Tribunal Criminal Tribunal for the Former Yugoslavia

Page 96

1 Thursday, 27 November 2003

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE ORIE: Good afternoon to everyone in and around this

7 courtroom. Madam Registrar, would you please call the case.

8 THE REGISTRAR: Case number IT-95-10/1-S, the Prosecutor versus

9 Ranko Cesic.

10 JUDGE ORIE: Thank you very much, Madam Registrar.

11 Mr. Cesic, can you hear me in a language you understand?

12 THE ACCUSED: [Interpretation] Yes, Your Honours, I can hear you

13 very well.

14 JUDGE ORIE: Thank you. May I have the appearances. Prosecution

15 first.

16 MR. HARMON: Good afternoon, Mr. President, Judge El Mahdi, Judge

17 Liu, Mr. Bakrac. My name is Mark Harmon. I'm a senior prosecutor for the

18 Office of the Prosecutor. To my right is Mr. Vladimir Tochilovsky; to my

19 left is Mr. Tom Hannis who will elocute for the Prosecutor in this

20 afternoon's proceedings; and to his left is Susan Grogan, who is the case

21 manager.

22 JUDGE ORIE: Thank you, Mr. Harmon. And the appearances for the

23 Defence.

24 MR. BAKRAC: [Interpretation] Your Honours and my learned

25 colleagues from the Prosecution, my name is Mihajlo Bakrac, and I

Page 97

1 represent the accused, Mr. Cesic.

2 JUDGE ORIE: Thank you very much, Mr. Bakrac.

3 We're here in a sentencing hearing, as a consequence of a guilty

4 plea that has been entered by you, Mr. Cesic, on the 8th of October of

5 this year in which you have pleaded guilty to 12 counts, and if I may just

6 summarise it very, very briefly, that was on five cases of murder,

7 sometimes multiple murder, and one case of sexual abuse. That's the basis

8 on which we work.

9 I was informed that there is an issue as far as the facts are

10 concerned, and if any of the parties would like to address the Chamber in

11 that respect, please do so.

12 Mr. Tochilovsky. I'm using the wrong name.

13 MR. HANNIS: Your Honour, I'm Tom Hannis from the Office of the

14 Prosecutor. I would like to address that, thank you. Actually, there is

15 one of about three housekeeping matters I would like to address before we

16 go into the substance of this matter.

17 JUDGE ORIE: Is the Defence aware of all the housekeeping matters?

18 Are they informed about what to expect?

19 MR. HANNIS: One they're not but I believe it is no surprise and

20 no significance.

21 JUDGE ORIE: If you would please indicate which one so that we --

22 MR. HANNIS: Thank you, Your Honour. The first matter I want to

23 address regards the name of the victim in counts 5 and 6. The indictment

24 names the victim as Mirsad Glavovic. Since the change of plea and in the

25 course of contacting victims about victim impact, we received information

Page 98

1 from the Bosnian authorities that this victim's true name is Mirsad

2 Mujagic, M-U-J-A-G-I-C with a half banana. We've informed Mr. Bakrac of

3 that. I believe he's discussed it with his client, and we are all

4 satisfied that, as far as the individual who was killed in that incident,

5 we are talking about the same person.

6 We got the name Glavovic from one of the witness statements that

7 there were, I believe, three witnesses who talked about that particular

8 incident in which Mirsad, who was a Muslim policeman in Brcko, was singled

9 out by Mr. Cesic, was forced to go around and shake hands and say farewell

10 to all the other detainees before he was taken outside, beaten and shot.

11 The other two witnesses who speak of this incident only knew the

12 victim by his first name Mirsad or a nickname Mirso, but all knew him as a

13 policeman. So based on all the information we have and from discussion

14 with defence counsel, who has consulted with his client, we believe we are

15 talking about the same person.

16 We would propose to amend the indictment to show this additional

17 name or true name of Mujagic.

18 JUDGE ORIE: Yes. That's your procedural suggestion for solving

19 that problem.

20 MR. HANNIS: Yes, Your Honour.

21 JUDGE ORIE: Perhaps you could briefly mention the other issues so

22 that we know what in what order to deal with them.

23 MR. HANNIS: Thank you, Your Honour. The other matter is one that

24 Defence counsel had not been advised of, but on page 2, paragraph 8 of our

25 initial sentencing brief filed on 12 November, the procedural background

Page 99

1 indicates that the guilty plea was entered on 8 September 2002. That is

2 an error. That should read 8 October 2003. And we would move to make

3 that correction at this time.

4 JUDGE ORIE: I take it that, Mr. Bakrac, there is no objection to

5 this amendment of the sentencing brief.

6 MR. BAKRAC: [Interpretation] Your Honours, I don't have any

7 objections to make, but if I could take this opportunity to comment on the

8 first issue. I can confirm everything's been said.

9 JUDGE ORIE: -- at issue, and then we know this -- but this was

10 such a futile one, of course -- minor one that I thought it wise to deal

11 with it right away. So it's on the record that your brief is corrected,

12 it's now 8th of October, 2003, the date on which the accused entered his

13 guilty plea.

14 Please proceed.

15 MR. HANNIS: Thank you, Your Honour. I want to return to the name

16 of the victim. I should also indicate that if we are going to correct his

17 name or add his true name, Mujagic, that change should be made in the plea

18 agreement in the factual basis as well as in the indictment.

19 JUDGE ORIE: That was your third point or --

20 MR. HANNIS: No.

21 JUDGE ORIE: We could have your third point.

22 MR. HANNIS: The third point was merely to confirm, Mr. President,

23 with you, and Your Honours, if you have received all four filings we have

24 made regarding sentencing. The first was our sentencing brief filed on 12

25 November. The second was the unredacted statement of detainee, the victim

Page 100

1 in count 7 and 8. The third was our supplemental information relating to

2 sentencing filed on the 21st, and the fourth was filed just yesterday,

3 that's further supplemental information.

4 JUDGE ORIE: Yes. That's of the 26th. It was filed where you

5 analyse some of the material you received.

6 MR. HANNIS: Yes, Your Honour. That was 51 -- that included 51

7 pages of B/C/S documents for which we do not yet have an English

8 translation but relate to --

9 JUDGE ORIE: You indicated that you would immediately present it

10 to the Defence as well. I take it Mr. Bakrac that you at least have

11 received it. I'm not asking any further comment at the moment but you are

12 in possession of copies of the documents.

13 MR. BAKRAC: [Interpretation] Your Honour, I have received a copy

14 of those documents. I was informed about this, and I found it in my

15 locker, and it's my intention and the intention of my client to assist the

16 Trial Chamber and the Prosecution in establishing the truth, and to this

17 end I have attempted to review those documents, and in my closing

18 argument, I will comment on the documents that I received yesterday.

19 Naturally I have received all the previous documents my learned colleague

20 has mentioned.

21 JUDGE ORIE: Yes. That goes into the substance of the matter, so

22 perhaps we first now return to the issue of the family name of the victim

23 of counts 5 and 6.

24 Mr. Bakrac, do you have any suggestion as to the procedural way of

25 dealing with that issue? Do you join Mr. Hannis in amending the

Page 101

1 indictment, that this would be the proper way to deal with it.

2 MR. BAKRAC: [Interpretation] Your Honour, thank you for asking me

3 about this matter. There is really nothing in particular I would like to

4 request, but since you have allowed me to address you and to express my

5 opinion, I think that -- I think that in the transcript of this case and

6 later on we could indicate that in that part of the indictment, the

7 factual basis is being amended so as to avoid a procedure which would

8 involve amending the indictment and the factual basis.

9 This is my suggestion, but I think that it might be simpler if the

10 transcript, which is regarded as valid, were used as a basis for the

11 decision of the Trial Chamber, and I think that this would be one way of

12 correcting this error.

13 JUDGE ORIE: Yes. You suggest a more -- I would say a more

14 simpler, more practical approach.

15 Yes, Mr. Hannis. Since we had been informed about this issue

16 perhaps to be raised today, the Chamber has already given it some thought

17 and also noticed that if you change the indictment, then of course a lot

18 of other things have to be changed as well, that means plea agreement,

19 plea, conviction pronounced. So that would be -- so before we would

20 invite you to follow that course and apart from the question whether from

21 a procedural point of view amending an indictment after a conviction has

22 been pronounced on it might be an acrobatic exercise from a procedural

23 point of view.

24 So before I invite you, I would rather try to seek whether the

25 parties could follow the Chamber in the following approach: One of the

Page 102

1 issues at stake, I would say, is whether the -- whether there's a

2 possibility that the plea has been equivocal. Perhaps we first try to

3 investigate that a bit more in detail. And I would like to ask Defence

4 already to prepare that if later on a question would be put to the accused

5 whether he would have entered any -- whether he would have concluded any

6 other plea agreement or whether he would have entered any other plea as he

7 did if he would have known at that time that the name was different,

8 that's -- the Defence is prepared to answer that question.

9 I -- let's first concentrate on what Mr. Cesic exactly pleaded

10 guilty to on the 8th of October of this year. The transcript literally

11 reads, after I had invited Madam Registrar to read count 5 and after count

12 5 was read as follows: "Count 5, a violation of the laws or customs of

13 wars recognised by Article 3 of the Tribunal Statute and Article 3(1)(a)

14 murder, of the Geneva Conventions. I then asked Mr. Cesic, how do you

15 plead, Mr. Cesic? And the accused, according to the interpreted answer

16 was, "Guilty, Your Honour." I then said the Trial Record records the plea

17 of guilty on count 5 and I invited Madam Registrar to read count 6 which

18 read as follows: Count 6, a violations of the laws or customs of war

19 recognised by Article 5(a), murder, of the Tribunal Statute. I then

20 invited Mr. Cesic to enter a plea. I asked him, "Do you plead guilty or

21 not guilty" and Mr. Cesic according to the transcript in English said,

22 "Guilty, Your Honour."

23 So that's exactly the words he used in court when he pleaded

24 guilty.

25 As far as the conviction is concerned, the transcript says, and

Page 103

1 that's on page 92, line 17, my words were the following: "Mr. Cesic, the

2 Chamber accepts your guilty plea on all 12 counts of the indictment

3 brought against you as amended in November 2002, and this Chamber finds

4 you guilty on each of the 12 counts as they have been read to you prior to

5 entering your guilty plea."

