Page 515

1 against humanity. The sentencing range for perpetrators of such crimes

2 lies between the minimum sentence of no less than 5 years and the maximum

3 penalty of death.

4 It has been established by the Appeals Chamber in Tadic and

5 Kunarac that a Trial Chamber must consider but is not bound by the

6 sentencing practice in the former Yugoslavia.

7 I will now come to the conclusions.

8 In conclusion of these arguments, the Prosecution respectfully

9 requests that the Trial Chamber impose a sentence upon Mr. Zelenovic

10 commensurate to the gravity of the offences he committed. When doing so,

11 the Trial Chamber should take into account that the accused has admitted

12 his guilt and accepted his responsibility.

13 Balancing the severe gravity of the crimes committed and the

14 mitigating effect of the accused's acceptance of guilt and responsibility,

15 it is submitted that the term of imprisonment within the range of 10 to 15

16 years would be the appropriate sentence.

17 In submitting this term of imprisonment, the Prosecution took into

18 account the sentences meted out against the co-perpetrators Kunarac,

19 Kovac, and Vukovic for similar crimes committed in the same context.

20 Their sentences amount to 28, 20, and 12 years respectively. Notably the,

21 12-year sentence was given to the accused Vukovic for the commission of a

22 single rape as a crime against humanity.

23 The Prosecution is aware that the sentence requested for

24 Mr. Zelenovic is comparatively low, but contrary to these convicted

25 persons, Mr. Zelenovic has decided to face his guilt and to publicly

Page 516

1 accept full responsibility for the heinous acts he committed. He

2 expressed regret and remorse for his victims. In this regard, the

3 Prosecution draws the attention of the Trial Chamber to the signed

4 statement of the accused dated 9 February, which was annexed to the

5 Defence sentencing brief in which Mr. Zelenovic expressed his remorse for

6 the victims and his hope that his admissions -- admissions will contribute

7 to reconciliation.

8 It is submitted that for these reasons and notwithstanding the

9 severe character of the crimes he committed it is justified that his

10 sentence is considerably lower than the sentences given to the accused in

11 the Kunarac et al. case.

12 This completes my submissions. Thank you.

13 JUDGE ORIE: Thank you, Ms. Moeller.

14 Mr. Jovanovic, I think it would be fair to grant you also 37

15 minutes instead of 25. Please proceed.

16 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. As my

17 learned friend has already spoken about the procedural history of this

18 case, I will not go into it, and this will save time. My learned friend

19 has also given an overview of the factual basis, and the Defence did not

20 deal with this in its brief apart from saying that this has already been

21 established and that Mr. Zelenovic has accepted it. Therefore, the

22 Defence will not deal with this aspect either in our oral submissions.

23 What I wish to draw attention to in particular are the mitigating

24 circumstances mentioned in the brief of the 14th of February, 2007.

25 All the arguments that have already been put forward show that

Page 517

1 Mr. Zelenovic sincerely accepts his guilt, that he absolutely accepts his

2 responsibility, that he is willing to be punished in any way that this

3 Chamber deems appropriate, and the Defence wishes to point out the

4 significance of his admission of guilt, especially with reference to the

5 gravity of the crimes that have been established.

6 The Defence fully agrees with the Prosecution position and the

7 jurisprudence of this Tribunal as regards the crime of rape. This is a

8 heinous crime, and the Defence and Mr. Zelenovic himself do not wish in

9 any way to diminish the significance of this crime and its gravity.

10 However, the effort made by Mr. Zelenovic in admitting to these crimes and

11 his expressed desire to protect the victims, to apologise to them, and by

12 his admission justify the work and existence of this Tribunal are, in my

13 view, a mitigating circumstance which must be taken into account and given

14 due weight.

15 The International Criminal Tribunal, as has been pointed out more

16 than once, is now implementing its completion strategy. Madam Carla Del

17 Ponte, the Chief Prosecutor, is constantly undertaking diplomatic

18 missions, a we hear that she is constantly assuring various governments

19 and international institutions that this Tribunal will fulfil its

20 mission. Unfortunately, we see that there are still accused at large and,

21 unfortunately, we also hear that there are those who challenge and deny

22 the results of this Tribunal.

23 Mr. Zelenovic's admission of guilt clearly indicates that there

24 were crimes, that these crimes did happen, and this has also been repeated

25 in his statement of remorse. All this shows that this Court really needed

Page 518

1 to be established and that it is in fact fulfilling its purpose.

2 Mr. Zelenovic has admitted his guilt. He did so within a very

3 short time of his arrival in the Detention Unit of the ICTY. It was done

4 as quickly as technically feasible in view of the talks between the

5 Prosecution and the Defence. It was done much sooner than a trial date

6 could be set, for example, or an 11 bis motion lodged. By doing this,

7 Mr. Zelenovic has saved the Tribunal considerable time and resources.

8 Mr. Zelenovic, as can be seen in the brief and the expert report

9 appended to it, spared the victims retraumatisation which would have

10 resulted from their having to testify. I only wish to draw attention to

11 the fact that these persons testified in the case of Prosecutor versus

12 Kunarac et al., but that now they are needed as witnesses before the

13 national courts of Bosnia-Herzegovina. So they are continuing to undergo

14 these difficult experiences having to face the Court, having to face

15 Defence counsel, and answer questions in proceedings. Mr. Zelenovic has

16 spared them this additional effort.

17 The expert report explains the lengthy nature of the healing of

18 these persons and how they can be exposed to fresh suffering through

19 having to mention all the details of the events which occurred. Dragan

20 Zelenovic was a member of the army of Republika Srpska. He was a private,

21 an ordinary soldier, a military policeman, and, as stated by the

22 Prosecution, he was one of those who participated in these events before

23 the rapes and torture took place, who participated in the armed conflict

24 that occurred on the territory of Bosnia-Herzegovina. He certainly did

25 participate in this, but he was only a small part of this, at the lowest

Page 519

1 level of responsibility. Unfortunately, in the description of the crimes

2 accepted by Mr. Zelenovic, we see that these events also occurred with the

3 participation of unidentified soldiers. These are people who are perhaps

4 still at large today. However, Mr. Zelenovic through his admission of

5 guilt has decided to face his own responsibility and accepted that these

6 events occurred. His admission of guilt shows beyond any doubt what

7 actually happened on the territory of Foca and Bosnia-Herzegovina.

8 The personal circumstances of Mr. Zelenovic have also been put

9 forward. He is in very poor health, which can be seen in the report

10 submitted by the doctor of the Detention Unit. Mr. Zelenovic is an

11 invalid, and his disability amounts to 80 per cent.

12 He has sincerely expressed his remorse, and he will repeat the

13 statement already appended to the brief of the of the 14th of February,

14 2007.

15 The Prosecution and the Defence have put forward their proposals

16 as to sentencing, 7 to 10 years, or 10 to 15 years respectively, and the

17 only point of agreement is a 10-year sentence.

18 The Defence is fully aware of the gravity of the crimes committed.

19 It is also aware of fact that in view of the jurisprudence of this

20 Tribunal one cannot simply compare sentences between cases because each

21 case is unique and has specific circumstances involved. Also, the fact

22 that Mr. Zelenovic was only a common private doesn't necessarily have to

23 have special weight in sentencing, if we look at those who were accused

24 and sentenced before this Tribunal and who held high rank, either in

25 military or political structures.

Page 520

1 I will, however, draw attention to something that has been stated

2 in the Defence brief, and that is the standpoint of the Trial Chamber in

3 the Todorovic case where Todorovic's crimes were found to be extremely

4 heinous and his behaviour very cruel, but he was sentenced to 10 years,

5 with the explanation that the sentence would have to be much longer if the

6 facts had had to be established in trial proceedings.

7 I will also mention the case of Prosecutor versus Biljana Plavsic,

8 where someone who was in the highest echelons of power and whose influence

9 extended throughout Bosnia-Herzegovina in the armed conflict was sentenced

10 to 11 years.

11 Mr. Zelenovic fully agreed to cooperate with the Prosecution. He

12 undertook to cooperate in every way required by the Office of the

13 Prosecutor. He undertook to make any statement to the Office of the

14 Prosecutor and to testify in any case, in any proceedings in this

15 Tribunal.

16 A short time has elapsed from Mr. Zelenovic's guilty plea, and for

17 this reason he has not had an opportunity to demonstrate his cooperation

18 in practice, but we must take his cooperation to be full, because he has

19 expressed his standpoint in this respect.

20 These are in brief the arguments put forward in the Defence brief.

21 The Defence abides by its arguments and its proposal as to sentencing.

22 Thank you, Your Honours. Mr. Zelenovic, by Your Honours' leave,

23 will make his statement of remorse. Thank you.

