Tribunal Criminal Tribunal for the Former Yugoslavia

Page 431

1 Thursday, 6 November 2003

2 [Sentencing Proceedings]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.09 a.m.

6 JUDGE SCHOMBURG: A very good morning to everybody. May I ask

7 Madam Registrar, please, to call the case.

8 THE REGISTRAR: Good morning, Your Honours. Case number

9 IT-94-2-S, the Prosecutor versus Dragan Nikolic.

10 JUDGE SCHOMBURG: Thank you.

11 And today's appearances, for the Prosecution.

12 MS. SELLERS: Good morning, Your Honour. I'm Patricia Sellers for

13 the Prosecution. Mr. Upawansa Yapa will be joining us shortly.

14 Mr. William Smith, trial attorney for the Prosecution, and Diane Boles,

15 our case manager.

16 JUDGE SCHOMBURG: Thank you. And for the Defence?

17 MR. MORRISON: Howard Morrison and Tanja Radosavljevic for the

18 defendant, Dragan Nikolic.

19 JUDGE SCHOMBURG: Thank you.

20 And, as usual, may I ask Mr. Nikolic himself, can you follow the

21 proceedings in a language you understand?

22 THE ACCUSED: [Interpretation] Yes, I can.

23 JUDGE SCHOMBURG: Thank you.

24 Let's go then media in res, and may I ask the Defence to continue

25 with the interrupted testimony of Dr. Grosselfinger.

Page 432

1 [The witness entered court]

2 JUDGE SCHOMBURG: Good morning, Dr. Grosselfinger.

3 THE WITNESS: Good morning.

4 MR. MORRISON: Your Honour, I am not entirely sure whether the

5 Prosecution had their opportunity to ask Dr. Grosselfinger all the

6 questions they wished to do so. So may I make that inquiry first.

7 [Prosecution counsel confer]

8 JUDGE SCHOMBURG: Just for the record, good morning, Mr. Yapa.

9 MR. YAPA: Good morning to Your Honours. As far as I remember, I

10 concluded my questions on the last day.


12 MR. MORRISON: Well, I'm grateful for that.

13 Questioned by Mr. Morrison:

14 Q. Dr. Grosselfinger, yesterday I handed to you three questions

15 concerning the testimony or the record that you gave. The first of those

16 questions was this: Did you consult any particular empirical studies in

17 the preparation of your report? If so, which? Can you assist me on that,

18 please.

19 A. Yes. Generally, I have tried to keep myself familiar with a great

20 body of criminological literature, which deals in particular with the

21 relationship between perpetrators and victims. And that was one of the

22 areas that I kept most closely.

23 And one of the studies that I actually had mentioned in the course

24 of my dealings with personnel at the Tribunal was a study prepared by

25 Professor Eric Stover of the University of California, Berkeley, and was

Page 433

1 part of a larger project but he did particular a separate study on the

2 witness here at the ICTY. And it was an empirical study. It was released

3 in May of 2003, came into my hands, I would say, in August or September,

4 and that is a piece of empirical research which I did make reference to in

5 the course of my conversations.

6 Q. Can you give us - and I appreciate this is always a difficult

7 task - the most concise of summaries of Professor Stover's studies?

8 A. Well, one of the things he focussed on was the satisfaction level

9 of the victim with their treatment here at the Tribunal in various

10 dimensions, satisfaction in terms of finding themselves able to give

11 testimony, finding themselves called to give testimony at all, actually

12 being brought into the courtroom to give testimony, and follow-up of the

13 case subsequent to their giving testimony. And while there was much

14 satisfaction, there was not complete satisfaction, and there were persons

15 who felt that there could or should be either more comprehensive use of

16 their knowledge of the situation or other means for them to participate or

17 divest themselves, make themselves more whole.

18 Q. All right.

19 A. And that was -- that was one of the most -- for me the most

20 striking concerns.

21 Q. If I understand that correctly, there are then some detainees who

22 feel that the knowledge which they have should be shared with the

23 Tribunal; is that putting it too simplistically?

24 A. I'm not sure that they were looking necessarily for the detainees

25 to be more forthcoming. It was mentioned, but I think more they were

Page 434

1 looking for means for their own self-expression, which may have been

2 partially satisfied by a response or commentary from the detainee or

3 knowledge that the detainee held.

4 Q. The second question I posed was this in writing: How substantial

5 was the discussion with Mr. Liam McDowal^ - that's page 8 of your

6 report - was any programme or literature discussed or consulted?

7 A. My recollection is that I spoke with Mr. McDowal on a Thursday

8 morning -- a Wednesday or a Thursday in the second week of my preparation

9 of the report, so I think that would have been around about October 17th

10 or -- 16th/17th, something in that range.

11 I approached him through the Registry. I got his number from the

12 Registry, and therefore I assumed that the Registry may have forewarned

13 him of my calling. His almost first statement of me was I will be going

14 on leave at the end of today or today. I offered immediately to strike an

15 appointment with him, come over immediately to the Tribunal. He said,

16 "No, that wouldn't be necessary. Perhaps we could speak on the phone."

17 And in the end, I think our conversation was approximately 15 minutes at

18 maximum. The content of which was to give him an overview of some

19 possible programmes that might exist in the community at this point in

20 the -- in the community in which the offence took place or that might be

21 constructed in order to satisfy the Tribunal's needs for a victims group

22 in that particular community, to the extent that it has cases there.

23 We did not discuss literature.

24 Q. No. I simply -- I asked that question just in case there was

25 anything that had been reduced into writing that would assist the Trial

Page 435

1 Chamber in such programmes.

2 I may come back to that later, the -- the actual concept of

3 Mr. McDowal and his responsibilities.

4 And the last question I posed in writing is this: Mention is made

5 of consultation with Mr. McFadden of the UNDC, page 9. Was there any

6 literature referred to by way of internal notes or reports, or was it all

7 oral?

8 A. It was all oral. I called Mr. McFadden on two occasions. On both

9 occasions, I offered and asked to meet with him. The first occasion was

10 when I first received the order to carry out the study, I called him

11 almost first or second to inform him that I would need to see the accused.

12 And it was news to him. I at that time asked to speak with him

13 and -- about the accused in particular. And as the report indicates,

14 that he didn't feel that was necessary.

15 Subsequently, I spoke with him again at the time of presentation

16 or contemplation of reading the medical record and the need for access.

17 And again I offered to speak with him. He said he didn't think that would

18 be necessary. He had just that day received an order from the Court to

19 prepare his traditional report and that he would be filing his remarks

20 inside of that report.

21 Q. Well, as it happens, that's a report that hasn't yet made its way

22 to the Defence, but we can deal with that later.

23 I notice from your curriculum vitae -- which if I may say, is an

24 extremely impressive record of academic and practical achievement -- that

25 from 1972 -- 1967, indeed, to 1977, some ten years, you were involved in

Page 436

1 effect as a probation and parole officer directly dealing with offenders;

2 is that correct?

3 A. Yes, sir.

4 Q. As a backward to that direct involvement with defenders, you

5 already had completed your degree in sociology.

6 A. Yes.

7 Q. I think that's correct.

8 You are therefore, is it fair to say, well used to doing the sort

9 of study, in terms of face-to-face confrontation with offenders, that you

10 did with the defendant in this case?

11 A. I had -- at that time, I had a fair amount of experience, yes.

12 Q. It's -- it may be a comment rather than a question, but it -- ten

13 years seems quite a lot of experience to me. Were you drawing on the

14 experience that you had then when you interviewed Mr. Nikolic?

15 A. Yes. In part.

16 Q. In part.

17 You're here as an expert. Do you feel in yourself that you have

18 come to the stage where you can make a valid assessment when you're

19 speaking to somebody, whether or not they are being open and truthful with

20 you?

21 A. I think I have a pretty good sense of it. I can't be sure that

22 I'm not being given the slip.

23 Yes, well, that's probably true of all of us, but we don't all

24 have your experience. But with your experience, you say you have a pretty

25 good sense of it. Did you have a pretty good sense of it with Mr.

Page 437

1 Nikolic?

2 A. Yeah, I did.

3 Q. That he was being open and truthful with you?

4 A. Yes, I did.

5 Q. Now, turning to your report, in its actual detail, we know that

6 Mr. Nikolic has pleaded in full, the actual plea, it took approximately an

7 hour of court time when he entered his pleas to the indictment in full.