6 The Chamber takes it that the plea agreement concluded between the

7 Prosecution and the Defence and the accused was the very basis which made

8 the accused to enter a guilty plea. Attached to that agreement was the

9 factual basis on which the agreement was concluded. And also that factual

10 basis has been read out in Court, and the relevant part reads as follows:

11 "In respect of counts 5 and 6, on or about the 11th of May, 1992 --"

12 that's how I read it to the accused on the 8th of October -- "you called

13 the Muslim policeman Mirsad Glavovic from the main hangar building at Luka

14 camp where Glavovic was being detained. You ordered Mr. Glavovic to say

15 good-bye and shake hands with the other detainees, and then, Mr. Cesic,

16 you took Mirsad Glavovic outside the hangar building where he and others

17 -- where you and others beat and killed the victim. You also agree that

18 you intended to kill Mirsad Glavovic at the time of the beating I just

19 described."

20 That's on page 64 and 65 of the transcript of the 8th of October.

21 As it now turns out, the parties have discovered that the -- that

22 one element of the factual basis relates to counts 5 and 6 is in need of

23 correction. The name of the victim was not Mirsad Glavovic but Mirsad

24 Mujagic.

25 The Trial Chamber does understand that the accused - but I'll

Page 104

1 verify that - knew the first name of the victim, who was a police officer,

2 to be Mirsad, but was unaware of his family name, and I would like to

3 verify this in order to better understand whether this was a mistake.

4 So therefore, first, Mr. Cesic, I would like to ask you, when you

5 signed the plea agreement, were you aware of both the first and the family

6 name of the victim of this beating up and finally killing this person, or

7 were you aware of both his first name and his family name?

8 THE ACCUSED: [Interpretation] Your Honour, I only knew the

9 victim's first name, but that was the person concerned.

10 JUDGE ORIE: Yes. Would you not have concluded the plea agreement

11 if you would have known that the family name of this victim was different

12 from the name we find, the family name we find in the attachment to the

13 plea agreement? If you want to consult with counsel, of course you could

14 do so. So would you have not concluded the plea agreement if you would

15 have known that the family name was Mujagic rather than Glavovic?

16 THE ACCUSED: [Interpretation] Your Honour, as I knew who the

17 person concerned was, all they did was omit this surname, but I would have

18 signed it because I knew who this person was. So this person was called

19 Mirso, his nickname was Mirso.

20 JUDGE ORIE: So you would have concluded, under the same

21 conditions, the plea agreement?

22 THE ACCUSED: [Interpretation] Yes.

23 JUDGE ORIE: Yes. Would you, if you would have known the

24 difference in family name, would you have entered any other plea than you

25 did on the 8th of October?

Page 105

1 THE ACCUSED: [Interpretation] As I didn't know the person's family

2 name but I did know who the person concerned was, that's why I stated what

3 I did. But if that had been different, I think that we would have solved

4 this issue in discussions with the Prosecution and my Defence.

5 JUDGE ORIE: Yes. But it would not have caused you to enter a

6 plea of not guilty on counts 5 and 6? If you want to consult with

7 counsel, please do so.

8 [Defence counsel and accused confer]

9 THE ACCUSED: [Interpretation] Your Honour, I would have entered

10 the same plea of guilty on that count.

11 JUDGE ORIE: Thank you very much, Mr. Cesic. I do take it that

12 there are no other corrections necessary to the factual basis apart from

13 the one we discussed at this very moment?

14 MR. HANNIS: No, Your Honour.

15 JUDGE ORIE: Yes. Mr. Bakrac, you don't protest, so I take it

16 that you agree.

17 MR. BAKRAC: [Interpretation] No, Your Honour.

18 JUDGE ORIE: So the correction the factual basis is in need of

19 makes, as we just heard from the Defence and from the accused - I should

20 say the convicted person - makes the plea not any less informed or

21 unequivocal than it was before. The family name of the victim alone has

22 no bearing, no specific bearing on the actus reus or the mens rea of this

23 crime other, of course, than exclusively the detail of the civil identity

24 of the victim, which is not a material element in the Prosecutor's case.

25 Whether the policeman detained and killed was Mirsad A, B or Mirsad C is

Page 106

1 not a material element.

2 Therefore, the guilty plea which does not actually name the victim

3 stands unaffected, and the conviction which does not also directly mention

4 the name of the victim is also unaffected.

5 What needs a slight correction, therefore, is the factual basis on

6 which the plea agreement and the guilty plea rest. Nevertheless, it is

7 important for the family of the victim and also for the relevance of

8 statements presented by the Prosecution to establish that the underlying

9 factual basis on which the plea was based was not in every detail correct,

10 and the Chamber now understands that the factual basis on which the

11 parties agreed is limited to the first name of the witness being Mirsad

12 and that the family name is struck from the factual basis on which the

13 parties concluded their agreement on which the plea was entered and on

14 which the finding, which of course had this effect, although not in words,

15 on the decision of the Trial Chamber. The Chamber considers the matter

16 sufficiently solved in this way.

17 Having dealt with this matter, I think I could give an opportunity

18 for the Prosecution to submit whatever it wants to submit at this moment

19 in regard to sentencing to the Chamber. That, as far as I understand,

20 it's then the intention of Mr. Cesic to make an unsworn statement, and

21 then finally, you, Mr. Bakrac, will make your submissions to the Chamber.

22 And whenever there would be any questions remaining, the Chamber will put

23 them at the end of your submissions.

24 Please proceed, Mr. Hannis.

25 MR. HANNIS: Thank you, Your Honour. As you indicated before,

Page 107

1 Mr. Cesic has been convicted now of five separate counts of murder as

2 violations of the laws and customs of war, and five counts of murder as

3 crimes against humanity, both referring to five separate incidents; and

4 also to a sexual assault charge, both as a crime against humanity and a

5 violation of the law and customs of war. These five separate incidents

6 involve the murder of ten different human beings, and the sexual assault

7 involves an offence against two individuals.

8 The task before Your Honours at this point is not an easy one.

9 Any time we're faced with deciding what is an appropriate punishment when

10 a single human life has been lost is a difficult one. You can see in the

11 statements from the relatives of some of the murder victims that their

12 view is that these crimes that occurred should bring the accused - in one

13 case I think the victim recommended 30 years, and in all the others, they

14 felt he deserved a life sentence.

15 Our Statute, in Article 24, sets out the factors for you to

16 consider in arriving at an appropriate sentence. Gravity of the offence

17 has been described as the primary consideration. In addition, you need to

18 consider the individual circumstances of the accused.

19 In addition to Article 24, our Rules of Procedure and Evidence, at

20 Rule 101, provide that the Court should also take into account aggravating

21 circumstances, mitigating circumstances including cooperation, and the

22 general sentencing practices in the former Yugoslavia.

23 Your Honour, with regard to the gravity of the offence, as we

24 indicated in our brief, these crimes were shocking and senseless in their

25 cruelty, and we believe they were of the utmost gravity. They forever

Page 108

1 ended the lives of the ten victims and they forever changed for the worse

2 the lives of those two brothers who were the victims of the sexual assault

3 and the lives of the relatives -- the surviving relatives of the murder

4 victims. The impact on the living victims, both the direct and indirect

5 victims, is detailed in attachments A through D to our brief that was

6 filed on 12 November.

7 With regard to aggravating circumstances, Your Honour, I just want

8 to refer to a few that we believe exist in this case and are mentioned in

9 our brief. With regard to the sexual assault charges in counts 7 and 8,

10 we believe the Celebici case, where it talks about public rape as being an

11 act of unusual depravity, would apply to the situation in which these two

12 brothers were forced to commit an act of oral sodomy upon one another in

13 the presence of other guards in addition to Mr. Cesic.

14 As for all the counts, we believe that the Aleksovski case, at

15 paragraph 227, stands for the proposition that crimes of this nature

16 inflicted upon vulnerable victims are an aggravating circumstance that the

17 Court can consider in imposing sentence. All the victims in these counts

18 were vulnerable in the sense that they were detained and at the mercy of

19 Mr. Cesic and the other guards at the Luka camp in Brcko.

20 The Furundzija case, in paragraph 283, indicates that when the

21 victims are civilians that also may be considered an aggravating factor.

22 Once more with regard to the sexual assault counts, we would

23 indicate that the humiliating nature of that offence was of unusual

24 depravity, as discussed in Celebici, and is further grounds to treat that

25 as an aggravating factor.

Page 109

1 Two others that I would like to bring to your attention, Your

2 Honour, relate to the -- the multiple murders in this case. We have five

3 separate counts that involve the killing of ten individuals, occurred on

4 five different occasions over at least a ten-day or two-week period, if

5 not longer. This was not an event in which ten individuals were killed on

6 one occasion as an act of revenge because a comrade has been killed in

7 battle or because a relative has been killed in the war, but these were

8 five separate occasions. Mr. Cesic had the opportunity between times to

9 reflect upon what he had done when he had killed another individual.

10 I have no case that supports this exact proposition, Your Honour,

11 but we would suggest it to you as something that you might possibly

12 consider in the circumstances of this case. Each time, after the first

13 murder of the five victims and before he killed the fisherman who was

14 mentioned in counts 3 and 4, he had time to reflect about what he had

15 done. Likewise between that murder and the subsequent murders.

16 Finally, Your Honour, we would argue that one additional

17 aggravating factor has to do with abuse of authority. Mr. Cesic was a

18 member of the Territorial Defence in early May 1992, and on about the 15th

19 of May, 1992, according to his military book, he became a member of the

20 reserve policemen, although the circumstances indicate that he seemed to

21 be acting as a policeman earlier than that. He was at Luka camp, and as

22 indicated in the Defence sentencing memo in paragraphs 51 to 53, he

23 apparently had some authority because he was able to assist some

24 individuals who had been detained at Luka camp in that he was able to get

25 them released and able to help them get their identity cards returned to

Page 110

1 them. We believe this shows that he did have some authority, although he

2 was about no means a high-ranking official or a high-level policeman or

3 soldier.

4 With regard to mitigating circumstances, we agree, Your Honour,

5 that the following mitigating circumstances do exist in this case: First

6 of all, Mr. Cesic did plead guilty, and he pled guilty early in this case,

7 before the pre-trial briefs were required to be filed, and the case law

8 indicates that that is a mitigating circumstance that the Court should

9 take into consideration.

10 In addition, his guilty plea assists in the mission of this

11 Tribunal to establish truth and try to bring about reconciliation in the

12 former Yugoslavia.

13 Also, Your Honours, as we indicated in our plea agreement,

14 Mr. Cesic has cooperated, and we believe that is an additional grounds

15 for mitigation.

16 Finally, Your Honour, I want to address some of the points that

17 were raised in the defendant's sentencing brief. These are points that we

18 disagree with learned counsel, Mr. Bakrac.