24 JUDGE ORIE: Mr. Zelenovic, counsel requested to give you an

25 opportunity to give a statement. He already announced what kind of

Page 521

1 statement it would be. You have an opportunity to address the Court.

2 Please proceed.

3 THE INTERPRETER: Microphone, please. The interpreters cannot

4 hear.

5 THE ACCUSED: [Interpretation] Your Honours, I have expressed my

6 position and remorse in the statement presented by the Defence. Also now,

7 before all, I wish to repeat this and say I thank you for giving me this

8 opportunity to address you first and foremost with a few words and then

9 all those who advocate truth and justice. I hope that the victims of this

10 senseless war will hear my words too. This is a war that didn't make

11 anybody happy. Guided by Biblical teachings that the truth is not to be

12 feared because that is the only thing that will help all, I have confessed

13 as to my guilt, and I am prepared to bear all the consequences of that.

14 I know that not a single form of punishment can erase the

15 suffering sustained by my victims. However, faith teaches us that

16 admission of having committed injustice to someone is the best way of

17 helping them. And also in order to protect the victims from being

18 reminded yet again of their suffering, I admitted my guilt. I feel sorry

19 for all the victims who were victimised by anything that I did, and that

20 is why I express from this forum my deepest remorse and regret.

21 I am a human being with virtues and vices, and I didn't know how

22 to deal with these vices when I should have.

23 Your Honours, it is for you to give your say now. I will

24 courageously take any sentence meted out, and I hope that God will give me

25 strength to go through all of this and that I go back to my family. Thank

Page 522

1 you.

2 JUDGE ORIE: Thank you, Mr. Zelenovic. Please be seated.

3 [Trial Chamber confers]

4 JUDGE ORIE: Now the Judges may have some questions to the

5 parties.

6 Judge Moloto.

7 JUDGE MOLOTO: Thank you very much, Judge. Maybe I would like to

8 address myself to Mr. Zelenovic, now that he has also said a few words. I

9 just want to ask -- you may be seated, Mr. Zelenovic. You may be seated.

10 I just want to find out from you, Mr. Zelenovic, when you began to

11 feel the remorse.

12 THE INTERPRETER: Microphone, please.

13 THE ACCUSED: [Interpretation] When the indictment was issued

14 against me.

15 JUDGE MOLOTO: When was this?

16 THE ACCUSED: [Interpretation] When I started believing in God.

17 Until then I had not believed in God.

18 JUDGE MOLOTO: My question was when was this? When was the

19 indictment issued against you?

20 THE ACCUSED: [Interpretation] In 1995, 1996. I don't know.

21 JUDGE MOLOTO: How did you come into the custody of the Tribunal?

22 THE ACCUSED: [Interpretation] Well, I came from Russia. I came to

23 the prison here.

24 JUDGE MOLOTO: When did you go to Russia?

25 THE ACCUSED: [Interpretation] In the year 2000 -- 2001, that is,

Page 523

1 on the 4th of August.

2 JUDGE MOLOTO: Why did you go to Russia?

3 THE ACCUSED: [Interpretation] Well, I went. I went to work there,

4 and there was this indictment issued against me, as you understand.

5 JUDGE MOLOTO: The indictment was issued against you by your own

6 admission in 1995, 1996. In 2000, 2001, you go to Russia and --

7 THE ACCUSED: [Interpretation] Yes had.

8 JUDGE MOLOTO: -- at the time in 1995 and 1996 when the indictment

9 was issued against you, you were already remorseful. You are now a

10 believer, and you decided to go to Russia.

11 THE ACCUSED: [Interpretation] Yes.

12 JUDGE MOLOTO: You decided not to come and hand yourself over and

13 say you want to face the consequences like you say you want to face them

14 today.

15 THE ACCUSED: [Interpretation] No, no. But that is what the policy

16 was before that. Everybody was saying that it's a political court here.

17 I'm not a politician. I just listened to what others said, and I just

18 went to Russia. They simply removed me. They said, "Go to Russia. Go to

19 Russia."

20 I was just a mere rubber stamp. I mean, I was but a pawn in all

21 these games.

22 JUDGE MOLOTO: Mr. Zelenovic, I'm talking to you about

23 Mr. Zelenovic, not about other people.

24 Yes, sir. Do you want to say something, sir?

25 MR. JOVANOVIC: [Interpretation] Your Honour, I do apologise. By

Page 524

1 your leave I'd like to give a clarification, an explanation in terms of

2 the time and way in which Mr. Zelenovic went to Russia. I can deal with

3 that after you have concluded your questions.

4 JUDGE MOLOTO: You will deal with that after I have concluded my

5 questions. Let me deal with Mr. Zelenovic.

6 MR. JOVANOVIC: [Interpretation] Thank you very much. Thank you,

7 Your Honour.

8 JUDGE MOLOTO: Mr. Zelenovic, you have just told us this morning

9 that you became a believer when you received the indictment in 1995, 1996.

10 Now, when those who told you to go to Russia told you to do that, why

11 didn't you say to them, "I'm sorry. I want to face the music. I am a

12 believer. I was wrong. I know I did wrong. I know I've hurt them, and I

13 want to go and face my victims and apologise to them. I am not going to

14 Russia"? Why didn't you do that?

15 THE ACCUSED: [Interpretation] Because I was thinking about what

16 would happen to my family afterwards. That's why I did what I did.

17 JUDGE MOLOTO: And what did you think would happen to your family

18 afterwards?

19 THE ACCUSED: [Interpretation] Well, how can I know? Quite simply

20 when they say go, go somewhere else, end of story.

21 JUDGE MOLOTO: Who says go somewhere else?

22 THE ACCUSED: [Interpretation] People, people from the association.

23 Do you understand that? I mean, the people in Russia that I socialised

24 with.

25 JUDGE MOLOTO: I don't understand. The people in Russia tell you

Page 525

1 to leave Bosnia, to go to Russia. Is that what you --

2 THE ACCUSED: [Interpretation] No, no, no.

3 JUDGE MOLOTO: Who are the people who said to you, "Go to Russia"?

4 THE ACCUSED: [Interpretation] Russian people that I socialised

5 with in Belgrade. I first went to Belgrade, to Serbia. And it was from

6 Serbia that I went to Russia, yes. And I have a Serbian passport there.

7 JUDGE MOLOTO: And you went to Russia under a pseudonym.

8 THE ACCUSED: [Interpretation] Yes.

9 JUDGE MOLOTO: Because you didn't want to be detected,

10 Mr. Zelenovic, is that a fact? You know, you have confessed to your

11 guilt. I can't understand --

12 THE ACCUSED: [Interpretation] Yes.

13 JUDGE MOLOTO: -- why you are now trying to beat about the bush.

14 You were trying to conceal your identity. Is that a fact?

15 THE ACCUSED: [Interpretation] I'm not hiding the fact that I went

16 to Russia. And I started thinking about what it was that I did when I

17 went to prison. I had plenty of time to lie down, look at the ceiling,

18 and wonder why it was that I was in prison. I was in Russia in prison for

19 11 months, and that is when I realised everything.

20 JUDGE MOLOTO: Mr. Zelenovic, please listen to my questions and

21 answer my questions, okay? If you have to tell a story, you can ask for

22 an opportunity to do so.

23 My question to you is: You went to Russia under a false name; is

24 that correct? Right.

25 THE ACCUSED: [Interpretation] Yes. Yes.

Page 526

1 JUDGE MOLOTO: And you did so because you wanted to evade

2 detection for these crimes isn't that correct.

3 THE ACCUSED: [Interpretation] Yes, yes.

4 JUDGE MOLOTO: And you were a fugitive from justice there, were

5 you not?

6 THE ACCUSED: [Interpretation] Yes.

7 JUDGE MOLOTO: So in fact it is not correct today to say you felt

8 the remorse in 1995, 1996. You are not telling the truth when you say so,

9 isn't it so, sir?

10 THE ACCUSED: [Interpretation] I am telling you how it was. I

11 started thinking about what it was that I did when the indictment was

12 issued.

13 JUDGE MOLOTO: Mr. Zelenovic, listen to my question and answer my

14 question. You did not feel remorse in 1995, 1996, say? Isn't it so?

15 THE ACCUSED: [Interpretation] Oh, yes. That's when the indictment

16 was issued against me, and that's when I started thinking, and that's when

17 I started repenting. Yes. Yes. Until the indictment was issued against

18 me, I didn't even think about this. As time went by, I kept thinking

19 about it more and more until I came to prison in Russia. Then I truly

20 realised that -- then I really started thinking about this.

21 JUDGE MOLOTO: Mr. Zelenovic, you -- you felt remorse on the 9th

22 of February, 2007, when you signed the statement because you had no

23 escape. Is that not so?

