071031IT

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1 Wednesday, 31 October 2007

2 [Appeals Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 3.30 p.m.

6 JUDGE LIU: Good afternoon, ladies and gentlemen.

7 Madam Registrar, may I ask you to call the case, please.

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

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

10 JUDGE LIU: Thank you very much.

11 May I ask Mr. Zelenovic if he can hear me and follow the

12 proceedings through the translation.

13 THE APPELLANT: [Microphone not activated]

14 JUDGE LIU: Thank you. You may sit down, please.

15 We now call for appearances. For the Prosecution, please.

16 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing

17 on behalf of the Prosecution, together with Julia Thibord and our case

18 manager, Mr. Sebastiaan van Hooydonk.

19 JUDGE LIU: Thank you, Ms. Brady.

20 As for the Defence for Mr. Zelenovic, please.

21 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours. I

22 am Zoran Jovanovic, attorney-at-law, and I appear for Mr. Zelenovic.

23 Thank you.

24 JUDGE LIU: Thank you very much.

25 As the registrar announced, the case on our agenda today is

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1 Prosecutor versus Dragan Zelenovic in accordance with the Scheduling

2 Orders issued on the 17th and the 23rd October 2007. The Appeals Chamber

3 will deliver its judgement today.

4 Following the practice of the International Tribunal, I will not

5 read out the text of the judgement except for the disposition. Instead, I

6 will summarize the issues on appeal and the findings of the Appeals

7 Chamber. This summary is not part of the written judgement, which is the

8 only authoritative account on the Appeals Chamber's rulings and the

9 reasons. Copies of the written judgement will be made available to the

10 parties at the conclusion of this hearing.

11 This case concerns the events that took place in the Foca

12 municipality and its surrounding villages from April to October 1992. At

13 the time of the events, Mr. Zelenovic was a member of the Dragan Nikolic

14 unit, a military unit in Foca, which in the beginning of the war was part

15 of the Bosnian Serb Territorial Defence, and from the summer of 1992

16 onwards, part of the Bosnian Serb army. Mr. Zelenovic was a soldier and,

17 de facto, a military policeman.

18 The Trial Chamber held that crimes which Mr. Zelenovic has pleaded

19 guilty to were part of a pattern of sexual assaults that took place over a

20 period of several months, and in four different locations, and involved

21 multiple victims. Mr. Zelenovic took direct part in the sexual abuse of

22 victims in a number of the detention facilities, including the multiple

23 rape of victims FWS-75 and FWS-87. Mr. Zelenovic has been found guilty of

24 personally committing nine rapes, eight of which were qualified as both

25 torture and rape. He has been found guilty of two instances of rape

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1 through co-perpetratorship, one of which was qualified as both torture and

2 rape, and one instance of torture and rape through aiding and abetting.

3 Four of the instances of the sexual abuse were gang rapes, committed

4 together with three or more other perpetrators. In one of those

5 instances, he participated as a aider and abettor in the rape of FWS-75 by

6 at least ten soldiers which was so violent that victim lost consciousness.

7 He participated as a co-perpetrator in the incident during which the

8 victim was threatened with a gun to her head while being sexually abused.

9 The Trial Chamber found that the scale of the crimes committed was large

10 and that Mr. Zelenovic's participation in the crimes was substantial. On

11 the 17th January 2007 he pleaded guilty to the crimes he was charged for.

12 On the same day the Trial Chamber found Zelenovic guilty on all

13 charges contained in the plea agreement, namely, seven counts of crimes

14 against humanity, three of which charged torture as provided for by

15 Article 5(f) of the Statute of the International Tribunal, and four of

16 which charged rape as provided for by Article 5(g) of the Statute. The

17 Prosecution recommended a term of imprisonment within the range of 10 to

18 15 years, while the Defence recommended a term within the range of seven

19 to ten years. The Trial Chamber sentenced Dragan Zelenovic to a single

20 sentence of imprisonment of 15 years on the 4th April 2007.

21 Dragan Zelenovic appealed the trial judgement on the 27th April

22 2007 and filed his appeal brief on the 25th May 2007. In his appeal brief

23 he brings forward two grounds of appeal and requests the Appeals Chamber

24 to lower his sentence. The Prosecution requests the Appeals Chamber to

25 dismiss both grounds of appeal. The parties made oral submissions before

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1 the Appeals Chamber in the appeals hearing held on the 15th October 2007.

2 I will now address in turn the two grounds of appeal brought

3 forward by Dragan Zelenovic. At the end of the hearing, I will read out

4 the disposition of the judgement.