19 In paragraphs 33, 40, 41, and in paragraph 49, the Defence speaks

20 about the charged offences of which he is convicted as being isolated

21 incidents and talks about his good character before the incidents and

22 after the incidents. We have no dispute with the evidence that he's

23 submitted in his brief that Mr. Cesic apparently did help certain

24 non-Serbs in Brcko, those who lived in his building or in his

25 neighbourhood, those that by witness accounts he helped get released from

Page 111

1 Luka camp. But we believe on balance of the probabilities that that

2 doesn't outweigh other evidence of character that was contrary to his

3 claim of no bad acts before or after the two-week period in May 1992. And

4 I will address that further in a moment.

5 With regard to the abuse of trust, Defence counsel argues that

6 this should not apply. As I mentioned earlier, we believe that his

7 apparent or actual authority to assist prisoners at Luka camp indicates

8 that he was in a position of some trust and obviously we believe his

9 killings and forced sexual assault was an abuse of that trust.

10 In paragraph 39, the defendant makes a reference to the fact that

11 most of these individuals who were killed were instantly killed. Your

12 Honour, we can't imagine imagination any circumstances in which that

13 should be treated as mitigation. In counts 1 and 2, the first incident,

14 five men were killed at one time and the mechanics of operating a gun and

15 shooting people would indicate that they weren't all killed instantly at

16 the same time. Some would have had time to anticipate their own death

17 once the shooting began.

18 With regard to Mirsad the policeman in counts 5 and 6, the factual

19 basis indicates that he was beaten and shot. He was also required to go

20 around and shake the hands ever all the detainees in the hangar before he

21 was taken out and killed. He had time to anticipate his death before it

22 occurred, and it was not an instant killing. And likewise the victim in

23 counts 9 and 10 was beaten by Mr. Cesic and that was not an instant

24 killing.

25 JUDGE ORIE: May I ask, you Mr. Hannis, to look at the transcript

Page 112

1 on page 16. You see there is a part missing between 3, 40, 01 and 21.

2 Could you please repeat what you said there in order to have the --

3 MR. HANNIS: I believe that's where I was indicating that in

4 paragraphs 39 of the Defence pre-trial brief, they make reference to the

5 fact that most of the victims of the murders were instantly killed and

6 it's our position that that is not something that should be considered as

7 a mitigating factor.

8 Thank you for pointing that out, Your Honour.

9 The last thing I want to return to the issue of good character

10 evidence. In our submissions, our last submission and our next to the

11 last submission, we provide the Court with some evidence indicating, first

12 of all, there was some reputation evidence about Mr. Cesic's statements

13 from four different witnesses to the effect that they had known Mr. Cesic

14 before the war and believed that he had been engaged in criminal activity

15 or in trouble with the police. That was not offered as an aggravating

16 circumstance but only to deal with the Defence position that he was of

17 good character before the war and after the offences charged.

18 And our last submission filed yesterday which contains I believe

19 about 51 pages of documents from the Brcko basic court, the Brcko military

20 court, the supreme military court and the Brcko police station relate to

21 two separate incidents. One was in December of 1991, before the war, in

22 which Mr. Cesic was charged with another individual for a count of assault

23 resulting in serious bodily injury. That case by -- the document

24 apparently has not been resolved. The investigation proceeded to a point

25 in time when the Prosecutor recommended it be suspended because the

Page 113

1 defendants, Mr. Cesic and another Muslim individual could not be located

2 and it was recommended that prosecution be suspended until that obstacle

3 could be removed.

4 With regard to the second matter, Mr. Cesic, by the documents we

5 received was convicted of what I understand the translation to be

6 negligent homicide. The murder of a friend of his in February of 1993. He

7 was tried in the military court. He appealed his conviction. That was

8 upheld on appeal and he was sentenced to three years in prison less credit

9 for time served in which it appears he had done ten months in pre-trial

10 detention.

11 He didn't immediately appear for his sentence but was arrested, I

12 believe, in August of 1996 according to the documents we received. And

13 again, Your Honour, not offered as an aggravating circumstance because we

14 don't believe that's proper under the law. But to rebut the argument that

15 these were isolated incidents, and to rebut the argument of good

16 character.

17 One additional factor in -- mentioned in the Defence pre-trial

18 brief as a mitigating factor is remorse. At this point in time we can't

19 take any position, Your Honour, because we haven't heard his expression of

20 remorse. He has pled guilty, but we contend that that is not the same as

21 an expression of remorse. There needs to be something apart and separate,

22 above and beyond the mere acceptance of responsibility.

23 Lastly in the defendant's pre-trial brief, Your Honour, my learned

24 colleague lists several cases, pointing out sentences that have been

25 imposed in other cases in this Tribunal. I'm not going to go through them

Page 114

1 one by one, but we would urge Your Honours that upon a close examination

2 of the facts in each of those cases, you will find that they can all be

3 distinguished or differentiated from the facts of this case and the

4 individual circumstances of this accused.

5 All things considered, Your Honour, we believe that the gravity of

6 this -- of these offences and the aggravating circumstances we have

7 pointed to in our sentencing brief versus the defendant's cooperation and

8 any other mitigating circumstances you feel may have been proved by the

9 Defence, considered together show that an appropriate sentence in this

10 case would be within the range of 13 to 18 years, as we have agreed to in

11 our plea agreement and recommended to the Court.

12 If there are no questions for me at this time, I will sit down and

13 await Defence counsel's argument. Thank you.

14 JUDGE ORIE: Thank you, Mr. Hannis. The Chamber has no questions

15 for you at this very moment.

16 Mr. Bakrac, I do understand that Mr. Cesic would like to make a

17 statement. Is that correct?

18 MR. BAKRAC: [Interpretation] Yes, Your Honour, this is correct.

19 And I ask you to give him leave to do so.

20 JUDGE ORIE: Yes. Mr. Cesic, you have an opportunity to make a

21 statement, if you want.

22 THE ACCUSED: [Interpretation] Thank you, Your Honours. First of

23 all, without any false sentiments, I wish to express my deep remorse for

24 all the evil I have done. Words such as "remorse" are insufficient to

25 express what somebody like me feels.

Page 115

1 Looking back in time after so much time has elapsed since I

2 committed those crimes, there is an enormous difference between my state

3 of mind now and then. Now I would never do the things I did then, the

4 things that took place in a time of euphoria, a time when all human

5 dignity was abolished.

6 Before the trial, I pleaded guilty to the counts of the

7 indictment, and I did my best to help the Office of the Prosecutor and the

8 Tribunal to bring to light a small part of the overall truth, the part

9 that refers to my actions.

10 Your Honours, I will do anything to bring back the past and not to

11 do what I have done. Since this is not possible, all that is left for me

12 is to feel the deepest remorse for what I have done. To this I would like

13 to add that I did not want to bring my friends and relatives here to say

14 nice things about me because I didn't want to increase the pain of the

15 victims and their families, out of respect for the deceased.

16 I hope that my sincere remorse, which I feel deeply, will help to

17 prevent similar things from happening in the future, and I wish to say

18 that any people that experiences war is unfortunate, and people who live

19 through this and families who have suffered pain feel this deeply. I want

20 to say that I hope nobody will ever do the things that I have done and

21 that prison is not the only punishment for me, because it is even harder

22 to go on living with this feeling of guilt.

23 Thank you, Your Honours, for giving me leave to speak.

24 JUDGE ORIE: Thank you, Mr. Cesic.

25 Mr. Bakrac, I'm looking at the clock. How much time do you think

Page 116

1 you would need for your submissions?

2 MR. BAKRAC: [Interpretation] Your Honour, I am not very good at

3 estimating the time I will take, but I think about 45 minutes would be

4 sufficient. I do apologise if I overstep that limit, but I think I won't

5 need more than 45 minutes.

6 JUDGE ORIE: Then we perhaps could finish before our first break.

7 Until the first break, that would be approximately 40 minutes. If it

8 would be possible for you to use some 40 minutes, which is close to what

9 you indicated you would need, and if you would perhaps look at the clock

10 now and then when proceeding so you can keep track of whether you lose or

11 whether you gain speed. Please proceed.

12 MR. BAKRAC: [Interpretation] Thank you, Your Honours. Your

13 Honours, in its sentencing brief which it submitted on the 12th of

14 October, as stated, the Defence mentioned all the aspects that we feel

15 should be taken into consideration when sentencing the accused. The

16 Defence gave a brief introduction stating the background of this case as

17 well as its view of the law to be applied. Therefore, we feel it would be

18 superfluous to repeat orally all that has been stated in the brief.

19 JUDGE ORIE: To be quite clear, the Chamber has read all the

20 written submissions, so you -- there is no need to repeat any of that.

21 Please proceed.

22 MR. BAKRAC: [Interpretation] Yes, Your Honour, that is precisely

23 what I wish to say, so that I will pass over the introduction and the

24 applicable law, and I will refer to the essence of the issue that has

25 brought us all here, and that is determining a just sentence for the

Page 117

1 accused Cesic, taking into consideration all the circumstances that have

2 been established.

3 The Defence can agree with the Prosecution in the following: The

4 fundamental issue to be considered in sentencing in the jurisprudence of

5 this Tribunal is the gravity of the offence. Wishing to analyse the

6 criminal offence as fully as possible and as professionally as possible, I

7 realise that the Defence might bring pain to the victims of sexual abuse

8 and to the families of the deceased, and for this reason I apologise in

9 advance to the families of the victims and to the victims if what I will

10 now say increases their pain or gives them further -- causes them further

11 suffering. However, when considering the gravity of the offence, we

12 cannot avoid -- avoid inflicting pain perhaps on the families of the

13 victims and the victims and hurting their feelings.

14 What we wish to say about the gravity of the offence is that the

15 Defence agrees that murder is one of the most serious crimes. However, in

16 any system of law, there are degrees. There is murder, there is

17 aggravated murder, so that this honourable motivation can aggravate a

18 murder.

19 The criminal offence of murder in itself is a very grave offence.

20 If we look at five incidents, the five incidents of which Cesic has been

21 found guilty, we shall see that in three of those incidents this was a

22 momentary murder that was committed by firing shots from a firearm. In

23 two cases, the murders were a result of beatings. In most of these

24 murders, the murder did not lead to additional suffering on the part of

25 the victims.

Page 118

1 Of course murder in itself implies suffering, both of the victim

2 and their families. This suffering is subsumed in the elements of murder

3 as such. If we know that there are cases of murder where certain persons

4 are tortured additionally, subjected to additional suffering, then murder

5 which leads to instantaneous death is on the lowest rung of the ladder, so

6 to speak, where murder is concerned.