24 THE ACCUSED: [Interpretation] Oh, no. No, no. No, no.

25 JUDGE MOLOTO: Mr. Zelenovic --

Page 527

1 THE ACCUSED: [Interpretation] No.

2 JUDGE MOLOTO: -- were you with your family in Russia?

3 THE ACCUSED: [Interpretation] No.

4 JUDGE MOLOTO: Where was your family when you were in Russia?

5 THE ACCUSED: [Interpretation] In Foca.

6 JUDGE MOLOTO: How old is your minor son, sir, today, as we speak?

7 THE ACCUSED: [Interpretation] Thirteen.

8 JUDGE MOLOTO: And what does your wife do?

9 THE ACCUSED: [Interpretation] She works in a company. She's a

10 secretary in this organisation where I had worked.

11 JUDGE MOLOTO: So in fact, Mr. Zelenovic, you abandoned not only

12 the victims of your crimes but also your family to go to Russia.

13 THE ACCUSED: [Interpretation] Yes. Yes. I haven't seen my son in

14 five years.

15 JUDGE MOLOTO: Indeed, sir. Out of choice, in fact, because you

16 decided to abandon your son and go to Russia. So it doesn't really matter

17 how long you go to gaol.

18 THE ACCUSED: [Interpretation] Yes.

19 JUDGE MOLOTO: It doesn't matter how long you don't see him for?

20 THE ACCUSED: [Interpretation] Well, what do you mean it doesn't

21 matter? That is the thing that contributed the most of all for me to come

22 to this court.

23 JUDGE MOLOTO: No. But you were arrested in Russia. You didn't

24 come on your own, sir. Let's look at the facts.

25 THE ACCUSED: [Interpretation] Yes.

Page 528

1 JUDGE MOLOTO: You didn't come voluntarily. It didn't matter how

2 long you stayed away from your family. If you were not arrested, you'd

3 still be in Russia even now. So it really doesn't matter how long you

4 stay away from them, from your point of view.

5 THE ACCUSED: [Interpretation] That is not so, no. Again, I'm

6 telling you. I'm telling you how it was. How can I now say that I didn't

7 want to see my own child?

8 JUDGE MOLOTO: You're telling me, but the facts speak contrary to

9 what you are telling us.

10 Thank you very much, Mr. Zelenovic.

11 Thank you.

12 JUDGE ORIE: I would have a few questions as well. I will not

13 further explore, Mr. Zelenovic, the issue raised by Judge Moloto, that is

14 how you balanced over a longer period of time the interests of others and

15 your own interests not to be arrested.

16 I have -- Mr. Jovanovic, I have first of all a very practical

17 question. In the detention order, the -- well, let me say the Russian

18 detention order, at the bottom there is some language which says: "I

19 received the order on the 23rd of April, 2005."

20 First of all, I had some difficulties to find this in the

21 original, and of course the date of the 23rd of April, 2005, was quite a

22 puzzle to me. Perhaps it's somewhere at the back of that document. We

23 have received a photocopy, which is not -- especially at the end not very

24 legible.

25 MR. JOVANOVIC: [Interpretation] Your Honour, the date of this

Page 529

1 decision made by the Office of the Prosecution of the Russian Federation

2 is the 23rd of August, 2005.

3 JUDGE ORIE: Yes. So the last line above the -- I would say the

4 second signature, is that the line that reads: "I received the order on

5 the 23rd of --" I have difficulties in identifying 23rd, but that's the

6 23rd of August. So there is a translation error where it says "April."

7 Is that a correct understanding?

8 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Obviously it's

9 an error. In the original decision that I have here, the date is the 23rd

10 of August, 2005, as well as the date when the decision was received by

11 Mr. Zelenovic, and he signed for that, but under the name of Branislav

12 Petrovic. That is precisely the question that I wanted to clarify when I

13 spoke during the questions put by His Honour Judge Moloto.

14 Mr. Zelenovic was indeed in Russia, and he knew that he had been

15 indicted by the International Criminal Tribunal for the Former Yugoslavia.

16 The indictment was actually from 1999, but as he said, he started thinking

17 about all of these events in 1995. In actual fact, Mr. Zelenovic was told

18 to leave Foca. As he said, he came to the Republic of Serbia.

19 Regrettably the Defence did not have the personal documents of

20 Mr. Zelenovic in order to submit them along with this brief, that is to

21 say those documents that were issued to him in the name of Branislav

22 Petrovic in 2001 in Serbia.

23 Actually, in 2001, Mr. Zelenovic went to the police station in

24 Belgrade where documents were issued to him, a passport with a visa of the

25 Russian Federation, and a personal identity card in the name of Branislav

Page 530

1 Petrovic.

2 I'm convinced that it was known what his identity was and through

3 these documents a suggestion was directly made to him that he was supposed

4 to leave.

5 Mr. Zelenovic knew that he was indicted, as I've already said.

6 That does not diminish his responsibility. His choice could have been to

7 surrender to the International Criminal Tribunal. However, if he receives

8 documents that are not falsified, that were not bought on the black

9 market, but that were issued by the official authorities of the Republic

10 of Serbia, he quite simply acted in accordance with that. But as I've

11 said, that does not diminish the fact in any way that he knew that he had

12 been indicted and that he could have found a way of surrendering.

13 JUDGE ORIE: So let me try to understand this. Let me try to

14 understand. You say these documents was not falsified. It was clear to

15 Mr. Zelenovic that the name on this document was not his but the

16 photograph was his. How possibly could you explain to us that these were

17 regular documents, because that's what I understand you to tell us.

18 I do understand that they were not stolen, that there was no

19 forgery sought by Mr. Zelenovic, but how could he possibly understand

20 these documents which changed his identity to be regularly issued?

21 MR. JOVANOVIC: [Interpretation] Your Honour, precisely. I said

22 that they were just formally issued in a regular procedures -- in a

23 regular procedure. These documents obviously conceal Mr. Zelenovic's

24 identity. But if we can say that the official authorities of a state

25 issue a forgery, then yes.

Page 531

1 JUDGE ORIE: So if I understand the situation that although

2 Mr. Zelenovic, who says, "I started thinking about what happened and I

3 felt remorse," that nevertheless in his conduct he was more guided by

4 official authorities, more people who would fell him to leave Foca, to

5 leave Belgrade, he was more guided by those signals, by those -- and not

6 that much, at least at that time by his remorse towards the victims. Is

7 that a correct understanding of what happened?

8 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Unfortunately

9 that's the way it is. I said something about that in my own remarks when

10 I spoke. The situation in the states the former Yugoslavia is such that

11 there is a negative attitude towards this Tribunal and regrettably that is

12 how Mr. Zelenovic acted. This was not purely an autonomous decision. It

13 was not his decision only not to respond or not to face up to his

14 responsibility already at that time.

15 JUDGE ORIE: Yes, I do understand that. I think, Mr. Zelenovic,

16 you would like to add something. I'll give you an opportunity soon to do

17 so.

18 Before we further -- still looking at the -- at the Russian

19 document, I think that the parties do not fully agree whether the

20 detention started on the 22nd or the 23rd of August, 2005, or at least

21 what should be taken into consideration.

22 Ms. Moeller, do you take 22nd of August as the starting date of

23 detention, or would you consider the 23rd to be the first day of

24 detention, because it was then only that a detention order was issued

25 after Mr. Zelenovic was arrested the day before?

Page 532

1 MS. MOELLER: Your Honours, we would -- we would argue the 23rd

2 was the first day of detention for the accused and it should start from

3 then.

4 JUDGE ORIE: Yes, 23rd. That is not the arrest but the detention

5 order.

6 Mr. Jovanovic, what be your position?

7 MR. JOVANOVIC: [Interpretation] Your Honour, Mr. Zelenovic was

8 arrested on the 22nd of August by the police of the Russian Federation but

9 there was a detention order issued on the 23rd of August, 2005, based on

10 the request of this Tribunal and that is the day when his detention began

11 under the name of Branislav Petrovic, at the demand of the ICTY and after

12 his identity was established.

13 JUDGE ORIE: So you do not understand the language of -- let me

14 just look at the Rule. "Detained in custody pending surrender." You

15 exclude from that deprivation of liberty as a factual consequence of

16 arrest, and you take it that it starts with a detention order.

17 MR. JOVANOVIC: [Interpretation] Your Honour, the decision of the

18 Prosecution of the Russian Federation establishing that Mr. Zelenovic is

19 to be detained at the request of the ICTY bears the date the 23rd of

20 August, 2005.

21 JUDGE ORIE: Yes. Thank you for that answer. Mr. Jovanovic, you

22 suggested that Mr. Zelenovic was very quick in admitting guilt, even

23 before, as you said, the 11 bis hearing could be scheduled, I think you

24 said, or let me just -- well, you said something in relation to that.

25 You also suggested that by admitting guilt that the resources of

Page 533

1 this Tribunal would be under a less burden compared to the situation where

2 a 11 bis proceedings would have been followed. Could you tell us why you

3 think sentencing proceedings take less time than 11 bis proceedings?