8 And I think he effectively did the same for you. Is that correct?

9 A. Yes. I -- I believe that I went through it fairly thoroughly,

10 largely because I was looking to see if he would retract or equivocate or

11 sometimes even some accused tell you, "My lawyer told me to do it." So I

12 wanted to see if he was -- it was coming from him, rather than some other

13 motivation.

14 Q. On the first page of your report, about -- under the general

15 heading of "Executive Summary," almost exactly halfway down you start a

16 paragraph, "Mr. Nikolic expressed his personal responsibility for these

17 behaviours."

18 A. Yes, I see it.

19 Q. You go on to say: "He expressed remorse and regret in each case

20 of an individual and for his more general conduct in the counts where

21 specific victims were not named." Now, I read that as saying that he went

22 through, as it were, almost victim by victim; is that correct?

23 A. Yes, he did. I took him through victim by victim.

24 Q. And in each case he expressed apology and apology and remorse and

25 regret?

Page 438

1 A. It's because I asked him categorically: How do you feel about

2 this?

3 Q. The field was rather widened then. You say this: He expressed

4 apology for the entire offensive undertaking, which he accepted to have to

5 have been a part, although not a planner." By "the entire offensive

6 undertaking," did you understand him to mean the war in that area?

7 A. Yes, I did.

8 Q. And what happened during the course of the war in that area.

9 A. Yes. And not just the war but the misconduct affiliated with the

10 war.

11 Q. So not only his misconduct but effectively the misconduct of

12 others unnamed.

13 A. Yes.

14 Q. Did you get the sense that it followed from that that he was

15 expressing regret for the, as it were, the political policies of others

16 who had started this conflict?

17 A. Yes, I thought he was taking on perhaps more responsibility, but

18 he was expressing regret for the political.

19 Q. He then went on to say that he was at a loss to explain his

20 behaviour and it was still a mystery to him how he could have engaged in

21 such brutal behaviour.

22 A. Yes.

23 Q. Unlike any other time in his life.

24 He went on to give you his background details. Turning over,

25 please, to the next page, it's about -- again, about halfway down.

Page 439

1 It starts, "After three years and five months." Do you see that

2 paragraph?

3 A. Yes, sir.

4 Q. It goes on to say: "He's prepared to face the future, accept the

5 consequences, express acceptance of responsibility and remorse, and offer

6 an apology for his behaviour in writing." It then goes on to say this:

7 "Or in a face-to-face encounter with his individual victims or victim

8 groups if they wished."

9 Now, that's an easy thing, perhaps, for anybody to say. What was

10 your perception of the honesty and openness with which it was expressed to

11 you by Mr. Nikolic?

12 A. I had no hesitation in receiving that as a faithful presentation.

13 He said it to me more than once. He said it to me more -- on more than

14 one occasion. He had his own ideas about how it might take place. He

15 could understand that there might be other ideas about how it would take

16 place. He understood that he was likely to express -- experience in such

17 an endeavour, especially in a face-to-face endeavour, a great deal of

18 personal animus towards him, whether he was the perpetrator of the offence

19 to which the individuals were -- or he was representative of a class of

20 persons who had been offended -- who had offended.

21 Q. Now, that seems to be contained -- it's jumping -- it would take

22 us all day if I was going to go through the report line by line, and I can

23 say now, as far as the Defence is concerned -- the report is accepted in

24 its entirety, as far as the Defence is concerned, as the truth of the

25 evidence of its contents. And I make that plain.

Page 440

1 But I jump, therefore, to page 7. Again, it's almost exactly

2 halfway down. It's under the subheading "Offender's attitude regarding

3 victims."

4 A. Yes, I see it.

5 Q. Which can be read for its obvious meaning.

6 But the second paragraph begins, "When asked how he might go about

7 approaching" --

8 THE INTERPRETER: Could the speakers please slow down and pause

9 between question and answer. Thank you.

10 MR. MORRISON: I'm sorry. Thank you.

11 Q. He was asked -- when asked how he thought he might go about

12 approaching victims, he offered a strategy. Is that correct?

13 A. Yes. This was, again, I thought indicative of the fact that this

14 was not a new idea, that it just crossed his mind as I started to raise it

15 with him. He had the notion of contacting persons whom his family had

16 informed him would already be interested in talking to him, that were in a

17 friendly mode toward him, and he would use them more or less in a snowball

18 strategy, after speaking with them, seeking them as interveners or

19 recommenders or subsequent persons whom he might speak to try and repair

20 the social fabric.

21 Q. We then go on over the page, again almost halfway down, where you

22 indicate that you contacted Mr. Liam McDowal and we've already discussed

23 that a little.

24 A. Yes, I'm with you.

25 Q. I don't think it's contested, either in this case or indeed in any

Page 441

1 other case in this Tribunal, that although Mr. Nikolic is in fact the only

2 person from Vlasenica who has faced indictment, there will be many other

3 suspects in that area. Is that the impression that you got?

4 A. I really couldn't answer that, Counsel. I just don't know.

5 Q. Well, I don't think the Office of the Prosecutor and myself have

6 any distance between us as to that.

7 I just want to deal with one matter at the bottom of page 9, where

8 he specifically mentioned that he -- his -- my co-counsel and his

9 co-counsel had been bringing him in books and he'd been reading authors

10 such as Thomas Mann, Tolkien, Dostoyevsky, Harold Robbins and Herman Hesse

11 and Paulo Coelho. Did that in any sense surprise you?

12 A. Well, I thought it was a turn in a good direction. Number one,

13 he, he had previously admitted he wasn't a particularly good student when

14 he was in school, number one.

15 Q. Yes.

16 A. Number two, as an academic I didn't mention in my vitae that I was

17 a professor for ten years and I've also been in school myself quite a few

18 times. I believe strongly that when we read either for personal enjoyment

19 or for study, we are transformed by what we read for better or worse. And

20 he was reading -- he admitted that he was reading voraciously and with

21 great interest some of these writers, who are known for their complex work

22 and -- not all of them. Some of them are fun. But I was -- I thought

23 that was a positive step, because given the circumstances in which he

24 found himself, it was one of the ways that he could perhaps come to know

25 himself better by reading some of this type of material.

Page 442

1 Q. With great respect to Harold Robbins, if we could leave him

2 slightly aside.

3 A. That's why I said fun.

4 Q. Yes, Thomas Mann, Dostoyevsky, Herman Hesse and Paulo Coelho are

5 not easy reads, are they?

6 A. From the little long-time-ago exposure I have had, I would say not

7 so. They are stimulating writers.

8 Q. It depends on which work you are referring to, but those authors

9 deal in detail with complex human emotions and issues, and it requires a

10 pretty fair determination and understanding of the human condition to get

11 the best out of them; is that fair?

12 A. Well, it depends on what level that you're approaching it, where

13 you are already, but it takes tenacity to stick with it.

14 Q. You then go on to give his personal history about which there is

15 no dispute from the Defence. That takes from pages 11 to page 15, then

16 marital status or family. Again, there's no observation or dispute from

17 the Defence. And that takes from page 15 really through to the end of the

18 main body of the report.

19 This is not an easy thing for an interviewer to judge, but did you

20 feel in your assessment and with your expertise that at the conclusion of

21 all of your interviewing of Mr. Nikolic that he had benefited from it in

22 the broadest sense?

23 A. He told me so.

24 Q. Yes. I'm very grateful. Thank you very much, Dr. Grosselfinger.

25 JUDGE SCHOMBURG: May I ask the Prosecution, do you have any

Page 443

1 further questions?

2 MR. YAPA: We have no further questions, Your Honour.


4 Any -- I can't see any questions by the Judges.

5 So finally, it's only a technical question. May I ask, please,

6 the usher to present the report provided by Dr. Grosselfinger to

7 Madam Grosselfinger in order that you please sign at the bottom line of

8 the last page.

9 THE WITNESS: Yesterday I submitted to the Registry a signed paper

10 also, a signed front page. But I'd be happy to give my John Hancock

11 again.

12 JUDGE SCHOMBURG: A signed front page. The signature should be at

13 the end of the report.

14 THE WITNESS: All right.

15 JUDGE SCHOMBURG: In order that it shows -- that it covers all of

16 this.