7 In only two cases were there beatings of the murder victims, and

8 the accused participated in these beatings as part of a group. So it is

9 difficult to establish his dominant role.

10 Therefore, in these five counts of the indictment relating to the

11 crime of murder, one must bear in mind the fact that the victims were not

12 subjected to additional torture and additional suffering apart from the

13 suffering that is implied in the nature of murder itself.

14 With respect to another crime with which the accused is charged

15 and which differs from murder is sexual assault. I think that only one

16 sentence from a statement by only one of the persons who were victims of

17 this should be read out. I am convinced that the Prosecution did not

18 overlook this sentence intentionally, but I feel it can reflect the

19 gravity of the crime that should be taken into consideration in

20 sentencing.

21 In the statement of a witness made on the 7th of November, 2003,

22 that is directly before the trial was to begin and when the guilty plea

23 was already imminent, one of the victims of sexual abuse, person A, says

24 he could not believe that a person like Ranko Cesic would be able to do

25 something like this. He says that he and his brother were respectable

Page 119

1 people, that he knew Ranko Cesic from before, and that he believes that

2 persons superior to Ranko Cesic instructed him or ordered him to do what

3 he did.

4 If on the 7th of November, 2003, when Ranko Cesic had already been

5 brought before the Tribunal, one of the direct victims of sexual

6 mistreatment says that he cannot believe that a person like Ranko could do

7 something like this and that he feels that he must have received orders

8 from a superior. This is relevant to the gravity of the offence which the

9 Defence agrees is a very serious offence, and if the motive is to

10 humiliate the victim, then certainly it is a very serious time.

11 With regard to the gravity of crimes, although the Defence is

12 aware of the facts, the jurisprudence, and in other cases before this

13 Tribunal it's been determined that in comparison to -- comparing the case

14 to other cases has or may have limited value. Nevertheless, the Defence

15 has to draw the attention of the Trial Chamber to the fact that in a

16 certain sense, making comparisons could be useful, especially when trying

17 to determine the gravity of the offences with which Mr. Cesic has been

18 charged.

19 Similarly, the jurisprudence in previous decisions in this

20 Tribunal is consistent and has been determined that the crime of

21 persecution is one of the most serious crimes, and it is a sort of

22 umbrella crime which covers other crimes, and criminal acts, especially

23 murder and sexual abuse, et cetera, which have been committed as

24 persecution, are to be treated as far more serious times.

25 What determines the gravity of the crimes committed by Ranko Cesic

Page 120

1 with regard to the majority of the decisions of this Tribunal is that

2 these crimes don't fall under the heading of persecution. They don't

3 belong to that category. So the jurisprudence of this Tribunal, that is

4 to say making comparisons to other cases, could be of use. This is why

5 the Defence also considers, and we will address the Prosecution's brief

6 and other documents that the Prosecution has submitted, we will comment on

7 these later. We believe that the acts are isolated incidents which took

8 place within a five- or ten-day period, but everything else, and we will

9 analyse this later, has no connection to these crimes with which the

10 accused has been charged and for which he has declared guilty.

11 The matter of the position of the accused when he committed these

12 crimes is also a significant matter when determining the gravity of the

13 crimes. My learned colleague, the Prosecutor, did not dispute the fact

14 that Mr. Cesic, the accused, was first of all a member of the

15 Territorial Defence from the 1st to the 15th of May and then a member of

16 the reserve police force from the 15th of May to the 20th of June, and

17 then a member of the military district. And the Defence has also

18 submitted to the Trial Chamber evidence in addition to its brief.

19 It is clear to this Trial Chamber on the basis of the

20 jurisprudence to date that all those who participated in war on the

21 territory of the former Yugoslavia and the territory of

22 Bosnia-Herzegovina, all these people were members of the Territorial

23 Defence. Likewise, it's not in dispute that Mr. Cesic was a member of the

24 reserve police force, but he didn't have a rank of any kind.

25 After the 22nd of June, Ranko Cesic was an ordinary soldier when

Page 121

1 the army and the military district were established, and you can see that

2 from his military booklet. He was a soldier who didn't have a rank of any

3 kind. And when we make comparisons with certain other cases such as the

4 Todorovic case and other cases that have appeared before the Tribunal, we

5 will see that apart from the fact that Mr. Cesic hasn't been accused for

6 these crimes under the heading of persecution, this diminishes the gravity

7 of the crime. Similarly, he is not a person who was in a position of any

8 particular importance.

9 I respect my colleagues from the Prosecution. I appreciate all

10 the cooperation we have had that has enabled us to reach an agreement on

11 this case, but I have to say that using an official position in a certain

12 way, well there is nothing to back this up, abusing a position in a

13 certain way is not backed up. He didn't have the position of a superior.

14 He had no authority. It is quite clear that there is no evidence to back

15 this up. On the contrary, there is evidence provided by the Defence that

16 proves the contrary.

17 If we bear in mind another fact which is not in dispute, and that

18 is that the Defence, with regard to determining the sentence, must

19 establish beyond reasonable doubt -- must establish its case beyond

20 reasonable doubt, then the Prosecution's position that Cesic did have

21 authority and did abuse his position is not a correct position, and this

22 is not something that can be considered by the Trial Chamber. On the

23 contrary, the Defence has provided evidence, and it's contained in the

24 military booklet of the accused, evidence that shows where Ranko Cesic

25 served and evidence that shows that he didn't hold a rank of any kind. He

Page 122

1 didn't have the position of a superior.

2 If we bear all these factors, all these elements in mind, then

3 this crime cannot be qualified as having this seriousness, and the

4 participation of the accused was very low-level participation. In

5 addition to what we have said, this is one of the rare cases in which the

6 accused has been charged with crimes that don't fall under the heading of

7 persecution. And in comparison to the Todorovic case, for example, we can

8 say that the accused didn't have any command responsibility, he didn't

9 hold the position of a superior, he didn't hold a position that he could

10 have abused and which would entail treating his crime as a more serious

11 crime.

12 JUDGE ORIE: May I interrupt you, Mr. Bakrac. Many of the things

13 you're telling us appear in almost similar wordings in your sentencing

14 brief as well, whereas on other issues you seem not to respond to what

15 really seems to be the issue raised by the Prosecution. For example, you

16 have now explained to us that Mr. Cesic had certainly no formal authority.

17 I think that is also the position of the Prosecution. So therefore, it's

18 no need. I think the parties agree on that.

19 But the issue raised by the Prosecution was that on the basis of

20 the material submitted by the Defence itself, and I think they might have

21 specially referred to paragraph 53 in which we find an excerpt of

22 something that happened in a camp, in the Luka camp, where, for example,

23 it reads that person stating that "when he saw me, he nodded and asked me

24 to go with him. He ordered to one of the soldiers to find my identity

25 card and to give me a pass which -- which I could go around."

Page 123

1 I think that's the issue raised. You do not disagree on the

2 formal position of Mr. Cesic. The Prosecution seems to accept that but

3 points at the fact that in your own material words appear like "ordering

4 other soldiers" and "taking people out of a camp." I think that's the

5 issue, and instead of repeating -- of course you can refer briefly to what

6 you have put in your pre-sentencing brief, but that's really one of the

7 issues, I think, that the Chamber needs assistance to decide on that issue

8 which seems to be -- at least, that's how I understand the Prosecution

9 argument, there seems to be some contradiction, to say on the one hand

10 there was no position whatsoever, he was the lowest of the lowest, he had

11 no authority whatsoever, and at the same time the material says that he

12 ordered something or that he did a few things which at least suggest some

13 authority or some power.

14 I think these are the issues the Chamber really needs your comment

15 on rather than to hear -- although I will not prevent you from briefly

16 indicating what the position of Defence is, but on hearing again what is

17 already set out in quite some detail in the sentencing brief.

18 Please proceed.

19 MR. BAKRAC: [Interpretation] Your Honours, naturally it was my

20 intention to address that issue and that was the matter I was just going

21 to address.

22 In my brief I didn't state that he issued an order. That is

23 contained in one of the witness's statements where it is stated that Ranko

24 Cesic helped -- helped them. That's their impression. And at that time,

25 the possibility of helping someone, getting someone out of a camp does not

Page 124

1 by itself mean anything. You may not have an official position, but this

2 doesn't mean you have a de facto position. It might be a matter of taking

3 advantage of an opportunity. Perhaps someone doesn't know who is in

4 charge. Perhaps it is a matter of using acquaintances from before the

5 war. The possibility of helping someone at a given moment in time by

6 itself does not allow one to assume that the person in question had de

7 facto authority, and this is why I believe that one should bear in mind

8 the fact that the accused did not have any authority in the economic,

9 political, or military sense.

10 What one could assume, and it would be logical to come to this

11 conclusion, is that at a given moment perhaps some people were there who

12 would raise no objections and it might be possible to help someone get out

13 of a camp. The word "ordered" is something that was stated by a witness,

14 a word used by a witness, and I don't think that this means that the

15 accused was in a position of authority.

16 I don't want to repeat myself, I don't want to repeat everything

17 that's been stated in the sentencing brief, but I will just turn to

18 another matter very briefly which is not contained in the sentencing

19 brief. I will just turn to certain considerations of the Prosecution with

20 regard to aggravating circumstances.

21 The Defence, in its sentencing brief, has already stated that in

22 the Defence opinion there are no particular aggravating circumstances,

23 because everything that could be taken into consideration as aggravating

24 circumstances is already incorporated in the gravity of the crime. It

25 already forms part of the gravity of the crime and that is why it is still

Page 125

1 my position that there are no aggravating circumstances with respect to

2 the accused.

3 But I would also like to turn to the matter that the Prosecution

4 addressed in its sentencing brief with regard to aggravating

5 circumstances. One of the items is that we should take the fact that the

6 victims were vulnerable, helpless, and inferior citizens -- citizens in an

7 inferior position as an aggravating circumstance. And the Defence can

8 very briefly respond to this by saying that these facts are incorporated

9 in the gravity of the crime and cannot subsequently be added to the crime

10 and considered to be -- considered as aggravating circumstances.

11 I think that the jurisprudence with regard to this matter is such

12 that a crime against humanity incorporates this. A crime against humanity

13 - and Mr. Cesic has pleaded guilty to this - includes the fact that it

14 affects civilians, vulnerable and helpless civilians. To take this fact

15 into consideration as an aggravating circumstance, in my opinion, would be

16 contrary to the jurisprudence of this Tribunal and contrary to a certain

17 concept of international justice.

