"Sentencing Judgement"

13 November 2001
Trial Chamber III (Judges Patrick Robinson [Presiding], Richard May and Mohamed El Habib Fassi Fihri)

Procedural Background

• The three co-accused were charged with crimes allegedly committed against the non-Serb population over a period of three months in the summer of 1992 in the municipality of Prijedor in north-western Bosnia and Herzegovina and, in particular, at a detention facility known as the Keraterm camp. Dusko Sikirica, the alleged commander of the Keraterm camp, was initially charged with genocide, complicity to commit genocide, persecution as a crime against humanity and violations of the laws or customs of war. Damir Dosen and Dragan Kolundzija, alleged to have been shift leaders in the Keraterm camp, were both charged with persecution as a crime against humanity and violations of the laws or customs of war.

• The trial began on 19 March 2001.

• Further to a motion for acquittal submitted at the close of the Prosecution case, the Trial Chamber dismissed the counts of genocide against Dusko Sikirica and the counts charging Damir Dosen with torture, inhumane acts and cruel treatment1.

• After the presentation of evidence in Dusko Sikirica and Damir Dosen's Defence cases, on 31 August 2001 Dragan Kolundzija and the Prosecution filed a joint submission in which they notified the Trial Chamber of the accused's decision to plead guilty to the charge of persecution. At a hearing before the Trial Chamber, Dragan Kolundzija entered his guilty plea to Count 3 of the indictment, i.e. persecution as a crime against humanity. The Trial Chamber accepted the guilty plea and the Prosecution withdrew the remaining counts against him.

• Similarly, on 7 September 2001, the Prosecution, Dusko Sikirica and Damir Dosen filed joint submissions in which they notified the Trial Chamber of their decision to plead guilty to the charge of persecution. Each accused entered a plea of guilty to Count 3 of the indictment, i.e. persecution as a crime against humanity, which the Trial Chamber accepted and the Prosecution subsequently withdrew the remaining counts against them. The Trial Chamber held that although it was free to reject the guilty pleas once it had accepted them, sentence should be imposed on the basis of the facts agreed between the parties as set out in the Plea Agreements.

• Each of the Plea Agreements conceded that there was ample evidence to show that the Bosnian Muslims, Bosnian Croats and other non-Serbs were subjected to inhumane conditions during their confinement in the Keraterm camp from about 24 May 1992 to 5 August 1992. These included insufficient food and water, inadequate medical care and treatment, overcrowding and lack of opportunities for fresh air and exercise, and lack of proper hygiene. Each of the Plea Agreements reflected the understanding that the count of persecution to which each accused had pleaded guilty encompassed detailed evidence. The criminal conduct underlying each of the accused's convictions for persecution is contained in the factual basis set out in each of the Plea Agreements. Lastly, the Prosecution and the Defence agreed that the Prosecution would recommend to the Trial Chamber a sentence of no less than 10 years and not more than 17 for Dusko Sikirica, not less than 5 years and not more than 7 for Damir Dosen and not less than 3 years and not more than 5 for Dragan Kolundzija. They also agreed that neither party would appeal any sentence within these ranges imposed by the Trial Chamber2.

• The sentencing hearings were held on 8 and 9 October and in addition to the closing arguments, each of the convicted persons made a statement to the Trial Chamber in which they expressed remorse3.
  

The Reasoning

• The Trial Chamber considered the factors relevant to a determination of an appropriate sentence. It took into account the gravity of the offence including any aggravating factors, the mitigating circumstances and the general practice regarding prison sentences in the courts of the former Yugoslavia. The Trial Chamber found that, under the criminal provisions in effect at the relevant time, the crime of persecution would have attracted a sentence of between 5 and 20 years4. It examined the mitigating circumstances and heard submissions on co-operation with the Office of the Prosecutor but "concluded that they were not of sufficient substance as to affect its decision."5 The Trial Chamber then considered the case of each accused in turn:

• Dusko Sikirica admitted to being the Commander of Security at the Keraterm camp between 14 June and 27 July 1992. While the accused performed some administrative functions, he did not have any role in the effective administration of Keraterm which was conducted from Prijedor II police station by Zivko Knezevic under the general authority of Simo Drljaca of the Crisis Staff. Dusko Sikirica had very limited authority over his equally ranked reserve police colleagues and did not himself have the power to punish any person subordinate to him. The accused was not responsible for ensuring adequate food, clothing, water, medical assistance and satisfactory accommodation for the detainees.