4 MR. JOVANOVIC: [Interpretation] No, Your Honour. The fact is that

5 the 11 bis hearing was held before Mr. Zelenovic admitted his guilt, but

6 no decision was issued. Mr. Zelenovic was indicted by the ICTY, detained

7 by the ICTY, and I believe it must be taken that he is under the

8 jurisdiction of this Tribunal.

9 As there is no 11 bis decision, we have to assume he would have

10 been tried before this Tribunal. That's why I pointed out that his

11 admission of guilt several months after he arrived in the Detention Unit

12 of this Tribunal represents a saving of time and resources for this

13 Tribunal.

14 We cannot assert that this case would have been transferred to the

15 national courts of Bosnia and Herzegovina because we have no decision to

16 that effect.

17 JUDGE ORIE: What you said, Mr. Jovanovic, was that it was done as

18 quickly as technically feasible in view of the talks between the

19 Prosecution and the Defence. It was done much sooner than a trial date

20 could be set, for example, or an 11 bis motion lodged.

21 You are, at that time, not talking about whether or not there was

22 a decision, but you emphasised how quick it was, whereas looking at the

23 history, I see that we start with a -- I think a delayed plea. Then we

24 get a plea of not guilty, then an 11 bis motion was filed, and from what I

25 remember, even heard or about to be heard. Just -- it would take us

Page 534

1 drafting one decision and that would have been all the burden for this

2 Tribunal, apart from what it would take -- of course, the decision could

3 be either that Mr. Zelenovic would be tried before this Tribunal or be

4 sent back, and there was a fair chance that 11 bis would -- would take far

5 less time for this Tribunal than -- of course, depending on the outcome.

6 But nevertheless, you are suggesting that by at that point in time to

7 enter a guilty plea that even in relation to 11 bis proceedings it would

8 have saved quite some time for this Tribunal, which is, I wouldn't say

9 impossible, but is not the logical consequence of that decision taken at

10 that stage in the pending proceedings.

11 Would you agree with me, or would you respond to that in a

12 different way? Is my understanding wrong or ...

13 MR. JOVANOVIC: [Interpretation] Your Honour, I will give you the

14 history. When Mr. Zelenovic arrived in the Detention Unit of the ICTY

15 there was certain problems with the appointment of counsel, and that was

16 the reason his first plea hearing was postponed. After I was appointed

17 Mr. Zelenovic's counsel the 11 bis motion was lodged. There was

18 disclosure on several occasions, and as Defence counsel, I had to be

19 familiar with the materials. After going through the materials disclosed

20 to me and during the disclosure itself, the Defence contacted the

21 Prosecution. A factual basis was agreed and finally a plea agreement was

22 reached.

23 If we take it that the 11 bis decision would have been to refer

24 this case to the national court of Bosnia-Herzegovina, then of course we

25 could not speak of any saving of time for this Tribunal. However, it is a

Page 535

1 fact that Mr. Zelenovic is here and we cannot pre-judge the outcome of the

2 11 bis proceedings. The Defence opposed the request by the OTP under Rule

3 11 bis. We can only assume what the decision would have been, but the

4 state of facts right now is that there is no indictment against

5 Mr. Zelenovic before the national court of Bosnia-Herzegovina, that he is

6 now in detention set by this Tribunal, and that it is before this Tribunal

7 that he has pleaded guilty. So he is now under the jurisprudence of this

8 Tribunal.

9 JUDGE ORIE: Yes, I do understand. So what you're actually saying

10 is that the effect on 11 bis proceedings is rather speculative because we

11 would not know what the outcome would have been. That would have been

12 both, positive speculation and negative speculation. Yes? I see you're

13 nodding yes.

14 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

15 JUDGE ORIE: I'm a bit confused by the medical report which speaks

16 about smoking history and about smoking. Is smoking history for

17 Mr. Zelenovic or is it still -- still a habit? Nothing -- I'm not

18 expressing any positive or negative judgement on that, but I just would

19 like to know whether he gave up smoking or whether he still smokes.

20 MR. JOVANOVIC: [Interpretation] Your Honour, the health report was

21 compiled by the doctor of the Detention Unit based on specialist

22 examinations, some in hospital. Mr. Zelenovic spent some time in hospital

23 outside the Detention Unit. His health --

24 JUDGE ORIE: Mr. Jovanovic, I have read the report. I fully

25 understand it. The only thing I'd like to know, whether the present

Page 536

1 situation is one Mr. Zelenovic is suffering consequences of his smoking he

2 had in the past which he gave up, or whether he still smokes.

3 MR. JOVANOVIC: [Interpretation] Your Honour, Mr. Zelenovic no

4 longer smokes, and he has been described by the Detention Unit doctor as a

5 very disciplined patient.

6 JUDGE ORIE: Yes. Mr. Zelenovic, when did you give up smoking?

7 Could you tell it us?

8 THE ACCUSED: [Interpretation] I was a smoker for 30 years. I

9 never stopped. When an X-ray was taken of my lungs here, Dr. Falke told

10 me, "Half of your lungs are no longer working, and if you don't stop

11 smoking, you're finished." Then I was asked by Mr. McFadden for an

12 interview, and he offered me some pills to help me stop smoking. And when

13 I started taking these pills I stopped smoking and now I no longer smoke.

14 Two days ago, I went to the hospital again, and all the check-ups

15 were done all over again.

16 JUDGE ORIE: Yes. And when was that that Mr. McFadden offered you

17 the pills?

18 THE ACCUSED: [Interpretation] As soon as I arrived and the first

19 X-ray was done. When I arrived from Russia.

20 JUDGE ORIE: Yes. Well, at least congratulations with that step

21 in your life.

22 THE ACCUSED: [Interpretation] Thank you.

23 JUDGE ORIE: Then let me see whether I have any other questions.

24 No. At this moment I have no further questions.

25 I suggest this, Mr. Zelenovic, you said you wished to say

Page 537

1 something else. Then we will have the break. During the break the Judges

2 will discuss whether they have any further questions. If so, they will

3 put them to the parties, to you, Mr. Zelenovic. Then the parties will

4 have an opportunity to make some closing remarks, and then we'll adjourn

5 after having given Mr. Zelenovic an opportunity to speak last. I do know

6 that this is not within the -- I would say the adversarial tradition, but

7 nevertheless it's not forbidden either. So Mr. Zelenovic will be given an

8 opportunity to say something at the end and then we will adjourn and

9 consider whether and when to give a decision.

10 Mr. Zelenovic, you have an opportunity because you -- you gave me

11 a signal that you'd like to add something to -- I would say mainly to the

12 Russian story, I think it was. Please proceed.

13 THE ACCUSED: [Interpretation] Yes. Yes, yes. Because when I

14 arrived in Russia, I spent four or five years there and nothing happened.

15 All of a sudden when Milosevic fell ill they arrested me on the 21st. I

16 was in Siberia. It's a place that's four hours by plane from Moscow. I

17 lived there with a woman who is also a lawyer. They said to me, "Dragan,

18 you're under arrest. There is an Interpol warrant out for your arrest.

19 We are not cooperating with them. We'll release you." They said to

20 me, "We do not cooperate with The Hague Tribunal." That was the 20 --

21 that was why there's a confusion about the 21st or the 23rd of August.

22 They arrested me and released me and said, "You're free." But then on the

23 23rd they arrested me again and they said, "We have to wait for a report

24 from Moscow to see what Moscow says." When they put me in prison, the

25 prison was awful. I fell ill when I got to that prison. I asked to be

Page 538

1 taken to The Hague, but they said, "We're going to give you a false

2 passport." And I said, "Give me the original passport." And they said

3 no. And in the April they took me to the airports in Moscow. When I

4 arrived at the airport in Moscow they said, "Milosevic is dead. There's

5 nothing doing, you're going to another prison." And then I said, "Do you

6 want me to wait for somebody else to fall ill and then you'll send me to

7 The Hague again." And they said, "No, no, you're going to another

8 prison." And then when Milosevic died, and that's why they said I was

9 arrested on the 24th of April, and they sent me to another prison,

10 Nizevatovsi [phoen], and there I spent 21 days and then they sent me back

11 to the court in Hanti-Mansiysk [phoen], and there the court released me.

12 It acquitted me, and they told me I was free, and then they took me to the

13 prison to take my things, and they said, "You're under arrest again." And

14 I said, "Why?" And they said, "We don't know what Moscow will say." And

15 they kept me there in detention for a month. And then when the question

16 was to whether to release me or send me to Yugoslavia or send me to The

17 Hague they said, "We don't cooperate with The Hague Tribunal. You're

18 going to Sarajevo." And then they transferred me to Sarajevo. And when I

19 arrived in Sarajevo, my counsel at the time, Dusko Orasanin, I said to

20 him, "If I go to The Hague, I will speak the truth."