17 And Madam Registrar was kind enough to compile the different parts

18 including your CV and your addendum you kindly sent to us. So then

19 everything will be covered.

20 The intention is to admit Dr. Grosselfinger's statement, written

21 statement, into evidence. Are there any objections? This is not the

22 case.

23 Hereby admitted into evidence.

24 May I hear what is the document number, J4? Am I correct? Or did

25 we already -- J4. Okay.

Page 444

1 I have to thank you, also you, that you were prepared in this

2 short period of time to do this intensive and exhaustive study, not only

3 here in The Hague but also in the field, which is not that easy, as we all

4 know. But thank you very much. It's, of course, important, as we are a

5 criminal court, that we not only hear about the fate of the victims and

6 what happened as heinous crimes at that time but also to have some access,

7 professional access to the personality of an accused. Thank you for

8 giving us this insight.

9 The witness is excused. May I ask the usher to escort the

10 witness.

11 THE WITNESS: Thank you, Your Honours, for this opportunity.

12 [The witness withdrew]

13 JUDGE SCHOMBURG: When we are just going along the technical

14 questions, may I ask Madam Registrar, what was your final result of the

15 research related to the report of Dr. Zepter [Realtime transcript read in

16 error "Dexter"]? Was it now or was it not admitted into evidence until

17 now? It was still in dispute when you were away.

18 [Trial Chamber and registrar confer]

19 JUDGE SCHOMBURG: So in this case, my recollection indeed

20 insisted -- assisted me, and we discussed it, but unfortunately it's not

21 formally to be read from the transcript that it was formally admitted into

22 evidence. It was not disputed at all, and therefore hereby formally and

23 finally admitted into evidence as a Prosecution exhibit.

24 This brings me to the next point, and this is a question, how to

25 deal with the until now confidential Annex C, that is, of the Prosecutor's

Page 445

1 sentencing brief, a question of the accused's cooperation.

2 Mr. Yapa, please.

3 MR. YAPA: Your Honour, I did not want to interrupt what Your

4 Honour was mentioning.

5 In place of Dr. Zepter's name, the place on the record is

6 Dr. Dexter. That should be corrected.

7 JUDGE SCHOMBURG: Yes. At line -- page 14, indeed you can read

8 "Dr. Dexter," it should be replaced by "Zepter," of course.

9 MR. YAPA: Yes.

10 JUDGE SCHOMBURG: I would have hoped you would give us an answer

11 on how this factual basis on the accused's cooperation --

12 MR. MORRISON: I'm sorry to interrupt, Your Honours. May I

13 suggest that for the moment, because I suspect that matters that fall

14 within the ambit of a confidential annex that we go into private session.

15 JUDGE SCHOMBURG: If the Defence does not want to discuss the

16 accused's cooperation in public, I think the Judges will not insist in

17 doing so; therefore, let's go into private session.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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23 [Open session]

24 JUDGE SCHOMBURG: It is my understanding that the Prosecution

25 tenders Annex C of the sentencing brief, paragraph 5, into -- as evidence

Page 455

1 in this concrete case.

2 Mr. Yapa?

3 MR. YAPA: Yes, Your Honour, that is our application.

4 JUDGE SCHOMBURG: And I need not ask the Defence, because it was a

5 suggestion by the Defence. Therefore, this part is first, the

6 confidentiality of this part is lifted, and C5 of the annex to the

7 Prosecution sentencing brief is admitted into evidence.

8 May I ask Madam Registrar, what is the number of this exhibit?

9 THE REGISTRAR: It will be Exhibit P7, Your Honours, thank you.

10 JUDGE SCHOMBURG: Thank you. Thereby admitted into evidence as

11 P7.

12 Let us now turn to the next question, and it was still open, at

13 least during the discussions in open court. What about the accused? Is

14 the accused prepared to give a statement or is the accused prepared to

15 testify? I want to be absolutely on the safe side before the Defence

16 decides finally on this issue, because maybe I'm wrong, but I got the

17 impression yesterday that the Defence might be under the impression that

18 when the accused would limit the testimony, formal testimony under solemn

19 declaration to certain points only, such as expressing remorse, then no

20 additional questions that are relevant for the determination of an

21 appropriate sentence could be put to him.

22 In the meantime, the Trial Chamber discussed this issue, and it

23 should be clear that also based on authorities, be it now from common law

24 or civil law, that when a witness offers his own testimony as such, then

25 all questions may be put to him relevant for the determination of an

Page 456

1 appropriate sentence. I only want to make this abundantly clear before we

2 hear your final decision on this point.

3 MR. MORRISON: I'm grateful, Your Honour. I've had the

4 opportunity to discuss this issue with my learned friends for the

5 Prosecution, and it was certainly our joint understanding that as far as

6 the Prosecution is concerned, if Mr. Nikolic gave testimony that relates

7 purely to issues of remorse, they would not seek to cross-examine him.

8 And I've confirmed that this morning in direct oral discussions with my

9 learned friend, the Prosecution.

10 I took that stance because that was a matter which I understood

11 that we had between the Defence and Prosecution had already been agreed at

12 a Rule 65 ter meeting, and that's the way I am used to dealing with these

13 matters in my own jurisdiction. I appreciate immediately I am not in my

14 own jurisdiction, but that was a matter of equity and fairness that the

15 Prosecution and the Defence are ad item on.

16 I accept, as a general proposition of law, that if a person elects

17 to give testimony, he may be asked any relevant and admissible question,

18 but that always, of course, is constrained by the issue of overall

19 fairness. This is a hearing not to determine guilt and culpability. He's

20 already pleaded to his guilt and admitted his culpability. This is a

21 hearing designed purely to determine sentence. And I am naturally curious

22 to see where the dividing line between those two issues lies.

23 What I would like to have the opportunity to do, first and

24 foremost, because I am now speaking without instructions, is to have a

25 short adjournment to discuss the position with the defendant. I know it

Page 457

1 has always been his desire to give testimony, but I am bound by, of

2 course, my professional obligations to place certain caveats and to see

3 what his reaction is to those caveats.

4 JUDGE SCHOMBURG: Thank you. I only wanted to have the transcript

5 extremely clear on this point. I checked with the other participants of

6 the last 65 ter meetings, and there was no such agreement. Maybe between

7 the Prosecution and the Defence; however, never with the Bench, that one

8 could proceed this way and limit testimony, formal testimony to the mere

9 question of showing remorse. However, it would be open for a discussion

10 of all relevant points for determining an appropriate sentence. So,

11 therefore, I made this opening remarks in this respect.

12 And I think it's not necessary to preach to the converted of the

13 common-law system when referring, for example, to parts of Brown versus

14 United States of the Supreme Court of the United States that an accused,

15 to quote, "Could not take the stand to testify in her own behalf and also

16 claim the right to be free from cross-examination on matters raised by her

17 own testimony on direct examination." And it's the understanding that the

18 matters raised by testimony on mitigating factors and the factors leading

19 us to an appropriate sentence. And we have to be aware that we are in a

20 hybrid system, to doubt that in a civil-law system whenever an accused has

21 started to give some statements, then of course an accused can't be

22 compelled to give an answer. However, one can draw inference, also

23 inferences to the detriment of an accused, if on certain questions he then

24 starts not to answer concrete questions.

25 I think this sets the framework of a possible testimony of your

Page 458

1 client, and it provides you with the necessary information when you

2 discuss this issue with your client.

3 How long would it take that you can reasonably discuss this issue

4 with your client?

5 MR. MORRISON: Your Honour, the unhelpful answer is "not very

6 long." I'm just looking at the time, and I'm wondering whether or not it

7 might be more sensible for the utilisation of time to take the break that

8 Your Honour, I anticipate, would have taken perhaps at 11.30, to take it

9 now, and I can combine taking instructions with that break.

10 JUDGE SCHOMBURG: We still are under the impression that it is

11 possible to conclude the hearing today if we all try to do our very best

12 on this, and therefore let us limit the break now until 10.30. If you

13 need more time, please let us know through the appropriate channels.