18 In the Banovic sentence in paragraph 50, I think the position

19 expressed is identical to the one that I have just put forward.

20 The Prosecution in its brief also stated that it is necessary to

21 determine what the accused did with regard to detainees A and B and this

22 should be taken into consideration as an aggravating circumstance. With

23 regard to what they were forced to do, I think that this form of

24 humiliation with regard to determining the gravity of that crime, I think

25 that this is incorporated in the crime itself, and I'd like to repeat

Page 126

1 everything we've been able to see from one of the witness's statement. I

2 would like to emphasise what was stated in that statement.

3 So these arguments that the Prosecution has put forward with

4 regard to the aggravating circumstances are not correct because a crime

5 against humanity with which Mr. Cesic has been charged includes a

6 systematic attack against -- assumes that there was a systematic attack

7 against a civilian population, so therefore is incorporated in the act.

8 When we're talking about mitigating circumstances, I don't want to

9 repeat what is already set forth in the brief, but I must emphasise the

10 fact that a guilty plea at a very early stage, if the accused pleads

11 guilty, which he did at a very early stage, this is significant and we

12 compare it to the Todorovic case where the Trial Chamber found that his

13 guilty plea should be given its full significance because it was entered

14 26 months after his initial appearance. If that's the case, we must

15 emphasise that Mr. Cesic entered a guilty plea 16 months after his initial

16 appearance, and as the second Defence counsel for Mr. Cesic, I was aware

17 of the fact that the accused was prepared to enter a guilty plea from the

18 very beginning.

19 I now have to turn to a matter that has been the subject of

20 consideration on the part of the Tribunal's jurisprudence with regard to

21 entering a guilty plea.

22 Full and substantial cooperation and a guilty plea have to be

23 taken into consideration as mitigating circumstances. This has been the

24 case in the jurisprudence of the Tribunal. I must emphasise, and this is

25 something that was mentioned by the Prosecution in its brief, I must

Page 127

1 emphasise that Mr. Cesic has fully cooperated with the Prosecution. It

2 has been -- his cooperation has been substantial and sincere.

3 In certain cases it has been stated that entering a guilty plea or

4 cooperating with the Prosecution is something that occurs because it is to

5 the benefit of the accused in the case of substantial cooperation with the

6 Prosecution, and the Rules of the Tribunal provide for this possibility.

7 It's been established that substantial cooperation with the Prosecution

8 shall be taken to constitute mitigating circumstances. But we can't then

9 be -- enter a contradiction and say -- we can't contradict ourselves and

10 say that the accused thought he would benefit from this.

11 In the Todorovic case, the Trial Chamber found that such

12 cooperation had to be taken to be sincere and that the procedure itself

13 allows for the possibility of cooperation, and it has to be to the benefit

14 of the accused. In such situations when the accused tells his Defence

15 counsel that he wants to enter a guilty plea in order to show his remorse,

16 then it is the duty of professional lawyers - we are all aware of this

17 fact - that when discussing with the opposing side, this should be

18 beneficial to the accused. As a result, one cannot then claim that the

19 accused wanted to benefit from such a plea.

20 JUDGE ORIE: Mr. Bakrac, is there any disagreement between

21 Prosecution and Defence on these issues that you're discussing at this

22 moment? I do understand that you say that a guilty plea and you're also,

23 I think, referring to remorse, but at least cooperation with the

24 Prosecution should be mitigating. Is there any disagreement on that?

25 MR. HANNIS: No, Your Honour.

Page 128

1 JUDGE ORIE: Would you please proceed. And would you please

2 concentrate on issues that are in dispute rather than those on which there

3 seems to be a perfect agreement. Please proceed.

4 MR. BAKRAC: [Interpretation] Your Honour, I have to explain the

5 reason for which I have stated these things. I am convinced that the

6 accused's remorse is absolutely sincere. I know this is the case, but

7 naturally this is something that the Trial Chamber has to determine. I

8 just wanted to demonstrate that apart from simply declaring that the

9 accused felt remorse, the fact that the accused pleaded guilty on all

10 counts in the indictment supports the claim that his remorse is sincere.

11 So the reason for which I wanted to state my position with regard to these

12 two matters is that I wanted to provide the Trial Chamber with additional

13 information to convince the Trial Chamber that the remorse felt by the

14 accused for what he did is quite sincere.

15 And to try and conclude, I would just like to turn to matters of

16 disagreement between the Prosecution and the Defence. We disagree with

17 regard to the accused's good character. You and the Defence, we have

18 received certain documents to back up these claims. I don't have to

19 remind the Trial Chamber or the Prosecution that it is the Prosecution's

20 duty to establish certain facts beyond reasonable doubt, to prove certain

21 facts beyond reasonable doubt, and the facts that are the basis for the

22 sentence and which could also be the basis upon -- which could also be the

23 basis for aggravating circumstances.

24 If we have such a situation, then certain facts that have not been

25 proved can't be taken to be arguments, refute the other party's position.

Page 129

1 If the Prosecution has submitted certain documents and this has not been

2 proved, certain documents in order to back up the statements made by the

3 Defence on the good character of the accused, well, then in such a case we

4 would give these documents the necessary weight. Such documents can't

5 have any weight as evidence.

6 What can be taken to be aggravating circumstances can only be

7 contained in the factual basis, in facts that are not in dispute. In the

8 additional material provided by the Prosecution you have two statements

9 made by two witnesses about alleged cases of rape or attempts to rape. If

10 these facts had been proved, they would be contained in the indictment.

11 These facts can't be taken into consideration even if it's only to refute

12 the Defence's argument that the accused has a good character. This has

13 not been proved. These allegations have not been proved, so they can't be

14 taken into consideration.

15 If we also have a look at the two statements, you will see that in

16 both statements the accused is described in a totally different way, in a

17 way that does not concord, does not agree with the way he looked and the

18 way he is at the time. In the first statement it says that Ranko Cesic

19 has brown hair, brown eyes and hair of medium length. You have evidence

20 from the Prosecution, you have the accused here, you have another

21 statement made by a witness who said that he had very short hair, that he

22 had black hair. So this is probably also a reason for which this

23 statement wasn't taken into consideration.

24 With regard to the other witness, on the last page, you also have

25 a description of the accused. It says that Ranko Cesic is very tall, well

Page 130

1 built, has a big stomach and gaps between the teeth. So the other witness

2 also provided a totally different description of Ranko Cesic, and this is

3 probably the reason for which these statements were never given much

4 weight as evidence. They can't now be taken into consideration as

5 evidence if one is attempting to refute the Defence's arguments that Ranko

6 Cesic's character is good.

7 Our position is that if it is the position that the accused didn't

8 have any prior criminal convictions, this has to be based on evidence, and

9 we have been provided with evidence from the Prosecution. The Prosecution

10 has also provided information from some witness statements according to

11 which the accused had problems with the police. These are rumours. These

12 aren't facts that have been established, and these aren't claims that can

13 be used to refute the Defence's positions.

14 What the Prosecution provided as evidence is a charge that was

15 made in December 1991. It dates to a period before the war, and the

16 accused was not sentenced. In all legal systems, a suspect is considered

17 to be innocent until he is proven guilty. So the fact that certain

18 proceedings were instituted can't be taken as evidence to back up the

19 claim that his character is bad.

20 So if we can't take -- in addition to the fact that we can't take

21 this into consideration, if we have a look at this act, the essence of

22 this incident, you can see that Ranko Cesic comes from an area where the

23 idea of fairness is important. He protected some Muslims by preventing

24 two men from the opposing side from getting into a fight, from

25 participating into a fight. That's what Ranko Cesic did before the war,

Page 131

1 he didn't allow two adult men to join a fight, and this is something that

2 is supposed to show that his character is bad [as interpreted], and

3 naturally this is not something we can take into consideration because

4 these proceedings were halted.

5 And likewise, you have this in the documents provided by the

6 Prosecution, and it is stated quite unequivocally that the proceedings

7 were suspended because this Muslim person who was involved in a fight

8 couldn't be reached. You have this in documents produced by the

9 Prosecution, and if I have understood this correctly, you still don't have

10 the translation, but you can see there is a letter from the investigating

11 Judge, 13th of December, 1993, and it says that since Amir from Brcko is

12 not accessible to the state organs of the republic, he's not in Brcko, we

13 suggest that the proceedings be suspended. And it also says, from the SJB

14 station, the person we are trying to contact is not accessible and this is

15 why we're suspending the proceedings. It's because the person involved in

16 the fight was not accessible.

17 Everything that I have stated shows clearly that one such incident

18 where it was not even established whether Cesic was guilty or not, and I

19 have explained what the charges consist of, shows that he had no criminal

20 record before the outbreak of the war.

21 As for the second part of the letter submitted by the Prosecution,

22 you will see from the order bearing the date 28th of September, 1995,

23 there is a report from the president of the military court, who says that

24 Ranko Cesic is to serve a sentence, and it says that he has no previous

25 criminal record. This is found in document bearing the number IK139

Page 132

1 through 94. This shows that Ranko Cesic had no previous convictions.

2 We now come to a sentence, a single sentence that Cesic had and

3 that referred to a crime which I am deeply convinced my learned friends

4 call the crime of murder quite by accident. When you say the crime of

5 murder, it implies something similar to what the accused has been charged

6 with before this Tribunal. It should, however, be clearly emphasised that

7 this is actually manslaughter, manslaughter of a good friend, a Serb.

8 This was done by accident, and that is the final judgement of the court.

9 So it was not murder. It was manslaughter, and it was a very close

10 friend, a Serb, who was the victim.

11 If we bear in mind that, as the Defence submits, the Chamber

12 should not accept unproved statements bringing into question the good

13 character of the accused and the fact that there was one trial that was

14 suspended and one where he was convicted of manslaughter of a good friend,

15 a close friend, a Serb, then it is clear that, for the purposes of this

16 Tribunal, the accused does not have a prior criminal record and that his

17 crimes amount to the incidents mentioned in the counts of the indictment.

18 It is therefore quite clear that the Prosecution, with the best of

19 intentions, is unable to bring in facts that have not been proved even if

20 only as counter-arguments refuting the arguments of the Defence about the

21 good character of the accused.

22 Just before the war, the accused protected a friend of his, a

23 Muslim, and this is an indisputable mitigating circumstance. It is beyond

24 dispute because ten statements have been submitted by the Defence, one of

25 them from America where the maker of the statement has absolutely no

Page 133

1 reason not to tell the truth. And this shows that there was no prior

2 discriminatory behaviour by the accused Cesic.