21 That's as concerns my passport. They knew I was in Russia all the

22 time.

23 JUDGE ORIE: Yes, but perhaps -- thank you, Mr. Zelenovic, please

24 be seated.

25 Perhaps it would be good if the parties would consider whether

Page 539

1 they are in a position to provide any documentation about the detention

2 since the 23rd of August, because this Chamber, of course, will have to

3 consider what time to be deduced under Rule 01 -- is it 101? Let me just

4 have a look. Yes. "Detained in custody pending surrender to the Tribunal

5 or pending trial or appeal." The story is a bit confusing at the moment.

6 There was an arrest, then there was an immediate release, from what I

7 understand, then there was a detention order on the 23rd of August, then

8 later on it became -- well, Mr. Zelenovic will have an opportunity to add

9 something, that on from that time it was at moments - that's at least how

10 I understand it - unclear whether this detention continued for the

11 purposes of this Tribunal. Mr. Zelenovic explained something to us. I

12 would say it adds rather to my confusion than anything else, but perhaps

13 the parties, there must be a kind of detention history, and perhaps the

14 parties could consider whether there is any possibility to get these

15 things clear. I think it's -- both parties could even work together on it

16 because of course we want to fairly apply Rule 101(C) also to

17 Mr. Zelenovic.

18 Mr. Zelenovic, you again indicated that -- there's something with

19 a -- yes. Yes, Mr. Zelenovic. If I misunderstood you, please correct me.

20 THE INTERPRETER: Microphone, please.

21 JUDGE ORIE: Mr. Zelenovic -- yes, yes.

22 THE ACCUSED: [Interpretation] I was never released. The court

23 acquitted me. And when I came to the prison to take my bag they shut me

24 up again. So I was in prison all the time. I have those documents. The

25 Court acquitted me. But when I got to the prison, they locked me up again

Page 540

1 and they said, "We'll wait to see what Moscow says." And then I sat there

2 for another month without any indictment. And then from that prison I

3 flew to Moscow and then to Sarajevo. I have all those documents, and my

4 counsel has all the documents as to when I was detained in August.

5 JUDGE ORIE: Yes. We have of course we have seen the detention it

6 order, Mr. Jovanovic. We have also seen the decision of the BiH court.

7 If there is anything more or if there is agreement on what actually

8 happened as far as detention is concerned, the Chamber would be assisted

9 by receiving that information. Not necessarily at this very moment.

10 What we'll do now is we'll have a break for half an hour. I

11 suggest to the parties that apart from whether we have any additional

12 questions to the parties or to Mr. Zelenovic that for final submissions 15

13 minutes. Would that be a reasonable suggestion, Ms. Moeller?

14 MS. MOELLER: Certainly, Your Honours.

15 JUDGE ORIE: Mr. Jovanovic, 15 minutes, would that do as well for

16 a final submission, oral submission?

17 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Thank you,

18 yes. The Defence has actually already presented its arguments, so I will

19 be very brief. Basically I've said what there was.

20 JUDGE ORIE: Yes, and I'm not forcing you to use the full 15

21 minutes. We'll adjourn and we'll resume at 10 minutes past 11.00.

22 --- Recess taken at 10.42 a.m.

23 --- On resuming at 11.17 a.m.

24 JUDGE ORIE: I would like to put -- well, first give an

25 opportunity to Judge Van Den Wyngaert to put an additional question, and I

Page 541

1 would have one and a half questions as well.

2 JUDGE VAN DEN WYNGAERT: I have one additional question,

3 Mr. Zelenovic, and the question is the following: You pled guilty, and my

4 question is to what extent your desire not to be sent back under Article

5 11 bis is an element in your guilty plea. Is that something that is part

6 of your motivation or doesn't it have anything to do with it? Thank you

7 very much.

8 THE ACCUSED: [Interpretation] Your Honour, I'm telling you I

9 wanted to tell the truth and I confessed as to what had happened, and I am

10 prepared to bear full responsibility for that. I admitted it.

11 JUDGE VAN DEN WYNGAERT: Is it also an element in your decision

12 that you prefer to be -- the rest of your trial to be held here rather

13 than in Bosnia? Is that an element in your guilty plea or doesn't it have

14 anything to do with it?

15 THE ACCUSED: [Interpretation] No. No, no, no. Nothing to do with

16 it.

17 JUDGE ORIE: Then I have a question to the parties. The last

18 remaining count is -- I'll briefly call it the rape count close to the

19 fish restaurant where only rape is charged and not torture. This concerns

20 two known and two unidentified victims.

21 It's not entirely clear from the context, although there are

22 indicia for it, that the unidentified women were also of Muslim

23 ethnicity. Do the parties agree on that? Is that part of the ...

24 MS. MOELLER: Your Honours.


Page 542

1 MS. MOELLER: As far as the Prosecution is concerned, I think they

2 were also of non-Serb ethnicity.

3 JUDGE ORIE: Yes. Is that also the position the Defence takes?

4 MR. JOVANOVIC: [Interpretation] Your Honour, generally the events

5 described in the indictment and the crimes committed by Mr. Zelenovic were

6 committed on a discriminatory basis. However, if what is stated is that

7 these are persons unidentified, then that directly shows that the identity

8 is known in a way, but the Defence agrees that the crimes were committed

9 on a discriminatory basis and that the victims in the crimes described

10 were women of Muslim ethnicity.

11 JUDGE ORIE: Okay. Having clarified this, now my following

12 question to you, Ms. Moeller, would be there was -- there were a few

13 questions and a few answers in relation to this incident during the --

14 during the hearing in January. The Chamber was asking questions to

15 Madam Uertz-Retzlaff in relation to how this incident was charged, as rape

16 only, not as torture. We then got an answer saying that since it was not

17 in any context of interrogation or investigation that the Prosecution

18 focused here on rape and not on torture, and I just will read a few lines

19 from the transcript. I said: "So, do I understand you well that you say

20 that by the incident near to the fish restaurant there was not, like in

21 other situations, intimidation of third persons?" Ms. Uertz-Retzlaff

22 said, "Yes." And I continued, "Third persons who were observing the

23 victims for purposes of taking away where to that extent there were not

24 third persons present there." And Madam Uertz-Retzlaff said, "Yes, Your

25 Honour. That was the distinction I think that we made at." And then I

Page 543

1 said, "Well, there's still discrimination, or is it not?" Ms.

2 Uertz-Retzlaff said, "Yes, Your Honour." And I said, "So for that reason

3 torture could have been there under --", and Ms. Uertz-Retzlaff said,

4 "Yes, but we've chosen not to do that. We have chosen not to charge in

5 relation to this incident."

6 Now, my question to you is the following: A discriminatory intent

7 could be an aggravating circumstance in relation to rape. Discriminatory

8 intent is not an element of the crime of rape. Now, we see the following

9 situation: Both parties agree that the women raped there were not of

10 Serbian ethnicity. I just heard Mr. Jovanovic saying that Defence accepts

11 that the -- all the rapes why committed with a discriminatory intent. The

12 parties seem to agree on that.

13 Now, the Prosecution has deliberately chosen not to charge

14 torture, also not, as explained by Madam Uertz-Retzlaff, although there

15 was a discriminatory element, a factual discriminatory element threw but

16 you have chosen not to charge torture but only rape. Do you think that

17 the Prosecution, and even the question not only whether you could, but

18 whether you argue that nevertheless do you argue that the discriminatory

19 intent could be taken as a circumstance where you deliberately refrained

20 from charging which one would expect this rape as torture because of that

21 discriminatory element?

22 Yes, Mr. Tochilovsky.

23 MR. TOCHILOVSKY: Your Honour, if I may address this issue. We

24 will submit that first of all that it's not the discrimination intent

25 which makes the acts the crime as a crime of torture. It's -- it's -- we

Page 544

1 would submit that it's the purpose of the intimidation, it's the purpose

2 of violent acts, it's the purpose of the rape which may make these acts

3 the crime of torture. In particular, for instance, if force is used to

4 get information from the victims as we have in some instances in this

5 case, these acts would be -- would be qualified as torture. But the rape

6 itself is -- is a crime which does not need to have elements of torture

7 and -- first of all.

8 Secondly, the discriminatory ground can be -- may be taken into

9 account in seen it issued for crime of torture regardless whether the

10 accused is -- also committed any other crimes, including torture.

11 So what I'm saying that the crime of rape may be committed on

12 discriminatory grounds without having any elements of torture and without

13 having the accused charged with torture.

14 JUDGE ORIE: Well, let me then try to take you back to the

15 language of how I understand torture to be, that is that rape would also

16 be torture if it would be committed with the aim at obtaining information

17 or a confession. You just alluded to that already. Or at punishing,

18 intimidating or coercing the person or a third person or at discriminating

19 on any ground against the victim or a third person.