14 [Trial Chamber confers]

15 JUDGE SCHOMBURG: Judge Agius just rightly pointed out that in

16 addition you should know, even though you come to an agreement with the

17 Prosecution, that the Prosecution would not cross-examine Dr. Stakic for

18 whatever reasons -- sorry, sorry, this was a Freudian. My apologies,

19 Mr. Nikolic.

20 If the Prosecution would not cross-examine Mr. Dragan Nikolic,

21 then it under our hybrid rules - and we all know how difficult it is to

22 work under the hybrid rules - we still have Rule 98, where it is, and

23 other rules allowing the Judges to put questions to the accused, and this

24 will occur in all likelihood. Only that we are also clear on this point.

25 Thank you. The Trial Chamber stays adjourned until 10.30.

Page 459

1 --- Recess taken at 10.17 a.m.

2 --- On resuming at 10.34 a.m.

3 JUDGE SCHOMBURG: Please be seated.

4 Mr. Morrison.

5 MR. MORRISON: Your Honour, I'm grateful for the opportunity to

6 take further instructions in this matter. And as a result of the

7 instructions I received, but more particularly the advice that I felt

8 compelled to tender, I can now inform the Court that the accused will be

9 making a statement at the conclusion of all other matters in this case, to

10 deal with certain issues but not be giving testimony.

11 The -- it remains, however, that counsel, particularly myself,

12 will be only too grateful to assist the Trial Chamber in any matter that

13 we are able to assist in the event of further observations or questions

14 from the Bench in respect of matters that are within the ambit of the

15 Defence's knowledge that I am entitled to explain to the Court without

16 breaching legal, professional privilege.

17 JUDGE SCHOMBURG: Thank you for this clarification.

18 Then I think the part on additional evidence, leading us to an

19 appropriate sentence is concluded, but I will, of course, give both

20 parties the chance to tell me if this should not be the case and if one of

21 the parties wants to tender additional documents, exhibits, and so on.

22 The Prosecution, please.

23 [Prosecution counsel confer]

24 MR. YAPA: I wish to mention one matter, Your Honour. The

25 documents that we will be tendering, the transcripts, will be -- of the

Page 460

1 interviews with Mr. Nikolic, as was required in the former submissions,

2 will be tendered in the course of the day.

3 JUDGE SCHOMBURG: Thank you. If it could be done in a way that

4 one of your counsel would come to my office, that in case there might be

5 any question that helps us to find exactly the concrete questions we have

6 to these documents.

7 For the Defence, anything else to be tendered?

8 MR. MORRISON: Well, as we know, both parties have until November

9 the 24th to tender any further submissions in writing in respect of the

10 matters contained in the report of Professor Sieber and indeed the

11 testimony given by Professor Sieber. I cannot yet state that advantage

12 will be taken of that opportunity, but it's likely that it will be.

13 JUDGE SCHOMBURG: Thank you. This opportunity was already granted

14 yesterday.

15 I only wanted now finally to clarify the following: We have

16 admitted into evidence the Sieber report in its form of yesterday;

17 however, he told us that he will present a compiled version next Tuesday.

18 I anticipate that this will be admitted into evidence, if there's no

19 objection, under the same number, only with the addition of "/1", and this

20 will then replace the former CD-ROM.

21 As regards the country reports, we were in a situation that the

22 reports, due to the short time available for this expert, were only

23 provided in a language that is not an official language of this Tribunal.

24 We would try our very best to have translated the main parts of those

25 German country reports that were discussed during yesterday's hearing, and

Page 461

1 I take it that there is no objection that these translations then would be

2 filed under the same document number, only with the addition of "/2". Are

3 there any objections to this? Because I think it's not necessary to

4 reopen the case just for this purpose of admitting this translations.

5 MR. YAPA: We have no objections, Your Honour.

6 MR. MORRISON: Your Honour, no objections. And I point out that

7 in respect of the full German texts, although, of course, it's not one of

8 the official languages of the Tribunal, my co-counsel is virtually

9 mother-tongue fluent in German and can assist in the translation of those

10 parts which are otherwise not translated.

11 JUDGE SCHOMBURG: Thank you for this kind assistance.

12 Then we may come immediately to the closing arguments. We have to

13 take into account several interests, first and foremost, the interest of

14 the interpreters, because they had only a break of 15 minutes until now.

15 I take it that the Prosecution would need about 60 minutes for the

16 closing arguments.

17 What about the time needed by the Defence? Because we just

18 discussed this issue. We want to avoid that on one day the submissions

19 are given by one party only and on the next day by the other. So

20 therefore, can you tell us how long it will take.

21 MR. MORRISON: Your Honour, I can tell you how long I intend to

22 take, and I hope that I am accurate. But as Your Honour knows, one thing

23 which is notoriously unreliable are counsel's estimate of time.

24 If I may simply say, when I sit as a judge in England, I always

25 say to the jury, "When counsel asks me for a five-minute break that five

Page 462

1 minutes is a legal term that means half an hour." But we will finish

2 today; of that I have no doubt.

3 JUDGE SCHOMBURG: May I ask the interpreters in this informal way,

4 do you agree that we hear now the final arguments by the Prosecution for

5 the next 60 minutes and then have a break of half an hour? Would this be

6 convenient for you?

7 THE INTERPRETER: Yes, say the interpreters.

8 JUDGE SCHOMBURG: I see nodding. Thank you very much for your

9 assistance.

10 And may I then ask the Prosecution, please take the floor and give

11 us your observations.

12 MR. YAPA: I'm sorry, Your Honour, I'm looking for the podium.

13 It's not available. I thought it was under the table, but it's not. It

14 should be on the table. Thank you.

15 I thank Your Honours. May it please Your Honours. The stage has

16 come for us to make the closing submissions in this hearing, which is

17 termed the sentencing hearing. As Your Honours will be pleased to

18 remember, that it is in consequence of a plea of guilt that was tendered

19 by the accused that Your Honours decided to have the sentencing hearing.

20 The sentencing hearing, if I may submit, takes a different form in

21 this case. I don't say "a different form," but it has certain special

22 features, and then maybe unique features as well. This may be the first

23 time in the Tribunal that a sentencing expert report was called for, and

24 I'm happy to know that it was a substantive report and there were certain

25 drawbacks in the sense because of the constraints, time constraints and

Page 463

1 other factors, the learned professor was not able to submit a complete

2 report, but hopefully that report will come before the 24th of November

3 when we will be able to make submissions or any observations on that

4 report.

5 My purpose at this stage is to make submissions on the hearing

6 that was conducted so far. Your Honours will be pleased to remember, or I

7 wish to draw Your Honours' attention to the sentencing brief that was

8 submitted by the Prosecution, wherein we attempted to include all

9 necessary material and necessary submissions and, from the point of view

10 of the law, what should be stated in a sentencing brief. But be that as

11 it may, it may require me to refer to some of the legal provisions which

12 were repeated in the sentencing brief at the stage of my oral submissions.

13 It is only for the purpose of getting assistance to make my submissions

14 that I'll be repeating those legal provisions.

15 If I may go a little bit into the history of the authority granted

16 to Judges to pass sentence on convicted persons. I will wish to refer

17 specifically to international criminal law, the rules of law which demand

18 a standard of conduct from individuals provided for in international

19 criminal law today. The principle of individual responsibility is well

20 recognised in such law. When a standard of conduct established by the

21 rules of law is violated, provision is made in such law for the punishment

22 of such violations. It is not my intention at this stage to repeat all

23 that we have said in our sentencing brief; however, I submit that as a

24 starting point, it is relevant and in order to make reference to the

25 applicable law.

Page 464

1 Article 24 of the -- of the Statute of the Tribunal makes

2 reference to the penalty that could be imposed on a convicted person. If

3 I may read out that portion that is relevant to these proceedings, Article

4 24 of the Statute: "The penalty imposed by the Trial Chamber shall be

5 limited to imprisonment. In determining the terms of imprisonment the

6 Trial Chamber shall have recourse to the general practice regarding prison

7 sentences in the course of the former Yugoslavia."

8 Then secondly, it, in imposing the sentence, says "the Trial

9 Chamber should take into account such factors" -- it is not exhaustive,

10 but it says "such factors" -- "as the gravity of the offence and the

11 individual circumstances of the convicted person."

12 There is a third one which is not so relevant. There are other

13 provisions that are applicable which are contained in the Rules of

14 Procedure and Evidence. I will at this stage refer to those as well.

15 These have been repeated in the sentencing brief, in our sentencing brief,

16 and the sentencing brief of my learned friend.