Dusko Sikirica admitted to killing one of the detainees in the camp by shooting him in the head. Moreover, the accused admitted that there was considerable evidence concerning the murder of other individuals at the Keraterm camp during the period of his duties. It was agreed however that there was no evidence of his presence during the massacre of over one hundred people in Room 3 or that he participated in any way in that massacre. In addition to the killings, Dusko Sikirica admitted that there was evidence that beatings, rape and sexual assault, harassment, humiliation and psychological abuse of the detainees occurred in the camp. The accused further admitted that there was ample evidence that the detainees were subjected to inhumane conditions during their confinement there.

Aggravating circumstances: the Trial Chamber regarded as aggravating factors (1) "Dusko Sikirica's failure in his duty to prevent outsiders from coming into the camp to mistreat the detainees"6 and (2) his "position of authority within the camp […] in respect of the murder of one of the detainees in the camp". It underscored that "this act must have left the impression that this conduct was encouraged (or at least not subject to sanction) and contributed to the overall atmosphere of terror that existed in the camp over the relevant period."7

Mitigating circumstances: although the Trial Chamber took into account his expression of remorse, it found that the primary factor to be considered in mitigation of Dusko Sikirica's sentence was his decision to enter a guilty plea8.

It emphasised that "[a] guilty plea facilitates the work of the Tribunal in two ways." First, by entering a plea of guilt before the commencement of his trial, an accused saves the Tribunal "the time and effort of a lengthy investigation and trial." Second, "notwithstanding the timing of the guilty plea, a benefit accrues to the Trial Chamber because a guilty plea contributes directly to one of the fundamental objectives of the Tribunal", i.e. "its truth-finding function."9

Accordingly, the Trial Chamber found that "while an accused who pleads guilty to the charges against him prior to the commencement of his trial will usually receive full credit for the plea, one who enters a plea of guilt any time thereafter will still stand to receive some credit", even though he would have received more, "had the plea been made prior to the commencement of the trial."10

Therefore, it held that "despite the lateness of his guilty plea, Dusko Sikirica should receive some credit for the plea."11

In order to accept the expressed remorse as a factor in mitigation, the Trial Chamber must be satisfied that it is sincere. In this regard, it recalled the statement of Dusko Sikirica during the sentencing hearing in which he expressed remorse for his crimes. It held the opinion that "his expression of remorse was sincere" and took it "into account in mitigation of sentence."12

• Damir Dosen admitted that he was a shift leader of 6 to 12 men at the Keraterm camp from 3 June to early August 1992 and as such, exercised some limited authority although he did not hold any rank and was of the same seniority as the other guards on his shift. Damir Dosen did not have the power to punish anybody, had no role in the administration of the camp and was not responsible for ensuring adequate supplies of food, clothing, water, medical assistance and satisfactory accommodation.

The accused admitted that there was evidence that beatings occurred during his shift and that he was aware of them. However, there was also evidence that on several occasions Damir Dosen attempted to prevent mistreatment of the detainees. The accused also admitted that beatings caused both serious physical and mental harm to the victims and mental harm to those who witnessed them. Damir Dosen also accepted that there was ample evidence to show that the detainees were subjected to inhumane conditions during their confinement at the Keraterm camp.

Aggravating circumstances: the Trial Chamber expressed the view that Damir Dosen's position as shift leader was "an aggravating factor in relation to this crime." It specified that "[h]e was in a position of trust which he abused: he permitted the persecution of, and condoned violence towards, the very people he should have been protecting." However, the Trial Chamber pointed out that "the amount of aggravation must be limited in light of the limited nature of his authority."13

