The Prosecutor v. Biljana Plavsic - Case No. IT-00-39&40/1-S

“Sentencing Judgement”

27 February 2003
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 10 January 2001 Biljana Plavsic voluntarily surrendered to the International Tribunal.¹

· On 11 January 2001 the Accused made her initial appearance before Trial Chamber III and pleaded not guilty to all counts (genocide, complicity in genocide, crimes against humanity – persecutions, extermination and killing, deportation and inhumane acts). She was remanded to the United Nations Detention Unit.

· On 29 August 2001 the Trial Chamber ordered that the Accused be provisionally released to live in the Republic of Serbia and she has remained on provisional since, apart from her appearance at the Sentencing Hearing.

· On 2 October 2002 the Accused pleaded guilty to Count 3, persecutions as a crime against humanity. The Trial Chamber then entered a finding of guilt pursuant to Rule 62bis of the Rules.²

· On 20 December 2002 the Trial Chamber granted the Prosecution’s motion to dismiss the remaining counts of the Indictment, as agreed by the parties in the Plea Agreement dated 30 September.³

· On 16-18 December 2002 a Sentencing Hearing was held at which the Parties called evidence and made submissions. At the conclusion of the hearing, the Trial Chamber adjourned the case to consider sentence.

· Biljana Plavsic returned to the Detention Unit on the eve of the Judgement hearing and is remanded since then.

The Sentence

The Trial Chamber sentenced Biljana Plavsic to 11 years’ imprisonment.⁴

The Reasoning

The factual basis agreed⁵

Count 3 of the Indictment, to which the Accused pleaded guilty, alleges that between 1 July 1991 and 30 December 1992 the Accused, acting individually and in concert with others in a joint criminal enterprise, planned, instigated, ordered and aided and abetted persecutions of the Bosnian Muslim, Bosnian Croat and other non-Serb populations of 37 municipalities in Bosnia and Herzegovina (“BH”).

A written Factual Basis for the crime described above and for participation of the Accused was filed with the Plea Agreement. The Factual Basis was agreed by the Accused and forms the basis upon which the Trial Chamber passed sentenced. It deals with the career of the Accused, the background, the events of 1992 and the roles of the leaders.

The Sentencing Factors

Pursuant to Article 24 of the Statute⁶ and Rule 101 of the Rules⁷, in determining sentence, the Trial Chamber took into account the following factors: “the gravity of the crime; any aggravating circumstances; any mitigating circumstances; the general practice regarding prison sentences in the courts of the former Yugoslavia”.⁸

The Gravity of the Crime

The Trial Chamber described the crime as “a crime of utmost gravity, involving as it does a campaign of ethnic separation which resulted in the death of thousands and the expulsion of thousands more in circumstances of great brutality”.⁹ For the Trial Chamber, the gravity of the crime is illustrated by: “the massive scope and extent of the persecutions; the numbers killed, deported and forcibly expelled; the grossly inhuman treatments of detainees; and the scope of the wanton destruction of property and religious buildings”.¹⁰

Aggravating circumstances

The Prosecution identified three aggravating factors: the leadership position of the Accused¹¹; the vulnerability of the victims; the depravity of the crimes to which the victims were subjected. The Defence accepted that the scope of the crimes and the manner in which they were committed may be taken into account as an aggravating factor and accepted other factors such as the scale and planning of the offence, the number of victims or the violence associated with the crimes. The Defence did not however accept that the high rank of the Accused should by itself result in a harsher sentence, submitting – in light of the Krstic Trial Judgement - that while the direct participation of a high level superior is an aggravating circumstance, the extent of such aggravation depends on the level of authority and the form of participation of the accused.¹²

The Trial Chamber held that the superior position of the Accused is an aggravating factor in the present case. It found that the Accused had a “lesser role” in the execution of the plan than others but that, by her participation in the Presidency and her pronouncements, she encouraged and supported that plan. The Trial Chamber accepted that “the vulnerability of the victims and the depravity of the crimes are capable of amounting to aggravating factors” but considered that, in the present case, these factors are “essentially subsumed in the overall gravity of the offence ”. The Trial Chamber did not treat them as aggravating factors separately.¹³ It disagreed with the Prosecution’s statement at the Sentencing Hearing that in the absence of a guilty plea a sentence of life imprisonment would have been appropriate but also found that “misplaced leniency would not be fitting and that a substantial sentence of imprisonment is called for”.