17 Sentencing procedure on a guilty plea, which is Rule 100: "If the

18 Trial Chamber convict the accused on a guilty plea, the Prosecutor and the

19 Defence may submit any relevant information that may assist the Trial

20 Chamber in determining an appropriate sentence," which to some extent we

21 have done, and now at this stage we are making the submissions on the

22 material that is available.

23 Then Rule 101: "A convicted person may be sentenced to

24 imprisonment for a term up to and including the remainder of the convicted

25 person's life." Then comes the factors that is could be taken into

Page 465

1 account in making a determination of the appropriate sentence.

2 "In determining the sentence, the Trial Chamber shall take into

3 account the factors mentioned in Article 24," - which I read out a little

4 while ago - "paragraph 4 of the Statute, as well as such factors as any

5 aggravating circumstances, any mitigating circumstances, including

6 substantial cooperation with the Prosecutor by the convicted person before

7 or after conviction.

8 "The general practice regarding prison sentences in the courts of

9 the former Yugoslavia" - that's the third one. The fourth would not be so

10 relevant at this stage. It is valid. "The extent to which any penalty

11 imposed by a court of any state on the convicted person for the same act

12 has already been served as referred to in Article 10, paragraph 3 of the

13 Statute of the Tribunal." Then in respect of credit that could be granted

14 to the accused in respect of the sentence.

15 Now, in respect of these provisions, Your Honours are aware that

16 reference has been made to all these provisions that I read out in

17 practically all cases concluded in the Tribunal, let it be in the final

18 judgements after trial or after a plea of guilty and in the judgements of

19 the Appeals Chamber, in the case of appeals after conviction.

20 Although today, there is always attempt to explore the guidelines

21 available in the determination of an appropriate sentence in a given case.

22 In the early days of the development of international criminal law, a

23 provision available was that the imposing authority, that is, the Judge of

24 the Tribunal, shall have the right to impose upon a defendant on

25 conviction that or such other punishment as shall be determined by it to

Page 466

1 be just. Consequently, the only guidance was that the punishment should be

2 just. It would be seen that the margin of discretion for the Judges was

3 very wide.

4 The provisions contained in the Statute of the Tribunals -- when I

5 say "the Tribunals," I take into account the ICTR as well; the provision

6 there is article 23 of that Statute -- those provisions are comparatively

7 in more detail. In brief, these criteria include the gravity of the

8 offence, the individual circumstances of the convicted person.

9 The Rules provide that the Trial Chamber shall take into account,

10 in addition to the factors mentioned in Article 24, factors such as

11 aggravating circumstances, mitigating circumstances including substantial

12 cooperation with the Prosecutor by the convicted person before or after,

13 and the general practice regarding prison sentences in the courts of the

14 former Yugoslavia.

15 The guideline relating to the last factor, that is the general

16 practice regarding prison sentences in the courts of the former

17 Yugoslavia, has been interpreted in the cases in the Tribunal as guiding

18 but not binding.

19 As submitted in the sentencing brief of the Prosecution, the Trial

20 Chambers and the Appeals Chamber have repeatedly held that the gravity of

21 the offence is the primary considering in imposing sentence. In the case

22 of Aleksovski, the Appeals Chamber held that the gravity of the offence is

23 the result of combined analysis of the circumstances of the case and the

24 form and degree of the accused's participation in the crime. This is

25 referred to in paragraph 182 of the judgement -- of that judgement.

Page 467












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Page 468

1 The offences to which the plea of guilt in this case was tendered

2 and accepted fall within crimes against humanity.

3 At this stage, I propose to indicate to Your Honours, in line with

4 the observation that has been made, and also in line with the submissions

5 that we have made in the sentencing brief, the aggravating material

6 available in the proceedings so far.

7 If Your Honours will bear with me. My papers have got mixed up.

8 [Prosecution counsel confer]

9 MR. YAPA: I thank Your Honours.

10 The aggravating circumstances that Your Honours will take note of,

11 that we present as aggravating circumstances in the case: Firstly, the

12 impact on the victims. Injuries received as a result of beatings, impact

13 of lost children, relatives, and uncertainty, exacerbated suffering of

14 victims, detainees of the camp. That is one factor that has come out in

15 the proceedings held so far.

16 Secondly, seeing fellow detainees being tortured, killed,

17 especially detainees who were known to each other by relations or

18 community. These matters are highlighted in the impact statements that we

19 have filed before Your Honours.

20 Female detainees who were raped, felt disgusted by what had

21 happened. Some find that they cannot lead a normal life or fulfil their

22 roles as mothers or wives as a result of their ordeals at the camp.

23 Relationships of family members have been affected.

24 Now, Mr. Nikolic has admitted that he was a commander of the camp,

25 of the Susica camp. But this, also we take it as an aggravating factor in

Page 469

1 relation to the offences that were committed or that have been admitted by

2 the accused, by Mr. Nikolic. It is in evidence that Mr. Nikolic would

3 restrict the movements of the detainees by ordering them around and

4 allowing them to move only when he told them to do so. He would make

5 detainees carry out degrading physical acts, such as washing his feet. He

6 would order women to clean houses, dishes, and work at the camp site.

7 Some of these women later went missing from the camp. He alone as a

8 commander ordered victims of beatings -- victims of beatings to be buried,

9 and he further ordered undertaker's vehicles to be present. His authority

10 is seen there.

11 It is in evidence before Your Honours that he was seen in the camp

12 more often than the other guards. He would control which guards were on

13 assignment at the camp. He's the one who issued orders. He was present

14 in the camp practically every day, most of the time, including both

15 afternoons and evenings. At night-time, he would sleep at the guardhouse,

16 where he was accommodated, and at times he would come to the camp at

17 midnight. It was in evidence that he would come in the night quite

18 regularly into the hangar.

19 Then there were the victims. They were all civilians, including

20 children and women. They were not volunteers to come into the camp. They

21 were forced into the camp. But they were taken to the camp against their

22 will and they were given the hope that they would be exchanged in time.

23 This was the evidence that was available from (redacted), when he

24 came in he was given the information that they were to be exchanged, but

25 he continued to stay there for one month.

Page 470

1 The camp was from the time of its inception full. We have that

2 evidence from (redacted) -- I'm sorry, from one of the witnesses

3 that prisoners were being taken into the camp regularly, and they were

4 being shifted, they were being brought in, and the camp was full.

5 Young women were taken out of the camp and returned. They were

6 taken out in the night, and then they were brought back in the morning.

7 [Trial Chamber confers]

8 JUDGE SCHOMBURG: I will ask Madam Registrar, please to redact the

9 aforementioned name from the transcript. Thank you.

10 MR. YAPA: I thank Your Honour.

11 It was in evidence that women were taken in the evenings, in the

12 night, and they were brought back in the morning. And they appeared to be

13 distressed. They were distraught. In other words, indicating that they

14 had been subjected to a kind of assault.

15 It is also in evidence that Dragan Nikolic would personally take

16 out women and hand them over to guards and bring them back himself, and he

17 used to repeat that kind of behaviour.

18 In respect of food, the detainees were provided only food once a

19 day, but we have in evidence that when they were brought in, they were not

20 provided with any food and they had to spend long hours without any food.

21 And the food that was provided was of very low quality. The detainees did

22 not have any medical care. They were not provided with any medical care;

23 the victims as well. Hygienic conditions in the hangar where the

24 detainees were kept was extremely poor. There was people who were falling

25 ill and there was a foul stench in the camp, in the hangar.

Page 471

1 He was armed all the time, and he came -- there is an instance

2 which is in evidence that he came in to the hangar and used his firearm,

3 and the people had to -- the detainees in the hangar had to keep their

4 heads down, but he shot all round.

5 JUDGE SCHOMBURG: Madam Registrar, I think the name was mentioned

6 twice.

7 [Trial Chamber and registrar confer]

8 JUDGE SCHOMBURG: Please continue.

9 MR. YAPA: Yes, Your Honour.

10 It appears that Dragan Nikolic took pleasure in terrifying the

11 detainees in the camp. In addition to Nikolic, guards were well armed at

12 all times. He had a guard dog with him, and the guard dog was, true to

13 its name, a guard dog, a trained guard dog.