5 In his first ground of appeal, Dragan Zelenovic argues that the

6 Trial Chamber erred by not adequately assessing the mitigating

7 circumstances in the sentencing judgement; namely, first, his admission of

8 guilt, thus allowing psychological benefit for victims who will not be

9 required to give evidence, and second, his cooperation with the Office of

10 the Prosecutor in general.

11 In his first sub-ground of appeal, the appellant submits that his

12 guilty plea, being the first one regarding the massive rapes that occurred

13 in Foca, is of extraordinary importance and should have been given more

14 weight by the Trial Chamber. The appellant also submits that the

15 Trial Chamber failed to properly assess the expert report on the

16 psychological benefit for the victims from their non-appearance before the

17 Court and therefore erred in determining the penalty.

18 The Appeals Chamber considers that the Trial Chamber reasonably

19 assessed the importance of the guilty plea, especially when finding that

20 it constituted one of the main mitigating circumstances. Moreover, the

21 Appeals Chamber finds that the reasoning of the Trial Chamber was

22 consistent with the expert report's conclusions, therefore showing that

23 the said report was duly considered by the Trial Chamber. Consequently,

24 the appellant fails to show that the Trial Chamber erred by giving

25 insufficient weight to his guilty plea in mitigation of his sentence.

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1 This sub-ground of appeal is therefore dismissed.

2 In his second sub-ground of appeal, Dragan Zelenovic argues that

3 the Trial Chamber erred in its assessment of his cooperation with the

4 Prosecution. The appellant submits that his actual cooperation with the

5 Prosecution went beyond the scope of what he was obliged to in the plea

6 agreement and that the Trial Chamber erred when it considered his

7 cooperation as "initial" rather than "substantial." Therefore, the

8 appellant argues that the Trial Chamber did not give sufficient weight to

9 this mitigating circumstance.

10 The Appeals Chamber finds that the scope of the plea agreement was

11 not restricted in the manner the appellant suggests. Thus, the appellant

12 did not show that his cooperation went beyond the scope of his

13 obligations. Moreover, the Appeals Chamber notes that both the

14 appellant's actual cooperation, as well as his commitment to cooperate,

15 have been considered by the Trial Chamber as one of the main mitigating

16 circumstances in this case. Consequently, the Appeals Chamber finds no

17 error in the Trial Chamber's assessment of the appellant's cooperation

18 with the Prosecution. As a result, Dragan Zelenovic's first ground of

19 appeal is dismissed.

20 In his second ground of appeal, Dragan Zelenovic argues that the

21 Trial Chamber should have taken into account the appeal judgement in the

22 case of the Prosecutor versus Radovan Stankovic before the State Court of

23 Bosnia and Herzegovina. The Appeals Chamber notes that Stankovic appeal

24 judgement was only made public on the 17th April 2007, while the

25 sentencing judgement in the present case was issued on the 4th April 2007.

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1 The appellant therefore failed to substantiate his allegation that the

2 Trial Chamber should have learned about the Stankovic appeal judgement

3 prior to rendering the sentencing judgement. As a result,

4 Dragan Zelenovic's second ground of appeal is rejected.

5 I will now read out the disposition of the appeal judgement.

6 Mr. Zelenovic, would you please rise.

7 [The appellant stands up]

8 JUDGE LIU: For the foregoing reasons, the Appeals Chamber

9 unanimously, pursuant to Article 25 of the Statute and Rules 117 and 118

10 of the Rules; noting the respective written submissions of the parties and

11 the oral arguments they presented at the appeal hearing of 15th October

12 2007; sitting in open session; dismisses the appellant's grounds of

13 appeal; affirms the sentence of 15 years' imprisonment as imposed by the

14 Trial Chamber, subject to credit being given under Rule 101(C) of the

15 Rules for the time Dragan Zelenovic has already spent in detention since

16 22nd August 2005; and orders in accordance with Rule 103(C) and Rule 107

17 of the Rules that the appellant is to remain in custody of the

18 International Tribunal pending the finalisation of arrangements for his

19 transfer to the state in which his sentence will be served.

20 Mr. Zelenovic, you may sit down now.

21 [The appellant sits down]

22 JUDGE LIU: Ms. Registrar, would you please distribute copies of

23 the appeal judgement to the parties, please.

24 Thank you very much. This concludes the appellate proceedings in

25 this case. The Appeals Chamber will now rise.

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1 --- Whereupon the Appeals Judgement

2 adjourned at 3.47 p.m.