20 Now, apart from that, it's clear that certainly as explained there

21 were no third persons involved. There was no investigation. There was no

22 interrogation at the time. Nevertheless, if committed as one of the

23 options for the purpose of, or at least with the intent to discriminate on

24 any grounds against the victim or third person, would have justified

25 charging torture next to rape, rape understood as not necessarily with

Page 545

1 discriminatory or any of the other grounds torture.

2 Now, you refrain from qualifying this rape as torture as well. Do

3 you still think that the discriminative elements could be considered an

4 aggravating circumstance to, I would say, a rape without any further

5 qualifications.

6 MR. TOCHILOVSKY: Again, as we see the jurisprudence of this

7 Tribunal and as the Judge has already mentioned, that unless the

8 discrimination is element of the crime like in persecution, it can be

9 considered as an aggravating factor for the crimes, for other crimes

10 listed under Article 5, including rape, including torture, and in this

11 case we can see that those who were selected for rape were selected on

12 discriminatory ground and they were subjected to crime of rape. They were

13 raped by the accused, and so discriminatory ground is present but not as

14 element of the crime and not as -- and not as inherent part of this crime

15 of rape. So it can be considered as an aggravating factor and we would

16 submit it should be considered as an aggravating factor on this case again

17 on the basis of this two main considerations. First of all it's not

18 element of the rape, and secondly it is not the inherent part of the -- of

19 this crime of rape.

20 JUDGE ORIE: But you're not addressing the -- but perhaps I've not

21 been clear enough. You're not addressing what is my real problem. My

22 problem is not whether a rape with discriminatory intent could be charged

23 and then discriminatory intent to be taken into account as an aggravating

24 element. My question is more of a procedural nature where on all rapes

25 you charge in addition torture and then asked about why it was not done in

Page 546

1 this fish restaurant, rape, the answer was there were no third persons

2 involved. Our question there was: But still there was the discriminatory

3 element. And then the answer is: We have decided not to charge that as

4 torture.

5 Whether by that decision you did not deprive yourself from the

6 right to invoke discriminatory -- the discriminatory element as an

7 aggravating circumstance because you took distance from that by not

8 charging it like you had done on all the others. So it's more a

9 procedural question rather than understanding the substantive case law of

10 this Tribunal.

11 MR. TOCHILOVSKY: Yes, I understand, Your Honour. Apparently the

12 Prosecution just exercised its discretionary power not to charge with this

13 crime, the accused, but as to the -- taking into account the

14 discriminatory nature of his acts still the Prosecution think that this

15 factor should be taken into account in sentencing, which means that

16 despite the fact that in this specific incident the Prosecution decided

17 not to go ahead with the torture charges, the Prosecution position is that

18 as to the rape, which is still in this count, with regard to rape the

19 discriminatory -- discriminatory intention be taken into account.

20 JUDGE ORIE: You say it now has procedural consequences that --

21 even under these very specific circumstances where all the other rapes

22 were accompanied by torture.

23 MR. TOCHILOVSKY: Just the Prosecution exercise its discretionary

24 power. We think that it doesn't affect the ...

25 JUDGE ORIE: Okay. That's a clear position.

Page 547

1 I'd like to give an opportunity to the Prosecution to make final

2 submissions, not necessarily taking 15 minutes.

3 And of course, Mr. Jovanovic, if you make your final submissions,

4 of course you could still address the matter just raised because the

5 Chamber would like to hear the position of the Defence on that as well.

6 Ms. Moeller.

7 MS. MOELLER: Thank you, Your Honour. I will be very short and

8 try to save some of the plus time that I used up this morning in the

9 opening where I miscalculated a little bit.

10 First I would like to address one issue that came up when

11 Your Honour Judge Moloto put some questions to the accused, namely the

12 question of when the first indictment was issued. I checked that and the

13 first indictment on which Mr. Zelenovic's name occurs was signed by

14 His Honour Judge Richard Goldstone on 19 June 1996. Maybe that assists

15 the Court.

16 Then regarding Your Honour Judge Orie's question regarding

17 documents relate together detention period of the accused in Russia. To

18 my knowledge, the Prosecution office here does not have any detailed

19 documentation of this period. However, we will try to request whether

20 maybe the Court in Bosnia and Herzegovina has such documents and make them

21 available if we should be able to obtain them as soon as possible.

22 JUDGE ORIE: Yes, or even getting together with Mr. Jovanovic and

23 to see what could be reconstructed.

24 MS. MOELLER: Yes, Your Honours.

25 JUDGE ORIE: In this respect is -- would certainly help.

Page 548

1 MS. MOELLER: Yes. We will do that.

2 Then there was some discussion about the plea agreement in

3 relation to the aspect of time and resources that may be saved through the

4 plea agreement and which mitigating effect this could have. We submit

5 once more that this is certainly a very minor factor that should not

6 dominate any sentencing considerations at all.

7 The real value of this plea agreement as the Prosecution sees it,

8 and the real impact it has is on the victim and the witnesses, and we do

9 submit there it has some considerable weight, positive weight.

10 We see it every day here in ongoing proceedings in the Tribunal

11 that it is very difficult for witnesses to come back and testify a second

12 time or even a third time. And this applies extremely to witnesses who

13 were rape victims. It is very difficult for them to do it once, but to

14 come here again and undergo the whole procedure again is very difficult,

15 in particular, if it is some 15 years, like in this case, after the

16 events happened and some five or six years after they first testified

17 here. These witnesses try to move on with their lives. They try to heal

18 as much as they can, and it is a big burden for them to -- to have to come

19 back and testify again. And whether that be in a trial here or in a

20 referral -- referral trial in Bosnia-Herzegovina does not make a

21 difference, really, we think. So in this regard, we think the plea

22 agreement must have a mitigating effect because it does contribute to the

23 health and healing of the victims in this regard.

24 Now, as to the other mitigating factors that were discussed --

25 JUDGE MOLOTO: Can I interrupt you?

Page 549

1 MS. MOELLER: Certainly, Your Honour.

2 JUDGE MOLOTO: Would you say that the plea agreement that follows

3 flight from justice has any weight and if it does to what extent on the

4 saving of the resources of the Tribunal and all those involved in the

5 tracking down and arrest of the accused?

6 MS. MOELLER: Your Honour, I -- I would say it does have weight.

7 In the ideal world, of course, looking at this first indictment that I

8 referred to, it contained eight accused, including the three accused which

9 were already sentenced by the Court, Kunarac and his two co-accused, then

10 some other persons who have deceased in the meantime and one perpetrator,

11 Stankovic, who was referred down to the court in Bosnia-Herzegovina.

12 Now, in the ideal world all of these eight perpetrators would of

13 course have been tried here in one trial before this Tribunal. That would

14 have been the proper course of justice. But unfortunately the de facto

15 situation until today is that most trials have to start in the absence of

16 co-accused because they don't surrender or they cannot be arrested and --

17 or for other reasons.

18 It is very late, of course, for Mr. Zelenovic to plead guilty now,

19 but we submit it is not too late. This Tribunal is still running. The

20 victims are still it suffering from what they went through, and it still

21 has an impact on whether or not a trial must be held once more about these

22 events, and for this reason, because it does not now have to be held, we

23 do submit it does save hardship for the witnesses and it does also save

24 resources and time for the Tribunal as well as for local courts.

25 Now, the other mitigating factors that have been addressed in this

Page 550

1 hearing as well, we already submitted in the beginning that in our

2 submission they have to have very limited impact on -- on the sentencing

3 considerations because of the extreme gravity of the crime.

4 Now, some more facts have been adduced during this hearing, and I

5 think it is up for Your Honours to consider taking into account these

6 additional facts what weight, if any, to give to the personal

7 circumstances of Mr. Zelenovic regarding his family situation, his health,

8 et cetera. We will not comment further on that from the Prosecution's

9 side.

10 The last point I want to address --

11 JUDGE MOLOTO: Sorry to do this to you.


13 JUDGE MOLOTO: Are you able to cast any light on any medical

14 attention that the accused might be receiving in detention, or is likely

15 to receive if he goes to gaol?

16 MS. MOELLER: As far as I am aware, all detainees are under

17 constant monitoring in the detention regarding their state of health, and

18 many of the accused due to life circumstances or their age do have some

19 medical issues indeed, and as far as we are aware they are probably being

20 taken off -- taken care of by the Detention Unit, and should this accused

21 be imprisonment and be transferred to one of states I think it has been

22 assured bit registry who is in contact with these Member States of the UN

23 who provide the prison for such detention that detainees also receive

24 proper treatment there.