14 A further aggravating factor that I would like to mention is the

15 depravity of the crimes. It is in evidence that, in addition to the

16 admission, that he beat a number of male detainees. In one instance, we

17 have an serious incident -- an extremely incident where the eye of a

18 detainee was knocked out as a result of the assault and he was brought

19 into the hangar. He had no place to sleep. He was thrown onto the wet

20 floor. He was not given any food. Nikolic prevented food being served to

21 him. It is in evidence that he repeatedly beat detainees to such an

22 extent that those detainees who were subjected to the assaults were not

23 able to sit up, they were not able to stand, they were in a desperate

24 situation.

25 Detainees were taken out of the hangar, they were beaten, and

Page 472

1 brought back into the hangar after the beatings. And the other detainees

2 saw that the -- the victims of assault were -- had been subjected to

3 inhumane treatment by way of causing very serious injury of them.

4 There is evidence that Dragan Nikolic prevented personally food

5 being served to the detainees. Sometimes when, as a result of the beating

6 a detainee lost consciousness, water -- it is in evidence that was water

7 was poured on the detainees, they revived and further assaults took place.

8 It is in evidence that he did not accede to the requests made by the

9 detainee, maybe for food, maybe for any other kind of assistance; it was

10 not provided by -- by Nikolic. It was also in evidence that his own

11 brother pleaded with him to stop the beatings, but he did not accede to

12 that request. He continued to mistreat the detainees.

13 One other factor, important factor, is that many of the victims in

14 the hangar or in the camp were known to the -- to Mr. Nikolic. They were

15 known to him. And he made it a point to say that that affinity or that

16 relationship that he had did not matter in any way.

17 These are the aggravating circumstances that have been highlighted

18 in the -- in the proceedings, but Your Honours will be pleased to see on

19 the admitted facts in the indictment, all the facts that were admitted,

20 the depravity or the -- the serious nature or the aggravating factors are

21 more in the open than that was stated in the -- in the proceedings here,

22 because all the witnesses were not testifying. Some of the witnesses

23 only -- impact witnesses statements are available, two or three witnesses

24 were presented by the -- by the Prosecution. But the facts that were

25 admitted to by the -- by Mr. Nikolic also have to be taken into account.

Page 473

1 In the -- in the Rule that I read out, which is 101, there is the

2 reference to mitigating factors, that is, Rule 101, and my learned

3 friend -- or the Defence has referred to many of those factors as

4 mitigating factors for their benefit. What are these factors that have

5 been referred to? If I may take something that happened before Your

6 Honours; the Defence called two witnesses, two witnesses to speak to the

7 character of Mr. Dragan Nikolic, more to do with the previous character of

8 Mr. Nikolic, that he was a well-behaved person, that he was -- that he was

9 very, very friendly, and that the witnesses could not believe that he

10 could have committed these offences alleged against him; in other words,

11 to say that he had no propensity to violence previously. In my

12 submission, so far as the events, the incidents referred to in the

13 indictment, that evidence is of not great value.

14 We have not -- there is another aspect that has to be considered,

15 but we have not yet heard any expression of remorse. There is this aspect

16 that Dr. Grosselfinger has testified before Your Honours to say that at

17 the interviews, Mr. Nikolic was concerned in expressing his remorseness,

18 his guilty feeling, his desire to tender an apology. They were stated.

19 But it is my submission that, of course, it is -- it is a report that has

20 been presented to Your Honours, that it will be important for Mr. Nikolic

21 himself to state that before Your Honours.

22 The fact of the guilty plea is also taken into account as -- as a

23 mitigating factor. The Prosecution concedes that the accused pleaded

24 guilty, I should say not at the very first opportunity available, but he

25 pleaded guilty without going to trial. There were other developments that

Page 474

1 took place in the case previously, but it is in evidence that he was aware

2 of an indictment against him even when he was in Belgrade, he was aware of

3 an indictment against him. We see from that stage, at least two to three

4 years later, that he had entered a plea of guilty. It is to the -- it can

5 be taken as a mitigating factor, but Your Honours know in respect of a

6 plea of guilt what is of most importance is that the plea of guilt is

7 tendered at the first available opportunity. We do not see that quality

8 in this plea. The fact that he pleaded guilty without going to trial is

9 to his advantage; that I should say.

10 With respect of his personal circumstances that is adverted to in

11 the Rule, it is my submission that there is -- had anything that we could

12 say, he was in Vlasenica; he had gainful employment; he was recruited to

13 be employed in the Susica camp; and thereafter, and of course, he was not

14 a married person. But those do not go in his favour as personal

15 circumstances that should be taken into consideration, as a mitigating

16 factor.

17 There are certain other matters that have been referred to by my

18 learned friend in the sentencing brief, as regards his age, present age,

19 as to how old he would be if he was to be incarcerated for a longer

20 period. In the Prosecution's submission, that factor -- there is nothing

21 significant shown that that factor should accrue to his advantage. He's

22 not an old person as such. He was young at the time that he committed the

23 offences, and he still is a mature adult.

24 My learned friend, in his inimitable way or style, makes reference

25 to the indictment in this case having had a convoluted history. I may not

Page 475

1 want to enter into polemics on that score, but the indictment itself, this

2 indictment itself, which is before Your Honours, is a refined indictment.

3 No doubt at the commencement it had 80-odd counts, but after due

4 consideration by the Prosecution it was brought down to 8 counts and

5 subsequently to 4 counts. It is my submission that that was a process of

6 refinement of the indictment and that has accrued to the benefit of the

7 Defence, of the Prosecution, and with great respect, I should say to Your

8 Honours as well.

9 I have to make reference to the plea agreement that was entered

10 into. Your Honours know that although there is the provision which states

11 quite clearly that Your Honours are not bound by a plea agreement, but a

12 plea agreement is referred to in the Rules. And also, there is reference

13 to the recommendation of a sentence, and also it is stated that Your

14 Honours are not bound by a recommendation, which is very clearly

15 understood by all parties, that the matter of sentencing is entirely a

16 matter for Your Honours, in your discretion. But it is of importance that

17 in this case that there was a plea agreement between the parties, and that

18 in terms of the plea agreement, a plea of guilt was entered into by

19 Mr. Nikolic.

20 As to the conditions or the terms in the plea agreement, I have

21 mentioned previously as well that there was some condition attached to the

22 recommendation that was made by the Prosecution. This has been already

23 adverted to before Your Honours and that is a significant factor I should

24 submit, a very significant factor. And when the necessary material is

25 placed before Your Honours, Your Honours will be in a position to decide

Page 476

1 whether the statement made by the Prosecution in respect of the

2 cooperation that is offered by Mr. Nikolic is substantial or not.

3 Taking into account the aggravating circumstances, the mitigating

4 circumstances as we understand, as available in the proceedings, and the

5 fact of cooperation, we have recommended a term of 15 years that should be

6 imposed on the accused. Now, this is what is in the plea agreement, and

7 today in my submissions I wish to submit to Your Honours that we stand by

8 that recommendation.

9 Those would be my submissions. I thank Your Honours.

10 Questioned by the Court:

11 JUDGE SCHOMBURG: May I take the opportunity to ask you two

12 questions on the merits and one legal question; the first would go to the

13 point was there any cooperation between the Prosecution and Mr. Nikolic

14 before the plea agreement.

15 MR. YAPA: If Your Honours please, I will term it as a cordial

16 relationship that we had, but I would not be able to term it as

17 cooperation." There was cordial relations; we were not an antagonistic,

18 we were not contentious. But it is not possible for me to make a

19 submission that there was cooperation.

20 JUDGE SCHOMBURG: The second question would be: Would it be

21 correct to state that the final guilty plea and arrangement was made at a

22 point in time when already witnesses were called to The Hague and actually

23 were in The Hague in order to take depositions scheduled for this time?

24 MR. YAPA: [Microphone not activated]

25 JUDGE SCHOMBURG: And then if we turn to the legal question. We

Page 477

1 have before us four counts. And as we discussed in a 65 ter meeting

2 already, there are problems emanating from the jurisprudence of this

3 Tribunal. On the one-hand side, Judge, in the charges you have Count 1,

4 persecutions, where it is alleged, and Mr. Nikolic admitted to have

5 committed these crimes, that he persecuted Muslim and non-Serb detainees

6 at the Susica camp by subjecting them to murders, rapes, and tortures.