3 Finally, another fact that supports the Defence submission that

4 the accused was of good character and with no prior criminal behaviour is

5 -- and we will now repeat what the -- what camp inmate A said in his

6 statement, that he knew Ranko Cesic well, that he could not believe that a

7 person like him could do something like that, and that he believed it was

8 done under orders from his superiors. What further proof can be needed of

9 the good character of the accused than a statement by the victim of one of

10 his crimes? If this is not considered as evidence, it must at least be

11 considered very probable as testimony to the good character of the

12 accused.

13 I will not repeat again what was said in the sentencing brief, but

14 when you look at the Todorovic case, Todorovic was sentenced for six

15 counts of sexual assault, three of which were identical. There was one

16 count of torture. There are many tortures. And I won't go into all the

17 counts again, but you will see in Todorovic what he, as the chief of

18 police, was charged with in Bosanski Samac. He was charged with

19 persecution and sentenced to ten years. Therefore, 13 years as the

20 minimum --

21 JUDGE ORIE: Yes. That will be your final sentence then because

22 we're running out of the tape, Mr. Bakrac, and I thought that upon your

23 indication that we could finish before the break. So if you could -- if

24 you could finish, please.

25 So please, if this was your last sentence, please complete it.

Page 134

1 And if not, try to find your last sentence very soon.

2 MR. BAKRAC: [Interpretation] Thank you, Your Honours. I did

3 apologise in advance. It's very difficult for me to estimate the time. I

4 will need only two or three more minutes.

5 I only wish to draw this comparison in order to draw attention to

6 something I have not come across yet in the jurisprudence but I feel is

7 relevant, and that is that although practice has shown that comparisons

8 are not very useful, they can be useful both for the victims and their

9 families, because let us not allow the seriousness of the pain of one set

10 of victims to be unfavourably compared with the suffering of a second set

11 of victims. We feel that a drastically higher sentence in comparison to

12 some other sentences in the jurisprudence of this Tribunal could also hurt

13 the feelings of the victims' families, because they must be equal in how

14 their pain and suffering is evaluated if some families see that a

15 perpetrator of a crime has been sentenced to far less than another

16 perpetrator. This would be an unfavourable comparison.

17 I would also like to respond to what the Prosecution said about

18 the practice in the former Yugoslavia. Nullum crimen sine lege means that

19 we cannot apply the later standards. I think that this was already

20 adjudicated in Todorovic, and although the Chamber is not bound by the

21 practice in the former Yugoslavia, the maximum sentence would have been 20

22 years for this accused, and we feel that all the arguments of the Defence

23 are sufficient for the Chamber to determine that 13 years would meet the

24 purpose of the sentencing.

25 I apologise if I have overstepped my time, Your Honours.

Page 135

1 JUDGE ORIE: Thank you, Mr. Bakrac. We will adjourn now until

2 5.00.

3 --- Recess taken at 4.42 p.m.

4 --- On resuming at 5.02 p.m.

5 MR. BAKRAC: [Interpretation] Your Honour.

6 JUDGE ORIE: Yes, Mr. Bakrac.

7 MR. BAKRAC: [Interpretation] Your Honour, if you will allow me,

8 before the break I finished, but at the kind suggestion of my learned

9 friends who followed the transcript, which I was not able to do, I only

10 wish to say that the accused has only one prior conviction which the

11 Prosecution submitted. What I said was that he was convicted of

12 manslaughter under Article 31 of the Criminal Code of the Republic of

13 Serbia, and we feel that there is a mistake in the transcript as my

14 learned friends indicated.

15 JUDGE ORIE: Yes, Mr. Hannis.

16 MR. HANNIS: Your Honour, the mistake, as we understand it, is the

17 way the crime was interpreted to me by our language assistant was

18 "negligent homicide." The term Mr. Bakrac is using continues to be

19 interpreted on the transcript as "manslaughter." That's the difference as

20 I understand it.

21 JUDGE ORIE: Yes. Just to try to clarify matters, because

22 homicide or murder negligent homicide or manslaughter are terms that could

23 easily create confusion. I do understand, Mr. Bakrac, and I more or less

24 similarly under the Prosecution that the conviction was on the basis that

25 although Mr. Cesic did not intend to kill someone, that he was blamed for

Page 136

1 being negligent, which negligence caused the death of the other person.

2 Is that a correct understanding? Let me first ask you. Is that a

3 correct understanding of your position, Mr. Bakrac? Yes. I see you're

4 nodding yes, so I take that for a "Da."

5 Mr. Hannis.

6 MR. HANNIS: Your Honour, I don't know the exact elements of the

7 crime as contained in Article 38 of the Criminal Code of the Republika

8 Srpska, but we have described the facts as were set forth in some of the

9 documents. It appeared to be a killing that was -- had some elements of

10 self-defence based on a mistaken belief of fact. In some jurisdictions

11 that would be more like a negligent homicide than a manslaughter. But

12 more than that, I can't add.

13 JUDGE ORIE: Is there -- I don't think that all the underlying

14 documents have been translated.

15 MR. HANNIS: No.

16 JUDGE ORIE: What document you used to base your conclusions upon,

17 and is that a judgement or is that a police report? Whatever is that?

18 MR. HANNIS: Your Honour, it was from two or three different

19 documents. At page 22, they're numbered with a handwritten number in the

20 lower right-hand corner. Number 22 is translated as being the verdict of

21 the military court in Bijeljina.


23 MR. HANNIS: Which had some of the reasoning as well as page 17,

24 which was the appellate decision of the supreme military court which had

25 reasoning. But detailed facts were contained in the documents at pages

Page 137

1 12 -- I'm sorry, 11 through 16.

2 JUDGE ORIE: And what is that exactly, the document, pages 11

3 through to 16?

4 MR. HANNIS: Your Honour, I can't tell you exactly because the

5 first two pages are partial pages. They apparently have been not aligned

6 correctly on the copier, and the first two pages, there's half a page or

7 less because it's canted sideways at a 45 degree angle or greater, and so

8 the title page I cannot tell you where it came from. I believe it comes

9 from the military court in Bijeljina, because the page immediately on top

10 of that is from the military court in Bijeljina, and it appears to relate

11 to that.

12 JUDGE ORIE: Yes. Is the authenticity of these documents in

13 dispute, Mr. Bakrac? I didn't hear anything about that.

14 MR. BAKRAC: [Interpretation] No, Your Honour. We are not

15 disputing the authenticity of that document. We only wanted to say what

16 the sentence was for.

17 JUDGE ORIE: Yes. But there seems to be a slight disagreement on

18 the exact meaning of what Mr. Cesic was convicted for and sentenced for.

19 The Chamber would like to receive the translations of these parts of the

20 document so that it can make its own assessment on whose interpretation of

21 these documents and the conclusions to be drawn from these documents, as

22 far as the conviction is concerned, is the correct one.

23 MR. HANNIS: We will submit those for translations as quickly as

24 possible.

25 JUDGE ORIE: Yes. And I take it, Mr. Bakrac, that you have seen

Page 138

1 those documents, so I take it that -- I take it that you'll receive a copy

2 of the translation as well so that you can at least have tested whether

3 the translations are correct, but apart from that, the authenticity of the

4 documents is not in dispute.

5 MR. BAKRAC: [Interpretation] The authenticity of the documents is

6 not in dispute. I trust my learned friends, and I received the document

7 from my learned friends, and this document says what the crime is. And on

8 the front page I have received this judgement which contains the judgement

9 and the legal description of the crime.

10 JUDGE ORIE: Yes. And the Chamber expects to receive the

11 translation of all the parts of the document you have just mentioned.

12 That is, what you considered to be the verdict, the decision of the

13 Appellate Court, and the decision pages 11 to 16.

14 That being clarified, I'll just see whether the Bench has any

15 questions.

16 [Trial Chamber confers]

17 JUDGE ORIE: Yes. Judge Liu has questions.

18 JUDGE LIU: Yes, I have some questions which is firstly addressed

19 to the Defence, Mr. Bakrac. I think in your presentations today, you

20 mentioned that three of the five murders which your client has been found

21 guilty of are kind of momentary incidents. What do you mean by saying

22 that is they are momentary incidents?

23 MR. BAKRAC: [Interpretation] Your Honour, of course I am not in a

24 position to evaluate this and it's not contained in the factual basis.

25 What I was trying to say was that both murders were committed by shooting

Page 139

1 from firearms, which means there was no additional maltreatment of the

2 victims or suffering which would be the case in -- if another method had

3 been used to murder the victims.

4 JUDGE LIU: Another issue is about the incident is that the

5 Prosecution does not agree a word called "isolated incident." What do you

6 mean by saying the "isolated incident"? You mean by the time frame or by

7 the entire environment at that time?

8 MR. BAKRAC: [Interpretation] Your Honours, one might say I was

9 referring to the overall situation or, rather, the jurisprudence of the

10 Tribunal. The murders were not committed under the umbrella of

11 persecution, of discriminatory intentions or a previously developed

12 system. We feel that these incidents are not connected to each other.

13 They happened during the ten days when the war had just began, when there

14 was a lot of confusion and very strong war propaganda.

15 JUDGE LIU: Thank you. Another question is about the paragraph 66

16 in your recent submissions. You acknowledge that although in this

17 Tribunal's practice there are different views with respect to age and the

18 justification of the age to be taken into account as a mitigating

19 circumstance, at the same time, you also mention that your client, when he

20 was -- when he committed those crimes, was at an age of 27 and a half, and

21 the conclusion you've drawn from this paragraph is that your client's

22 temporary criminis age is another mitigating circumstance.

23 What do you mean by saying that?

24 MR. BAKRAC: [Interpretation] Your Honour, I think that in the

25 jurisprudence, consideration was given to the age of the perpetrator. I

Page 140

1 can't refer to any particular case right now, but this circumstance was

2 taken as a mitigating factor. However, the jurisprudence of this Tribunal

3 has not established a boundary, a limit as to what age can be taken as a

4 mitigating circumstance, so that we feel this can be dealt with on a

5 case-by-case basis. We felt that in view of the circumstances, the age of

6 the perpetrator, the accused, may be considered to be young and can,

7 therefore, be taken as a mitigating circumstance.

8 JUDGE LIU: Well, according to the practice of most of the

9 jurisdictions, the age of adults is 16 or 18 years old, but here you

10 clearly state that your client's age was 27 and a half at that time, so

11 I'm a little bit surprised by that.

12 MR. BAKRAC: [Interpretation] Yes, Your Honour, you are quite

13 right, and according to the legal system of the country that I come from

14 there are minors but also young adults. Such a classification does exist

15 too. I really didn't have time to consult examples, but I just wanted to

16 mention the possibility that this age could also be taken into

17 consideration. In a wartime situation, this might be taken to be a young

18 age which prevents one from acting in a mature way and making decisions as

19 a mature adult, and especially when you find yourself within the context

20 of the vortex of war.