Mitigating Circumstances

The Trial Chamber attached great weight to Mrs. Plavsic’s guilty plea (and to her remorse and call for reconciliation) and post-conflict conduct. It also attached weight to her voluntary surrender and age.

The guilty plea (together with remorse and reconciliation)

The Trial Chamber found that “the significance of the plea of guilty in this case was highlighted in the evidence of Professor Elie Wiesel¹⁴ [who] said that whereas others similarly accused deny the truth about their crimes and thereby assist those who want to falsify history, Mrs. Plavsic, who once moved in the highest circles of power, has made an example by freely and wholly admitting her role in the crime”.¹⁵ The Accused indeed stated that “[b]y accepting responsibility and expressing her remorse fully and unconditionally, [she] hopes to offer some consolation to the innocent victims […] of the war in Bosnia and Herzegovina”.¹⁶ The Trial Chamber accepted her remorse and underlined the “significance circumstance to be considered, namely the role of the guilty plea of the Accused in establishing the truth in relation to the crimes and furthering reconciliation in the former Yugoslavia”.¹⁷ It concluded that “ the guilty plea of Mrs. Plavsic and her acknowledgement of responsibility, particularly in the light of her former position as President of Republika Srpska, should promote reconciliation in Bosnia and Herzegovina and the region as a whole”.¹⁸

The post-conflict conduct

The Trial Chamber accepted that, as President of Republika Srpska, the Accused “demonstrated considerable support for the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“Dayton Agreement”) after the cessation of hostilities in Bosnia and Herzegovina”.¹⁹ It took into account the testimony of witnesses who underscored her support for the Dayton Agreement²⁰, as well as the submissions of the parties. It concluded that it was “satisfied that Mrs. Plavsic was instrumental in ensuring that the Dayton Agreement was accepted and implemented in Republika Srpska [and that] [a]s such, she made a considerable contribution to the peace in the region and is entitled to pray it in aid in mitigation of sentence”.²¹

Age

The Defence asserted that age is a mitigating factor in sentencing and that any prison term imposed on the Accused must take into account her age, life expectancy and general health. It alleged that any sentence in excess of 8.2 years²² is tantamount to life imprisonment and would constitute inhumane or degrading punishment. It referred to the General Report on the Treatment of Long-Term Prisoners prepared by Sub Committee No. XXV of the European Committee on Crime Problems in 1975, according to which “it is inhuman to imprison a person for life without any hope of release”.

The Trial Chamber noted that “there is no authority of the International Tribunal as to the effect of advanced age on determining sentence”.²³ Indeed the sole reference to age in a Judgement is found in Krnojelac: “[t]he final matter to which the Trial Chamber has had regard in sentencing is the fact that the Accused, Milorad Krnojelac, is now 62 years of age”.²⁴

It noted that nothing in the Statute or in international human rights law prevents a court from imposing a sentence or a life sentence on an offender of advanced age . The European Court of Human Rights did find that the combination of age and state of health of an accused could make his imprisonment incompatible with Article 3 of the European Convention on Human Rights (prohibition of inhumane or degrading punishment)²⁵, but the Trial Chamber in the present case did not find that the health of the Accused was at issue.²⁶

While “not persuaded […] that a calculation of the Accused’s life expectancy is a crucial factor in determining sentence”²⁷, the Trial Chamber did consider that it should take into account the age of the Accused and did so for two reasons: “First, physical deterioration associated with advanced years makes serving the same sentence harder for an older than a younger accused . Second, as the New South Wales Court of Appeal observed in Holyoak²⁸, an offender of advanced years may have little worthwhile life left upon release”.²⁹

The Trial Chamber thus preferred the approach of the English Court of Appeal in R. v. S., whereby the Court undertook to “arrive at an appropriate sentence commensurate with the seriousness of the offences having regard to the age, infirmities and the circumstances” of the appellant³⁰, i.e. “determine[d] an appropriate sentence corresponding to the gravity of the offence, taking into account the age and the circumstances of the Accused”.³¹

Determination of sentence

The Trial Chamber considered all the factors concerning the gravity of the offence and the aggravating and mitigating circumstances. It also considered the need for retribution and deterrence and the general practice regarding prison sentences in the courts of the former Yugoslavia. It found that “the Prosecution […] has given insufficient weight to the age of the Accused and the significant mitigating factors connected with her plea of guilty and post-conflict conduct”³² but considered that “the Defence has made no recommendation as to an appropriate sentence, submitting that since the life expectancy of the Accused is eight years, any sentence beyond that would amount to life imprisonment and would be inappropriate”.³³ The Trial Chamber held that life expectancy is irrelevant and considered that a sentence of eight years’ imprisonment “would fail to meet the gravity of this offence”.³⁴