7 And torture.

8 The other points and the other acts that are in the view of the

9 Prosecution seen as acts of persecutions are not interesting in the

10 moment; however, we would come to a solution that we would come to a

11 cumulative conviction on persecution committed by these several acts of

12 murder, persecutions committed by several acts of torture, persecution

13 committed by, as it reads in the indictment, "aiding and abetting in

14 sexual violence"; this would be Count 3.

15 The question is: Would the Prosecution agree that following the

16 jurisprudence of this Tribunal the adequate solution would be that the

17 persecutions and the Counts 2, 3, and 4 would be included in only one

18 conviction and then sentence related to persecutions where the

19 persecutions are included, however, with the additional elements of crime

20 that is the discriminatory intent? Would you agree with this conclusion?

21 MR. YAPA: Your Honour, I could state where I answer Your

22 Honours's question, but I may I go back to the submissions that I made in

23 respect of the plea agreement and my final submission on recommended

24 sentence? We have -- the Prosecution has recommended a term of 15 years,

25 as it is termed as a global sentence or a compact sentence. We have taken

Page 478

1 into account the offences that the accused has pleaded guilty to, but the

2 recommendation is not for the individual counts but as a compound sentence

3 that could be imposed.

4 In respect of the count of persecution, it may be sometimes that

5 inclusion of murder, sexual violence, and others which are separately

6 charged in the indictment may be technically wrong, but however, there is

7 disposition in the count of persecutions. There are other matters that

8 are referred to, like forcible transfer, detention, atmosphere of terror.

9 They are not accounted for as separate offences or separate charges. So

10 if Your Honours are of a mind to omit murder and the other offences that

11 are charged in the other counts, still the count of persecutions remains.

12 And if Your Honours will be pleased to listen to my submission, that is

13 that persecution by itself is a distinct offence, so we have selected as a

14 distinct offence, as distinct from murder, from rape or sexual violence,

15 and torture. So if the other factors are included, are taken into

16 account, like forcible transfer, detention, and atmosphere of terror, he

17 could be found guilty of persecution independently of the finding of guilt

18 in respect of the other counts.

19 JUDGE SCHOMBURG: I think we came already to the conclusion that

20 those other alleged conducts as, yeah, also in the jurisprudence of this

21 Tribunal, are seen as acts of persecution. You mentioned this before. An

22 atmosphere of terror created by the murders, beatings, sexual violence,

23 and other physical and mental abuse of detainees, forcible transfer, in

24 whatever or whatever term you would use for this. I think this is

25 undisputed. The only question that remains is: Is it possible to convict

Page 479

1 a person twice for murder, separately for the several acts of murder on

2 the one-hand side, for example, and then in addition to this cumulatively

3 as an act of persecution? This is the only question.

4 MR. YAPA: I understand, Your Honour. That is why I made the

5 submission that it is in Your Honours' power to hold that Your Honours

6 will not find him guilty on the basis on the count of murder on the basis

7 of his having committed murder. So it will be persecution on account of

8 other factors that are available in that count, because -- the reasoning

9 behind it would be that Your Honours will be finding him guilty of murder

10 separately in a separate count. So that would not be regular; it is my

11 submission that it would not be regular.

12 In any event, that is why I fall back on the submission of our

13 recommended sentence. We do not recommend that he be given 15 years for

14 each count. Our recommendation is that he be sentenced to 15 years.

15 JUDGE SCHOMBURG: Thank you.

16 May I ask my colleagues, do you have any additional questions?

17 [Trial Chamber confers]

18 JUDGE SCHOMBURG: Judge Agius, please.

19 JUDGE AGIUS: Good morning, Mr. Yapa. I wonder if you have any

20 submissions to make on two aspects that come to my mind which -- one fits

21 in according to myself in the whole purpose of punishment; and the second

22 fits in the raison d'etre of this Tribunal, or a part of it. The first

23 one is the reform of the accused as one of the aims that punishment should

24 aim -- should aspire. The second one is reconciliation, restoration of

25 peace, and reconciliation in the territory of the ex-Yugoslavia. Can I

Page 480

1 take it that you have already given some consideration to these two

2 aspects and that either or both of them form part of the basis for your

3 recommendation to this Tribunal? Thank you.

4 MR. YAPA: I thank Your Honour for those two questions. These are

5 matters that we have, in fact, taken into consideration. In any event,

6 may I make the submission, reconciliation is a factor that has to be taken

7 into account, in terms of the Statute, in terms of the resolutions. That

8 is a major factor that has to be taken into account. So that has been

9 taken into account.

10 In respect of reform, that is, of course, something that is

11 personal to the accused. In the way that the plea has been tendered and

12 others have been mentioned -- other factors have been mentioned, I think

13 that is a fact that has to be taken into account. We -- we on our part,

14 before the recommendation was made, we took that into account.

15 JUDGE SCHOMBURG: There are no further questions. Then I have to

16 thank you, Mr. Yapa, for your submissions made on behalf of the

17 International Community.

18 The trial stays adjourned until 12.00.

19 --- Recess taken at 11.33 a.m.

20 --- On resuming at 12.04 p.m.

21 JUDGE SCHOMBURG: Please be seated.

22 And we would like to hear now the final submissions by the

23 Defence.

24 MR. YAPA: With Your Honours' permission, I'm sorry to interrupt

25 the proceedings in this way. In respect of the transcripts that we

Page 481

1 undertook to submit to Your Honours, they are available. Can I hand them

2 over at this stage? Proceedings of two days -- the interview notes of two

3 days. They're available here. That's the 25th of September, 2003, and

4 the 26th of September, 2003. The contents would illustrate the type of

5 cooperation that the accused offered. In all, it was interviews that were

6 conducted for a period of ten days, but these refer to the two days where

7 the specific answer is available.

8 JUDGE SCHOMBURG: May I ask if the Defence aware of those parts

9 given now to the Judges?

10 MR. MORRISON: I have just this moment been handed copies of them.

11 I simply haven't obviously had time to do than to count the number of

12 pages. But my learned co-counsel was present throughout the interview, so

13 there is no difficulty there.

14 JUDGE SCHOMBURG: Thank you.

15 I take it that, of course, these documents are confidential, even

16 though they are not yet marked "confidential"?

17 MR. YAPA: Yes, Your Honour.

18 JUDGE SCHOMBURG: Thank you. I don't hope that there are any

19 other issues at stake for the moment.

20 So once again, I give the floor to the Defence. Please,

21 Mr. Morrison.

22 MR. MORRISON: I don't know whether any of the Bench has had the

23 advantage of reading the book by Faulkner, "The Bridge of San Luis Rey".

24 That book concerns a Franciscan friar, a holy man, a religious man, who

25 one day in the 16th century is present in Peru by the bridge over the

Page 482

1 river, the San Luis Rey. That bridge was a raffia rope bridge that

2 spanned a very wide chasm and an extremely deep chasm. And whilst the

3 friar was sitting in contemplation on a nearby hillside observing some

4 people crossing the rope bridge, it broke and a number of people were

5 participated into the chasm and, of course, died as a result of their

6 fall.

7 The friar was much struck by this and took the view that God

8 placed him there that day in order to observe this and try and resolve the

9 mystery of what brought all those people together in that place at that

10 time so that they should die as a result of that accident. And the rest

11 of the book is an interweaving of the stories of the individual people,

12 until they all come to the same place at the same time on the bridge of

13 the San Luis Rey. And it is a powerful reminder of how you can be,

14 through no fault of your own, sometimes in the wrong place at the wrong

15 time.

16 I think it's worth also recording that the -- the friar wrote his

17 findings in a book which so upset the religious authorities in Peru at the

18 time that they tried and convicted him for heresy and burnt him at the

19 stake. All I say is don't shoot the messenger, in this case.

20 I'm not going to go through the Defence sentencing brief in great

21 detail, but I am going to refer to parts of it, and I'm going to start by

22 reading the first paragraph into the record of my closing speech. It's

23 this: "it's neither the object of this brief nor the duty of defending

24 counsel to seek to persuade any Court or Tribunal to pass the sentence

25 that in all the circumstances of the case would be unduly lenient. It is,

Page 483

1 however, the duty of the Defence, the Prosecutor, and the Court combined

2 together as being concerned with the administration of justice to ensure

3 that any sentence fulfils all of the objectives of fair and equitable

4 jurisprudence and reflects not only the broad aspirations of those three

5 entities to meet those obligations but also upholds the primacy of

6 humanitarian principles." And that's peculiarly apt, in my respectful

7 submission, to this Tribunal.