21 JUDGE LIU: Thank you. The last question is that you mentioned

22 that according to the local law, the maximum punishment is 20 years'

23 imprisonment. Could you please shed more light on that issue.

24 MR. BAKRAC: [Interpretation] With your leave, Your Honours, if I'm

25 not mistaken, in the Todorovic case that was an issue that was discussed.

Page 141

1 For war crimes, according to the law of the former Yugoslavia, the minimum

2 sentence was five years, and the death penalty, which could also be

3 replaced by a 20-year prison sentence was also provided for. So the

4 maximum penalty in the former Yugoslavia was a 20-year term in prison,

5 which would replace the death penalty.

6 The longest sentence in prison was 15 years.

7 Since the death penalty was abolished in our legal system, and I

8 assume that this is the case in all other legal systems, the main

9 principle is that the most beneficial ought to be applied to the accused

10 if a change has been introduced to the law since the crime was committed.

11 So I think that there is nothing to substitute a 20-year prison sentence,

12 which would be the longest sentence. And the Prosecution, which has

13 claimed that the new law of Bosnia-Herzegovina from 1987 should be

14 applied, which provides for a sentence ranging between 20 and 40 years. I

15 don't think this could be applied at all because this would also be

16 contrary to the nullum crimen sine lege principle, which is familiar to

17 all legal systems.

18 JUDGE ORIE: If I may ask: Perhaps if you would -- it says the

19 law of Bosnia-Herzegovina from 1987, and that would violate the nullum

20 crimen sine lege. Is that a correct understanding, it's 1987?

21 MR. BAKRAC: [Interpretation] No, Your Honour. From 1998, because

22 in 1987, Bosnia-Herzegovina -- the law in Bosnia-Herzegovina had the same

23 law as the territory of the former Yugoslavia. When I said that the

24 maximum sentence was 15 years, that was at that time, but the Prosecution

25 in its brief - I don't know exactly where it is, I can have a look for

Page 142

1 the paragraph - the Prosecution argued -- yes, it's 66. And they mention

2 the law of Bosnia and Herzegovina from 1998.

3 JUDGE ORIE: Yes. I was just pointing at a number in the

4 transcript.

5 MR. BAKRAC: [Interpretation] Yes. And when I mentioned this

6 principle nullum crimen sine lege, this refers to the law from 1998.

7 JUDGE LIU: Well, the last question: Do you understand that this

8 Tribunal will not be bound by the local law and the practice as well as

9 the plea agreement reached by the parties?

10 MR. BAKRAC: [Interpretation] Yes, Your Honour, I understand that,

11 and I have also informed my client of this. He understands this too.

12 In my brief, I didn't refer to the jurisprudence in the former

13 Yugoslavia. This was just a response to part of the Prosecution's brief,

14 the part where they mentioned the practice in the former Yugoslavia, so I

15 thought that it would be appropriate for the Defence counsel to also

16 express its position with regard to this issue.

17 JUDGE LIU: Thank you very much. I have no more questions,

18 Mr. President.

19 JUDGE ORIE: Thank you, Judge Liu.

20 I have a few questions, and perhaps some of them could be more

21 easily answered by Mr. Cesic himself, but before I address the Defence,

22 first I have a question for the Prosecution.

23 Mr. Hannis, quite some attention has been paid to the consequences

24 of the crimes for the family of the victims, the effect on the victim

25 families. For example, I see that in paragraph 30, you are referring to a

Page 143

1 statement in which it is said that the mother of Mr. Mujagic suffers from

2 mental disturbance as a result of the killing of her son and how terrible

3 it must be to lose a son. She is at the age of 72, and apart from the

4 statement itself, is there any other source that could -- that could

5 confirm the causal relationship between the mental disturbance and what

6 had happened to her son? And a similar question would be we find in Annex

7 A, we find a relative of one of the victims talking about loss of weight

8 and also about disorder of an immune system which, as I understand, might

9 not be easy to relate directly in a causal relationship with what had

10 happened.

11 Is there any further support for that or what's your view on the

12 evidence needed to -- to establish such causal relationships?

13 MR. HANNIS: Your Honour, we do not have additional information

14 other than those statements directly from the victims themselves.

15 However, I would indicate that the question was phrased to them when they

16 were interviewed, "Can you tell us how this crime that was committed

17 against you or against your relative has impacted you?" and this was the

18 answer they gave. I understand there could be all sorts of other

19 contributory factors to that ultimate condition as to each of those, but

20 that was what they related their condition to.

21 JUDGE ORIE: Yes. Thank you very much.

22 Now, I would like to ask a few questions. In the sentencing brief

23 it is said that Mr. Cesic is -- well, has an income at a relatively low

24 level, but I don't think it's entirely clear what professional activities

25 of Mr. Cesic have been, well, let's say since the war is over. Could

Page 144

1 Mr. Cesic or could you inform the Court about the precise development?

2 Was he employed, where, and when?

3 MR. BAKRAC: [Interpretation] I have confirmation that he was a

4 leather craftsman, that after the war and after he left Brcko, as far as I

5 am aware, he did not have any income. He lives with his wife whom he

6 married before he came to The Hague, before he was arrested, and he lived

7 with her before as well. She works as an agricultural technician in a

8 place near Belgrade, and that was the only source of income for him. In

9 addition, I attached to my brief certificates from Brcko which show that

10 he hasn't been taxed as the owner of property of any kind.

11 JUDGE ORIE: When did he leave Brcko? Is that --

12 MR. BAKRAC: [Interpretation] Your Honour, I have to admit that

13 this is something you're going to have to ask Mr. Cesic. I'm not sure.

14 JUDGE ORIE: Mr. Cesic, I do understand that you finally lived in

15 Belgrade. When did you leave Brcko and move to Belgrade?

16 THE ACCUSED: [Interpretation] Your Honour, towards the end of

17 1996.

18 JUDGE ORIE: Thank you for your answer.

19 Mr. Bakrac, I read on my screen that you said that Mr. Cesic

20 married before he was arrested. I found in the pre-trial brief that he

21 married after the war ended. You -- when exactly was Mr. Cesic arrested?

22 Because we find that in the Prosecution's -- in the Prosecution's

23 sentencing brief, I think it says it was on the -- let me just -- it's in

24 the procedural history. Let me just find it.

25 MR. BAKRAC: [Interpretation] Your Honour, perhaps I could --

Page 145


2 MR. BAKRAC: [Interpretation] Perhaps I could clarify this. It is

3 my mistake. I was probably imprecise but it wasn't my intention to be

4 imprecise because these are facts that are not in dispute. When I said

5 after the war in Bosnia-Herzegovina, I was speaking in a very broad sense.

6 To be precise, the accused Cesic got married to someone with whom he

7 lived, and this, according to our legal system, was considered to be

8 something like a marriage. It was on the 30th of May, 2002. That's when

9 he officially got married in the premises of the central prison of

10 Belgrade, before he came to The Hague. If I'm not correct, I think the

11 accused will correct my mistake.

12 JUDGE ORIE: Yes. On the basis of the documents, I also learned

13 that he was arrested on the 25th of May and that he married officially on

14 the 30th of May. Yes. And that's certainly after the war had ended.

15 I have another question to you in respect of the paragraph 66 you

16 referred to and about the rule nullum crimen sine lege. Would you agree

17 with me that the most favourable law should be applied if the law changes

18 after the crimes have been committed? Is that what you understand as part

19 of the rule nullum crimen sine lege?

20 MR. BAKRAC: [Interpretation] Yes, that's how I understand it, and

21 this is what I stated awhile ago.

22 JUDGE ORIE: Yes. Let's just for sake of argument assume a system

23 in which for a certain crime there is compulsory capital punishment. Yes.

24 So everyone that commits that crime should be sentenced to death. If now

25 the law changes and says the death penalty will not be applied any more,

Page 146

1 but you get a prison sentence up to 50 years, is it your understanding of

2 the rule of nullum crimen sine lege that he could neither be sentenced to

3 death because that was the heavier punishment, but could he then get the

4 50 years after that as the more lenient rule?

5 MR. BAKRAC: [Interpretation] Your Honours, a prison sentence is

6 more lenient than the death penalty. That's certain. The problem of

7 applying the law in the former Yugoslavia is one that is perhaps a little

8 more familiar to me.

9 The practice, I don't have the exact information at the moment,

10 though, was such that no crime was subjected to the death penalty as a

11 matter of course. They said that the minimum prison sentence would be 20

12 years or the death penalty. Since the former Yugoslavia had two republics

13 and it had a federal law, these republics also had their laws and

14 constitutions. The constitution of the federal state abolished the death

15 penalty and the republics retained the death penalty. And at the time

16 that overlaps with the time during which these crimes were committed you

17 had the death penalty on paper but it was never implemented. The 20-year

18 prison sentence would replace it so that problem, that legal problem,

19 still exists because we are still processing certain crimes that were

20 committed far earlier around this time. So this is a constant discussion

21 whether the new law which is in force in Yugoslavia, is it possible for a

22 prison sentence of 40 years to be handed down. Is that a more lenient

23 sentence or is it a more severe sentence than the one that provided for

24 the death penalty? But this has in fact been abolished from the federal

25 constitution, and in its place the 20-year prison sentence would be

Page 147

1 applied.

2 So I didn't want to enter into this matter above all because I am

3 aware of the fact that the Trial Chamber is not bound by the sentencing

4 practice in the former Yugoslavia, although it takes this practice into

5 consideration, the Trial Chamber can decide at its discretion. But I just

6 wanted to express my position with regard to what the Prosecution stated,

7 and I am glad, I have to admit, that you asked me about this because I

8 wanted to clarify this issue and have the opportunity to comment on it.

9 JUDGE ORIE: Is there any case law, for example, when the 20 to 40

10 years was introduced, is there any case law which says that you could not

11 sentence someone to 25 years where the crime was committed under the old

12 regime which still provided for the death penalty because this was the

13 more -- the 20 years was the more lenient system? I'm just asking whether

14 you look at that system as a whole or whether you split it up in several

15 parts and say this is the lenient part of the whole law or you say the

16 whole law in general terms is more lenient than the old one because the

17 capital punishment has been abolished and instead of that we now restrict

18 ourselves to prison sentences, although to a higher limit than before.

19 Should we look at it as a whole or should we look at specific

20 parts of it?