It concluded that “[n]o sentence which the Trial Chamber passes can fully reflect the horror of what occurred or the terrible impact on thousands of victims” and sentenced Biljana Plavsic to 11 years’ imprisonment.³⁵

________________________________________
1. The Indictment against the Accused was originally confirmed by Judge Wald on 7 April 2000 and remained sealed until the surrender of the Accused. A consolidated Indictment against the Accused and Momcilo Krajisnik was confirmed on 23 February 2001 by Judge May and an amended Indictment against the two Accused was confirmed by the same Judge on 4 March 2002 (the “Indictment”).
2. Rule 62bis (Guilty Pleas) If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty and the Trial Chamber is satisfied that:
(i) the guilty plea has been made voluntarily;
(ii) the guilty plea is informed;
(iii) the guilty plea is not equivocal; and
(iv) there is a sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case, the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.
3. Decision Granting the Prosecution’s Motion to Dismiss Counts 1, 2, 4, 5, 6, 7, and 8 of the Amended Consolidated Indictment, 20 December 2002.
4. Biljana Plavsic is entitled to the credit for the time served since her surrender (245 days).
5. Factual Basis for Plea of Guilty (“Factual Basis”), 30 September 2002.
6. Article 24 (Penalties)
1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.
7. Rule 101 (Penalties)
(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:
  (i) any aggravating circumstances;
  (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;
  (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
  (iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.
(C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.
8. Para. 21.
9. Para. 52.
10. Ibid.
11. Biljana Plavsic was elected as Serbian Representative to the Presidency of the Socialist Republic of BH on 11 November 1990 until December 1992. From 28 February to 12 May 1992 she was acting co-President of the Republic of BH and of the Serbian Republic of BH and from May until December 1992 was a member of the collective and expanded Presidencies of Republika Srpska.
12. Krstic, IT-98-33-T, Judgement, 2 August 2001, paras. 708-709, Judicial Supplement No. 27. The Trial Chamber in Krstic found that “the direct participation of a high level superior in a crime is an aggravating circumstance, although to what degree depends on the actual level of authority and the form of direct participation”.
13. Para. 58.
14. Professor Elie Wiesel is the recipient of the 1986 Nobel Peace Prize and a survivor of a Second World War death camp. He offered himself as a joint witness for the parties as “somebody uniquely concerned with the fate of the victims” (para. 50).
15. Elie Wiesel, T. 458-459.
16. Para. 71, referring to Plavsic Written Statement.
17. Para. 73. The conclusion of Plavsic Written Statement is as follows: “To achieve any reconciliation or lasting peace in BH, serious violations of humanitarian law during the war must be acknowledged by those who bear responsibility –regardless of their ethnic group. This acknowledgement is an essential first step”.
18. Para. 80.
19. Para. 85.
20. Madeleine Albright, Permanent Representative of the United States of America to the United Nations 1993-1996 and Secretary of State 1997-2000; Robert Frowick, Head of Mission of the Organization for the Security and Co-operation in Europe (“OSCE”); Carl Bildt, Prime Minister of Sweden 1991-1994, Co-Chairman of the Dayton Peace Agreement and subsequently the first High Representative in BH; Mr. Milorad Dodik, the leader of a multi-ethnic political party called the Alliance of Independent Social Democrats, and Prime Minister of Republika Srpska between 1998-2001.
21. Para. 94.
22. 8.2 years is what the Defence considers as the life expectancy of the Accused, inter alia based on the 2001 edition of the Demographic Yearbook published by the Council of Europe and the World Health Organization’s Report of 2001.
23. Para. 103.
24. Krnojelac, IT-97-25, Judgement, 15 March 2002, para. 533, Judicial Supplement No. 31bis.
25. Papon v. France, European Court of Human Rights, Application No. 64666/01, 7 June 2001.
26. It relied on Biljana Plavsic’s medical records, filed under seal and confidentiality, 14 December 2002.
27. Para. 105.
28. R. v. Holyoak (1995) 82 A Crim R 502 at 507-508. See also e.g. R. v. Jeffrey William Spencer Rose (2002) NSWSC 26, 22 February 2002, paras 23-27.
29. Para. 105.
30. R. v. S. (1998) 1 Cr.App.R.(S.) 261, at 264e.
31. Para. 106.
32. Para. 130.
33. Para. 131.
34. Ibid.
35. Para. 132.