25 JUDGE ORIE: Please proceed, Ms. Moeller.

Page 551

1 MS. MOELLER: The last question I would want to address shortly is

2 remorse and the regret of the accused. We also heard some more from

3 Mr. Zelenovic today about the circumstances as to when he first felt

4 remorse and how it came about he decided to plead guilty to the crimes he

5 committed, and it is obvious that his regret and remorse came late in the

6 day and only came after an indictment had been issued against him. But

7 still, I think it has to be given some weight because of the fact that he

8 is one of the very few perpetrators here at this Tribunal who ever

9 expressed any regret or remorse, and more importantly, who actually really

10 took responsibility for what happened in the area and his individual acts.

11 And in this context, even though there may be some question marks about

12 the remorse and regret expressed, we do submit that it should be taken

13 into account as a mitigating factor to some degree.

14 In the overall assessment, as we submitted in the very beginning,

15 the gravity of the crime is the single most important factor, and this

16 together with the positive impact of the plea agreement we think are the

17 most important considerations for Honourable Judges when deciding on the

18 sentence of this accused. And I would complete my submissions on this

19 point.

20 JUDGE ORIE: One final question, Ms. Moeller. You said it has to

21 be given some weight because of the fact that he is, is one of the very

22 few perpetrators here at this Tribunal who have expressed any regret or

23 remorse.

24 Are you referring to the group of accused who have entered a

25 guilty plea, or were you referring to the accused in general, because I

Page 552

1 have to dig deep in my memory to find a case of someone who pleaded guilty

2 who did not express remorse, and I don't even know whether doing this

3 digging exercise I would find any.

4 MS. MOELLER: Yes, Your Honour. I understand your point, and --

5 and I -- I think you're perfectly right. These perpetrators who decided

6 to enter into a guilty plea usually also express their regress and

7 remorse. So it seems these two things do go together, which is logical to

8 some extent.

9 What I was trying to say is, first of all, in this group of

10 Foca-related perpetrators, whether it be the so-called female side of

11 Foca, meaning all the things that happened to female inhabitants of Foca

12 and its surrounding villages, or the male side, which was also subject to

13 trials at this Tribunal, he is the only person who expressed remorse in

14 front of this Tribunal. And I limit my remarks to this point.

15 JUDGE ORIE: Yes. Thank you for this clarification.

16 Mr. Jovanovic, it's your turn. Please proceed.

17 MR. JOVANOVIC: [Interpretation] Thank you, Your Honours. By your

18 leave, I wish to first refer to the issues raised today in the course of

19 these proceedings.

20 I submitted to the OTP the original document, the detention order

21 of the Russian Federation. After detention was handed down on the 23rd of

22 August, 2005, Mr. Zelenovic did not spend a single day out of detention.

23 The detention was continuous until the moment he was transferred to

24 Bosnia-Herzegovina.

25 While in detention, pursuant to a warrant of the ICTY, he was

Page 553

1 fined by the court of the Russian Federation because he stayed in Russia

2 beyond the deadline established in his visa. A visa issued by the Russian

3 Federation implies that one must leave the country after a certain period

4 of time, which he did not do and he was fined for this. However, the

5 detention was continuous from the 23rd of August, 2005.

6 JUDGE ORIE: May I ask one specific question here? Did

7 Mr. Zelenovic pay that fine?

8 MR. JOVANOVIC: [Interpretation] He was obliged to pay the fine,

9 and I believe he did.

10 JUDGE ORIE: Yes. Well, in many legal systems if you don't pay a

11 fine it is substituted by detention. I'm just trying to find out whether

12 any of this detention may have been for the reason of not paying the fine

13 imposed due to -- to going -- to staying beyond the time that was

14 determined in the visa.

15 MR. JOVANOVIC: [Interpretation] No, Your Honour. There was no

16 decision handed down replacing the fine by a term in prison for reason of

17 non-payment. There was only a fine, which he paid.

18 JUDGE ORIE: Do you know what the fine was, what was the amount?

19 MR. JOVANOVIC: [Interpretation] According to the information I

20 have, it was 20.000 rubles. Unfortunately I don't know what the exchange

21 rate is.

22 JUDGE ORIE: Neither do I. Perhaps Mr. Zelenovic could tell us

23 what the exchange rate of a ruble is.

24 THE ACCUSED: [Interpretation] Your Honours, 700 dollars.

25 JUDGE ORIE: And you paid it by your own means, Mr. Zelenovic?

Page 554

1 THE ACCUSED: [Interpretation] Yes.

2 JUDGE ORIE: Please proceed, Mr. Jovanovic.

3 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

4 JUDGE ORIE: Judge Moloto has another question.

5 JUDGE MOLOTO: You said, Mr. Jovanovic, that while in detention

6 pursuant to an indictment by the ICTY he was detained by the Russian

7 Federation. Do I understand you to say that he went beyond the visa

8 permission while in detention or by the time he was detained had he

9 already gone beyond the visa days, the visa period? In other words, I

10 would like to understand whether -- was he being find for things that were

11 impossible for him to comply with because he was in detention or not?

12 MR. JOVANOVIC: [Interpretation] Your Honour, as I understand it,

13 after he was detained, when his documents were taken, it was established

14 that he had not left Russia when he should have, and for this reason he

15 was fined, when his documents were taken on detention. The detention

16 itself was pursuant to the request of the ICTY.

17 JUDGE ORIE: Please proceed, Mr. Jovanovic.

18 MR. JOVANOVIC: [Interpretation] Thank you, Your Honours. I would

19 now like to briefly address some of the issues I raised previously and

20 also some raised today.

21 Mr. Zelenovic admitted his guilt thereby facing his own

22 responsibility and confirming definitely that crimes of rape and torture

23 as a form of crimes against humanity did happen during the armed conflict

24 in Bosnia and Herzegovina. I feel that this is very important in view of

25 the events in Bosnia-Herzegovina in relation to the processes now under

Page 555

1 way and that they represent a major contribution to reconciliation.

2 Mr. Zelenovic underwent a process over time of thinking over what

3 he had done. He has stated that he began this process in 1995 or 1996.

4 The crimes were perpetrated in 1992.

5 Mr. Zelenovic does not have a criminal record. He is not prone to

6 commit crimes. He has faced his responsibility for what he did. He

7 committed serious crimes. Had he thought about it, he would not have

8 committed them.

9 Over a period of time, thinking over what he had done, he came to

10 the conclusion that he was responsible and expressed his remorse for his

11 actions and regret for all the suffering of the victims. The fact that he

12 did not face justice until the time of his arrest and all the

13 circumstances attending this show that this was not his individual

14 decision alone. Of course, his is the major share of responsibility for

15 this, but I feel that the other circumstances which still exist have to be

16 taken into consideration as there are a number of accused still at large,

17 who you fugitives from justice and who could not be fugitives from justice

18 if they were not receiving the support and assistance of others, including

19 the state.

20 Mr. Zelenovic, by his admission, made some restitution to the

21 victims by confirming that these acts really occurred. This, of course,

22 cannot take away from the victims all their suffering and bad memories,

23 but he did confirm that they were indeed victims. At the same time, he

24 spared them the suffering that would have been caused had they had to face

25 the accused, come to testify at the proceedings, and evoke again their

Page 556

1 memories of these events.

2 Mr. Zelenovic agreed to cooperate with this Tribunal fully in any

3 way required by the Prosecution and the Court. Mr. Zelenovic stated that

4 he was aware of the gravity of his crimes, that he accepted

5 responsibility, and that he was awaiting his sentences -- sentencing and

6 that he would accept any sentence handed down by the Chamber.

7 I only wish to point out that the fact that Mr. Zelenovic has

8 accepted responsibility for crimes of this kind, and this is the first

9 time in the history of this Tribunal that somebody has pleaded guilty to

10 rape and all the other circumstances meet to a certain degree the purposes

11 of sentencing. And I think that all the mitigating circumstances and the

12 personal circumstances of the accused should be taken into account when

13 deciding on the sentence.

14 The Defence abides by its proposal that a 7 to 10-year sentence be

15 handed down in full awareness of the gravity of the crimes, but also aware

16 of the fact that this Tribunal has in the past sentenced perpetrators of

17 heinous and cruel crimes, taking any account all the circumstances and

18 handing down sentences which were always much milder when a plea agreement

19 had been reached than they would have been had there been a trial.

20 Thank you, Your Honours. I would conclude on that note.

21 JUDGE ORIE: Thank you, Mr. Jovanovic.

22 Before I give an opportunity to Mr. Zelenovic to make a statement,

23 I've got one question to both parties. Reference was made to sentencing

24 before this Tribunal in various cases. Related cases have been referred

25 to Bosnia-Herzegovina. I'm referring to Jankovic -- Stankovic, which by

Page 557

1 now resulted in a judgement. I'm not fully aware on whether these are

2 final judgements, but, at least, would the parties consider it appropriate

3 for this Bench to orient itself in relation to sentencing practices in the

4 former Yugoslavia to these judgements as well, because nothing has been

5 said about it. So I would like to know what the position of the parties

6 is in this respect.