21 MR. BAKRAC: [Interpretation] Well, Your Honours, I've just tried

22 to clarify my position. We're talking about the practice in the former

23 Yugoslavia. I couldn't provide a simple answer to that question.

24 Naturally a term of 40 year sentence in prison is more lenient when

25 compared to the death penalty. That's my position. But I tried to

Page 148

1 explain why this matter is still being discussed in my country, and with

2 regard to certain specific examples, I can't tell you what these exact

3 examples are, but there is a discussion as to which law is more lenient,

4 and this discussion is still ongoing in my country, in our legal system.

5 This is why I can't provide you with a simple answer to your question.

6 That is the specific situation that we had at the time.

7 JUDGE ORIE: Yes. Thank you. My next question is about the

8 judgement issued by the military court. Do I understand well that it's

9 not contested, that Mr. Cesic had a weapon when his friend died and that

10 his friend died as a result of a bullet that was fired from that weapon?

11 I'm not saying intentionally fired, but at least that a bullet that came

12 from that weapon.

13 MR. BAKRAC: [Interpretation] Yes, Your Honour, that is correct.

14 And I think that it's necessary to respond as briefly as possible. It is

15 correct, but I would like to draw your attention to the fact that this

16 incident took place at the time of the war when Ranko Cesic and the

17 members of the army were carrying arms.

18 JUDGE ORIE: Yes. Do I then well understand that Mr. Cesic had --

19 was allowed to carry an arm at that very moment, even under, as I

20 understand from the information, under private circumstances, in a private

21 home?

22 MR. BAKRAC: [Interpretation] Your Honour, I think that you have

23 quite a lot of experience of cases from that period. There is no strict

24 distinction made. After the 22nd of June, 1992, Cesic was no longer a

25 member of the reserve police force. He was a member of the army, and

Page 149

1 there were really no strict rules as to when one could carry a weapon,

2 when one could not, given that the war was still raging. I believe that

3 these persons had their weapons at all times.

4 JUDGE ORIE: Yes. Yes. Thank you for answering these questions.

5 Those are my questions.

6 If the parties would like to finish their submissions by making

7 further short comments, I would allow them to do so for, I would say, not

8 more than five to seven minutes, and the parties should then keep to the

9 core of the case and preferably address issues that newly came up or

10 otherwise really restrict themselves in time considerably.

11 Mr. Hannis.

12 MR. HANNIS: Thank you, Your Honour. There were a few points

13 raised by Defence counsel that I wanted to address with the Court. One

14 concerned youth as a mitigating factor. I had not addressed that before,

15 but the Prosecution would argue that the age of 27 and a half is not such

16 a young age as should be counted as a mitigating factor in the

17 circumstances of this case.

18 As part of the Defence submission, they included his military book

19 which shows that he served his initial military service in 1983 or 1984,

20 so we would argue that he's well beyond the age of majority and that youth

21 should not be considered a mitigating factor for him.

22 In addition, Defence raised an argument about Mr. Cesic not having

23 any rank and therefore he should not be seen as a person abusing any --

24 any power or authority he had. I think Your Honour asked a question

25 concerning that before. I would note that in the supplemental pleading

Page 150

1 which included the redacted statement of victim A from counts 7 and 8, the

2 sexual assault, in his witness statement at page 6 where he's describing

3 the sexual assault, he indicated that Ranko Cesic had ordered him and his

4 brother to begin performing that sexual act on each other, but then he

5 left for 30 or 45 minutes, and before leaving, Mr. Cesic ordered the other

6 soldiers there standing guard not to let the brothers go and to make them

7 continue until Mr. Cesic returned.

8 So in spite of Defence counsel's argument that Mr. Cesic -- in

9 spite of Defence counsel's argument that the witness said he couldn't

10 understand how Mr. Cesic could do anything like this and that he must have

11 been acting on orders from above, it appeared Mr. Cesic was actually

12 giving orders in this case to the soldier below him or at an equal level

13 to make sure that this act continued until he returned.

14 JUDGE ORIE: May I ask you one thing? Passing orders in a

15 direction below does not [include] exclude receiving any orders or any

16 instructions received from above. Do you agree with that?

17 MR. HANNIS: I do agree.

18 JUDGE ORIE: Yes. Thank you. Yes. Where the transcript says

19 "does include" I perhaps have not pronounced the words carefully but I

20 think I said "does not exclude receiving any orders..."

21 MR. HANNIS: That's what I understood you to say, Your Honour.

22 JUDGE ORIE: Yes it appears different in the transcript. In order

23 to avoid whatever confusion, I just note that.

24 MR. HANNIS: And one other argument Defence counsel made concerned

25 the sexual assault and humiliating or degrading treatment count in 7 or 8.

Page 151

1 He argued that the nature of humiliating and degrading treatment as a

2 violation of the laws or customs of war actually subsumes the conduct that

3 we have argued should be considered an aggravating factor. I'm partially

4 willing to concede that may be true as to the count where it's a violation

5 of the laws or customs of war, but that would not be true as to the count

6 where it's a crime against humanity, because the degrading treatment, the

7 humiliating nature of that offence is not an element of rape or other

8 forms of sexual assault as those are defined under crimes against

9 humanity.

10 May I consult?


12 [Prosecution counsel confer]

13 MR. HANNIS: I have nothing further, Your Honour. Thank you.

14 JUDGE ORIE: Thank you, Mr. Hannis.

15 Mr. Bakrac, any further submissions? I would impose the same time

16 limits to you as I did to the Prosecution.

17 MR. BAKRAC: [Interpretation] Your Honour, you will probably be

18 surprised, but I think any additional comments would be superfluous. I

19 feel I have spoken enough about all these issues.

20 JUDGE ORIE: Yes. Mr. Bakrac, if Mr. Cesic would like to add

21 anything to what has been said today, he will have the opportunity to do

22 so. If you want to consult with him, fine, but I just want to let you

23 know that if he wants to add anything, that this is the moment to do it.

24 [Defence counsel and accused confer]

25 MR. BAKRAC: [Interpretation] Your Honour, Mr. Cesic abides by the

Page 152

1 statement he made and feels there is no need to repeat it. He begs that

2 this not be interpreted as an absence of sincere remorse. He wanted to

3 repeat what he has already said but we feel there is no need to do that.

4 JUDGE ORIE: Yes. Thank you. Then finally I address both parties

5 for the following issue, an evidentiary issue. I know that the

6 jurisprudence of this Tribunal is not entirely clear as to evidence on

7 sentencing. Some Chambers take it that Rule 92 bis would be the rule to

8 be applied, whereas others, rather, rely on more -- I would say more

9 flexible system under Rule 101. I didn't hear anything from the parties

10 as far as formalities of evidence are concerned.

11 May I can take it -- may the Chamber conclude that both parties

12 agree that the Chamber could consider whatever is in the submissions and

13 the attachments that have been provided to the Chamber and that

14 formalities, I see that some of the statements, for example, of the

15 Defence have been given in the presence of a notary public, others have

16 not been, but that the parties expect the Chamber to consider whatever is

17 there. I'm not talking about the weight to be given to it. I'm not going

18 to -- I'm not speaking about the test to be applied whether aggravating

19 circumstances should be dealt with in a different way, but just as the

20 source of evidence that we could consider whatever is in the documents

21 submitted to the Chamber.

22 May I? Mr. Bakrac first perhaps for this time. It's always the

23 Prosecution who is first.

24 MR. BAKRAC: [Interpretation] Your Honour, I wish to say that all

25 the evidence presented by the Defence and attached to the sentencing brief

Page 153

1 and all the documents submitted by the Prosecution along with their

2 sentencing brief were previously discussed between the Office of the

3 Prosecutor and the Defence counsel, and I believe that the Chamber was

4 also informed of this.

5 I could have had these statements certified in Bosnia and

6 Herzegovina or with the Registry or we could have called all the witnesses

7 but we felt this evidence would not be challenged and that's why we didn't

8 do this.

9 We also feel that the Prosecution has accepted the documents

10 submitted by the Defence along with the Defence sentencing brief.

11 I felt it necessary to mention this precisely because the Defence

12 does not agree with the evidence submitted after the submission of the

13 sentencing brief, that is, the additional documents that were added on

14 later, for the following reason, Your Honour -- that is I have already

15 stated the reasons in my closing arguments, so I will not repeat them.

16 JUDGE ORIE: Yes. May I have the position of the Prosecution.

17 MR. HANNIS: Your Honour, we had had discussions with Mr. Bakrac

18 before -- before today, and we had agreed to a less formal procedure,

19 intending that the Court would accept those documents, because we've had

20 satisfactory dealings in the past and felt comfortable with that.

21 JUDGE ORIE: Yes. I'm just wondering about the additional

22 documents that were added on later. There's no agreement upon that?

23 MR. HANNIS: No. We did not have any agreement about that.

24 JUDGE ORIE: Yes. It may be clear that the Court asked for the

25 production of at least some parts of that material, especially since the

Page 154

1 authenticity is not contested. So certainly to that extent, it will be

2 used.

3 The reason why I'm raising it is because I didn't want any -- any

4 confusion as far as the expectation of the parties is concerned in respect

5 of how we would deal with evidentiary issues and the position of the

6 parties seems to be clear to me now.

7 [Trial Chamber confers]

8 JUDGE ORIE: Yes. The Chamber would very much like the Defence to

9 file in detail its objections against the use of the later added documents

10 in writing. So if you would please address that within one week from now

11 on, and of course the Prosecution is invited also to provide the

12 translations of the relevant parts of the documents as soon as possible.

13 Would one week be possible or --

14 [Prosecution counsel confer]

15 MR. HANNIS: Well, Your Honour, with the weight of the Court

16 behind the request, we hope that we can get that in a week, either between

17 CLSS and or our own language assistants.

18 JUDGE ORIE: Let's take them perhaps a bit more time. Let's say

19 within 12 days. Then the course the same would be true for -- the same

20 time limit would apply for the submission of the Defence. Yes.

21 Then this -- yes, Mr. Bakrac. Anything else?

22 MR. BAKRAC: [Interpretation] No, Your Honour. I do apologise.

23 You probably misinterpreted my attempt to see what the last day of the

24 deadline would be.

25 JUDGE ORIE: Yes. Then this concludes this sentencing hearing in

Page 155

1 which we heard the submissions of both parties, and we have heard your

2 answers to some questions, Mr. Cesic.

3 The sentencing judgement will be delivered in due course.

4 We are adjourned.

5 --- Whereupon the Sentencing Hearing adjourned at

6 5.53 p.m.