Mitigating circumstances: the Trial Chamber took into account three elements in mitigation of the accused's sentence, i.e. (1) his guilty plea, (2) his remorse and (3) the assistance he provided to some of the detainees at the Keraterm camp. First, it considered that "despite the lateness of his guilty plea, Damir Dosen should receive some credit."14 Second, the Trial Chamber recalled the statement of the accused during the sentencing hearing in which he expressed remorse for his crimes. It regarded his expression of remorse as sincere and treated it "as a mitigating factor, albeit of limited effect, in the determination of his sentence."15 Third, the Trial Chamber also took into account the evidence that, as shift leader, Damir Dosen often acted to ameliorate the terrible conditions which prevailed in the Keraterm camp in relation to particular detainees. It considered that the accused's acts in this regard constituted "a mitigating factor for purposes of sentencing."16 By contrast, the Trial Chamber did not consider Damir Dosen's alleged diminished mental capacity at the time his crimes were committed as a mitigating factor in the circumstances of this case17.

• Dragan Kolundzija admitted to being a shift leader at the Keraterm camp from early June to 25 July 1992. As such, he had some control over 6 to 12 guards on his shift and thus exercised some authority in the Keraterm camp. Dragan Kolundzija admitted that he was in a position to influence the day-to-day running of the camp when on duty.

There was no evidence that the accused personally mistreated or condoned the mistreatment of detainees by others. Dragan Kolundzija accepted that there was evidence that mistreatment occurred regularly at the Keraterm camp during the period when he was a shift leader and he also accepted responsibility for continuing as a shift leader despite being aware of the inhumane camp conditions. The accused admitted, in particular, that there was ample evidence that the detainees were subjected to inhumane conditions during their confinement at the Keraterm camp.

Aggravating circumstances: the Trial Chamber found that Dragan Kolundzija was in a similar position in the camp to that of Damir Dosen, i.e. "a shift leader with limited authority." It stressed that "[b]y continuing as a shift leader, although aware of the conditions, he was abusing his position of trust" which amounted "to an aggravating factor in his case, albeit limited in line with his authority."18

Mitigating circumstances: the Trial Chamber considered two elements in mitigation of sentence, i.e. (1) Dragan Kolundzija's guilty plea and (2) his favourable treatment of the detainees19.

First, it observed that, unlike his two co-accused, Dragan Kolundzija pleaded guilty before the presentation of evidence in the Defence case although after the close of the Prosecution's. The Trial Chamber considered the additional savings to the Tribunal as a result of the accused's more timely guilty plea and that "although not made at the commencement of the proceedings, Dragan Kolundzija should receive close to full credit for his guilty plea."20

Second, on the basis of the ample evidence of Dragan Kolundzija's efforts to ease the harsh conditions in the Keraterm camp for many of the detainees, the Trial Chamber considered that the accused "should receive a significant reduction in his sentence."21

It also recalled that Dragan Kolundzija made a statement during the sentencing hearing in which he expressed remorse for his crimes. The Trial Chamber found it sincere and took it "into account in mitigation of sentence."22

The Sentencing Judgement

The Trial Chamber imposed on Dusko Sikirica, Damir Dosen and Dragan Kolundzija sentences of 15, 5 and 3 years' imprisonment respectively.

________________________________________
1. The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III, Judgement on Defence Motions to Acquit, 3 September 2001 (summarised in Judicial Supplement No. 27).
2. Paras. 25, 31 and 37.
3. Rule 84 bis (A) of the Rules provides that "[a]fter the opening statements of the parties or, if the defence elects to defer its opening statement pursuant to Rule 84, after the opening statement of the Prosecutor, if any, the accused may, if he or she so wishes, and the Trial Chamber so decides, make a statement under the control of the Trial Chamber. The accused shall not be compelled to make a solemn declaration and shall not be examined about the content of the statement."
4. Para. 116.
5. Para. 111.
6. Para. 139.
7. Para. 140.
8. Para. 148.
9. Para. 149. See The Prosecutor v. Stevan Todorovic ("Bosanski Samac"), Case No. IT-95-9/1-S, Trial Chamber III, Sentencing Judgement, 31 July 2001 (summarised in Judicial Supplement No. 26), para. 81.
10. Para. 150.
11. Para. 151.
12. Para. 152.
13. Para. 172.
14. Para. 193.
15. Para. 195.
16. Para. 195.
17. Paras. 196 and 199.
18. Para. 210.
19. Para. 227.
20. Para. 228.
21. Para. 229.
22. Para. 230.