7 MS. MOELLER: Your Honours, we didn't address this aspect because,

8 to my knowledge, these are first instance judgements --


10 MS. MOELLER: -- who have not yet been confirmed by the Appeals

11 Chamber. And also, I don't think we have the judgements already in-house

12 here. So I would be reluctant to say it's comparable, the gravity of the

13 crimes therein are comparable with what this accused did. I can say that

14 with the Kunarac et al. case because we have all judgements.

15 It is notable that for the second -- the most recent judgement

16 against Gojko Jankovic, I think, which was a very high sentence of 35

17 years, what I could see from the press notes and the homepage of the

18 Bosnia-Herzegovina court he was convicted for murder charges and other

19 charges so it went beyond sexual assault charges only which may make a

20 difference. And also for command responsibility which does not apply to

21 this accused.

22 Now, the other judgement I think contained a sentence of 16 years,

23 and I think it is a more comparable case because it -- it concerns

24 Mr. Stankovic who was also one of the co-perpetrators who was indicted in

25 this first indictment in 1996 which I referred to earlier.

Page 558

1 JUDGE ORIE: Yes. From what I think to know is that there is an

2 English version of the Stankovic judgement. Do I understand you well that

3 you say, "Well, from what I know from Jankovic, it would not be a good

4 idea to orient ourselves on that judgement because it's such a different

5 case, but for Stankovic, if there would be an English version available,

6 it would not be appropriate for Trial Chamber to look at that as well."

7 MS. MOELLER: Yes, that would summarise my position. Thank you.

8 JUDGE ORIE: Mr. Jovanovic.

9 MR. JOVANOVIC: [Interpretation] Your Honour, as my learned friend

10 of the Prosecution said, these are judgements that have not become final

11 in terms of Stankovic and Jankovic. The indictment against Gojko Jankovic

12 against the national court of Bosnia-Herzegovina contains far graver

13 charges than defined in these proceedings against Dragan Zelenovic. It's

14 an amended indictment. He's been charged with murder as well, and also in

15 terms of command responsibility.

16 Ms. Uertz-Retzlaff and I discussed the matter when we were about

17 to conclude the plea agreement. It was then that the Stankovic verdict

18 was passed, 16 years. The Defence is aware of that. But both parties

19 came to the conclusion that we would not highlight that.

20 JUDGE ORIE: Yes, I do understand that you have not drawn the

21 attention to it. I mean, that is what I established before. My question

22 was whether you would find it inappropriate if we look at these judgements

23 for our orientation on sentencing practices in the former Yugoslavia. And

24 you heard that Ms. Moeller said Jankovic would not be a good idea.

25 Stankovic is different. It comes closer to this case and might therefore

Page 559

1 assist.

2 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. As far as the

3 incidents included in this indictment are concerned and also in the

4 Stankovic indictment. From that point of view, yes. But the position of

5 the Defence has been that sentencing practice -- or, rather, the Defence

6 took into account the sentences passed in cases where plea agreements had

7 been reached before this Tribunal, that is to say where circumstances were

8 taken into account such as remorse, admission of guilt and all other

9 circumstances emphasised on the occasions. There are mitigating

10 circumstances presented here presented by the Prosecutor and the Defence.

11 We agree in part on some of these; however, the judgement from the

12 national court of Bosnia and Herzegovina simply does not contain such

13 elements that would make it relevant from this point of view.

14 JUDGE ORIE: Well, Mr. Jovanovic, if you would orient yourself to

15 other judgement, of course, you would also keep in mind -- you would

16 always keep in mind what is similar and what is different. For example,

17 if we would orient ourselves just assuming that we would we have not

18 decided that yet the Stankovic judgement, of course one of the clear

19 differences is Mr. Stankovic, as far as I'm aware of, did not enter a

20 guilty plea. So therefore that would be one of the obvious differences.

21 But of course the case has other similarities.

22 I'm still not quite clear on your answer. Do you say, No, even

23 Stankovic would be inappropriate or would you say, Look at it, but clearly

24 keep in mind that there are differences apart from similarities?

25 MR. JOVANOVIC: [Interpretation] As I've already said, Your Honour,

Page 560

1 there are similarities in respect of the incidents involved and the time

2 period. They pertain to the same time period and what took place in Foca.

3 JUDGE ORIE: It's still not an answer to my question --

4 MR. JOVANOVIC: [Interpretation] However --

5 JUDGE ORIE: -- question is. Yes.

6 MR. JOVANOVIC: [Interpretation] By all means that judgement can be

7 appraised, but in view of all the circumstances involved in the plea

8 agreement between the Prosecutor and the Defence the result of our talks

9 and agreement was -- rather, the assessment of both parties was that the

10 Trial Chamber would not take into account the practice of the national

11 court of Bosnia-Herzegovina. As I said, it is not a final judgement, and

12 as far as I know both parties are going to appeal.

13 JUDGE ORIE: Thank you for that answer.

14 [Trial Chamber confers]

15 JUDGE ORIE: The Chamber has considered the issue on whether or

16 not to look at that judgement. Of course, we could say that it's -- it's

17 published case law and therefore it's -- the Chamber is free to compare

18 whatever judgements, whether final judgements, whether not final yet, to

19 orient itself. I mean, it's just a source of law even if it's not perhaps

20 a definite judgement. The Chamber is seriously considering to at least

21 have a look at the Stankovic judgement, fully aware that it's not final

22 yet, but it's the only thing we have at this moment so much related. If,

23 however, if it might come as a surprise to the parties who -- well, I

24 wouldn't say kept it away from us because if the parties would like for

25 any reason to keep a very short submission and say please be aware that

Page 561

1 Mr. Stankovic was always yelling in court and was always insulting the

2 judgements so that may have explained -- well, whatever it was, if there's

3 anything you would like to bring to our attention, apart from our

4 assurance that of course if we compare cases for purposes of sentencing,

5 and we'll have to do that in order to strive at the best equality we can

6 provide to accused. So don't think that we just look at so many years but

7 of course we'll have a closer look to it then, but if there's anything,

8 and if this would come as a surprise to you that this would be one of the

9 sources we might take into consideration, reply upon, use as orientation,

10 then you'll have until next week Wednesday to make any brief written

11 submissions. Just in one round. We're not going to start full, new

12 litigation.

13 This is not an encouragement, but at the same time we would not

14 deprive you from the possibility to do that. That is one.

15 Any further documentation on Russia is welcomed. At the same

16 time, Ms. Moeller, I noticed that there was challenge from the

17 Prosecution's side to the statement by Mr. Jovanovic that on from the 22nd

18 or 23rd of August that Mr. Zelenovic spent -- up till the moment when he

19 was transferred to Bosnia-Herzegovina he spent uninterruptedly all his

20 time in detention. I notice you didn't challenge that, but any further

21 documentation could give a more solid ground, perhaps, for -- for any

22 finding in this matter.

23 Yes?

24 MR. JOVANOVIC: [Interpretation] Yes. Thank you, Your Honour. I

25 would just like to know whether it's necessary for me to submit the

Page 562

1 decision on detention in the original, if the Chamber wishes to assess

2 that.

3 JUDGE ORIE: I think there's no challenge as to the authenticity

4 of the copy that has been provided to the Chamber, so I don't think that

5 that would be necessary. Our concern would be whether this detention

6 order was enforced during the full period of time and whether there was

7 any change in the title on which Mr. Zelenovic was detained. So therefore

8 there's no need to give that to us in the original. Yes?

9 Then, Mr. Zelenovic, we are now --

10 MR. JOVANOVIC: [Interpretation] Thank you.

11 JUDGE ORIE: I promised to give you an opportunity to make a brief

12 statement. Please proceed.

13 THE ACCUSED: [Interpretation] Your Honour, I've said everything.

14 Now it is up to you. I will bravely accept any decision that you pass,

15 and I will go through with it. That would be it.

16 JUDGE ORIE: Yes, Mr. Zelenovic. And when you say, "I've said

17 everything," the Chamber understands that to be a reference to things you

18 earlier said including remorse, including what you expressed in relation

19 to your guilty plea and what this would mean for all, but especially for

20 the victims. Is that well-understood?

21 THE ACCUSED: [Interpretation] Yes. Yes. I refer to my remorse in

22 respect to the victims and everything.

23 JUDGE ORIE: Thank you. That's clear to us, Mr. Zelenovic.

24 We -- this concludes this sentencing hearing. The Chamber stands

25 adjourned and will give its Sentencing Judgement in due course.

Page 563

1 --- Whereupon the Sentencing Hearing adjourned

2 at 12.12 p.m.