8 All courts are concerned, whether they like it or not, with some

9 degree of social engineering. Much of it gets lost in the day-to-day

10 business of the court. People simply see courts as places where people go

11 to be tried for offences and either acquitted or convicted, and should

12 they be convicted, thereafter to be sentenced. But even in the smallest

13 of national courts, in the least important of national tribunals, in terms

14 of their jurisdiction, what they are in fact is part of the fabric of

15 society, part of the constitution, part of the raison d'etre of how we all

16 come to live in communities, and this Tribunal is not only no exception

17 but it's a particular and vivid example because the whole concept of the

18 ad hoc tribunals, both this Tribunal and its sister in Arusha, is to do

19 what it can to ameliorate dreadful things that happen, and there's no

20 gainsaying that in both circumstances, in both countries, in both Rwanda

21 and the former Yugoslavia, dreadful things happened. And this defendant

22 has pleaded guilty to participating in what were, on any analysis,

23 dreadful things.

24 You cannot mitigate easily dreadful things. However you look at

25 them, from whatever angle you look at them, whatever light is cast upon

Page 484

1 them, they remain dreadful things, and so the best that anyone can do in

2 mitigating a case is to say, "What has the defendant done to ease that

3 burden of dreadfulness?" And there are three essential features that go

4 to the heart of that in this case: The first is his plea of guilty; the

5 second is remorse; and the third is his intention to assist in the

6 broadest sense in reconciliation, and by "reconciliation" I mean not only

7 reconciliation in a practical sense, as was alluded to in the report of

8 Dr. Grosselfinger, but reconciliation in the sense that is contained in

9 the final paragraph of Annex C to the Prosecution brief. That's all part

10 of the process. Indeed, all three of those, in reality, are interlinked;

11 they are all part of the process.

12 Before the war, Dragan Nikolic was an ordinary man leading an

13 ordinary life, never got into trouble with the law, had the normal range

14 of social activities, was, it seems, well liked, was a friendly person,

15 and in Vlasenica, which was predominantly Muslim, in terms of the numbers

16 of people living there, his friends were drawn from both sides of the

17 community.

18 If we could draw a line down there before his and the victims and,

19 indeed, the participants in this trial start to cross the bridge of the

20 San Luis Rey, then there would have been nothing remarkable about that

21 story. One might have thought that he would have gone on perhaps to

22 marry, perhaps to have children, working continuously at the Alpro

23 factory, watching his family grow up, eventually retiring and dying in the

24 same community, leaving further generations. But the -- the bridge

25 snapped, and the world was never the same again. And it cannot be

Page 485

1 remotely thought that he is responsible for causing the bridge to snap,

2 because people far higher up the chain of command, people who had far more

3 to do with the policies of government are responsible for that.

4 But what he did, like the people on that bridge, he found himself

5 effectively in the wrong place at the wrong time, and he can now not

6 understand what it was that caused him to commit those horrid acts.

7 Nobody can. The best that one can say is this, that there are examples

8 throughout history where ordinary people are put into extraordinary

9 situations. If they're not trained for it and they're not mature enough

10 to cope with it and they have a dark side to their character, that's when

11 the dark side of the character is going to come out, and it came out in

12 Dragan Nikolic.

13 The likelihood is, on the evidence as a whole, that we're looking

14 at a graph of behaviour which is a pretty much level line until the war.

15 The graph then dips into the offending, and that dreadful behaviour, and

16 then slowly, not instantly, the graph works its way at a 45-degree angle

17 pretty much back to the level. That's a process which has taken Dragan

18 Nikolic 11 years. There's nothing magic about the amount of time that

19 takes. What matters is that it does happen.

20 And here I come to the guilty plea. Inherent in any plea of

21 guilty, in this case or any other case, are a number of elements:

22 Honesty, self-awareness, and therefore personal rehabilitation, because

23 until one faces up to the fact that you've done wrong and confesses it,

24 you can't say you've reached the stage of personal rehabilitation.

25 Responsibility for actions, not just for himself but, therefore,

Page 486

1 responsible for the distress of those affected; acceptance of the

2 inevitability and the need for punishment; remorse in the narrow sense of

3 admission of personal fault; but above all, an essential prerequisite for

4 the fuller remorse that he feels and has tried to put into effect through

5 this process of cooperative reconciliation.

6 In the context of what happened in 1992, the plea of guilty also

7 allows for the vital, indeed essential, element of reconciliation between

8 the Muslim and Serb community. And it's compatible with the aims of the

9 UN Security Council in creating the philosophical and practical mandate

10 for this Tribunal, and we know that's been given determinate status not

11 only in the Rules and acts of this Tribunal but mention in a number of

12 cases. It is a vital importance.

13 Finding people guilty who obdurately refuse to accept it is of

14 extraordinarily limited potential for reconciliation. It means you are

15 able to punish those people, but that's pretty much where it stops.

16 Victims may get some satisfaction out of seeing people punished, but it

17 doesn't go very much further than that. What is essential really in any

18 court or tribunal is that the conditions are established where people

19 plead guilty, where they are confronted with the evidence, where they are

20 confronted with their own actions, and they have, albeit after a passage

21 of time, the inherent integrity to meet up to their faults and their

22 responsibilities.

23 While I'm on that topic of time, the submission is this: We know

24 in this case that Dragan Nikolic was in the Detention Centre for something

25 like three years before finally this case was dealt with by a plea of

Page 487

1 guilty. A very large passage of time was taken up with the essential

2 consideration of the question of male captus. We all know how long that

3 took and the convoluted steps. It's not a question of saying there's any

4 fault in that; that's just -- that's just a matter of history.

5 That having been done, it is known to the parties in this case, to

6 the Prosecution and the Defence, that about 12 months ago it became

7 obvious that there was likely to be a plea of guilty in this case, but it

8 wasn't an easy road. I ask Your Honours to remember - I'm not sure if all

9 three of the Judges present were at the meeting, the Rule 65 ter meeting

10 on the 2nd of September of this year - but I know His Honour Judge

11 Schomburg was, when Michael Johnson, the chief of prosecutions, attended

12 that meeting and made it perfectly plain in straightforward language that

13 the delay in reaching the plea agreement did not lie at the foot of the

14 defendant but lay elsewhere. And he was gracious enough to make that

15 concession. And I rely upon that concession because it has been mentioned

16 that he only pleaded at a time when people were here to give depositions.

17 Well, that was not his fault, that was not his intention, and indeed he,

18 of course, also had no control over the timing of those depositions. He

19 did what he could and other people thereafter took over control of the

20 timings.

21 So I ask if there's any suggestion that there's a delay in

22 the -- in the plea of guilty, which is in some way detrimental to the

23 defendant, that that be excluded immediately, because what matters is not

24 only he pleaded guilty but that it's a full plea of guilty. In a sense,

25 it's not a plea bargain. As I understand plea bargains - and they're not

Page 488

1 common in my jurisdiction; I know they're very common in the

2 United States - what happens is that a person says -- is confronted with a

3 multitude of charges often and offers pleas to a certain number of those

4 charges in spite of the fact that there is perfectly good evidence in

5 respect of all of the charges, but in order to avoid a trial and the costs

6 and difficulties of a trial, the Prosecution accept that partial plea and

7 there is a sentence agreed upon. This is not that case.

8 This is a case where although the indictment was reduced from 88

9 counts to four, the reality is that the -- the gravity of the offences is

10 equally contained within those four counts as it was within the original

11 88. As my learned friend said, it's just a more refined indictment, for

12 which everyone in the end should be grateful. But he's pleaded guilty to

13 the whole of that indictment and has not sought to plead to less. Only

14 when that was suggested - I make it perfectly plain - the question of

15 pleading to persecution only was suggested in order to avoid the

16 jurisprudential glitch as to cumulative sentencing that has been

17 recognised in this case. But I can say at once that that was not a -- a

18 suggestion by the Defence that was met, not by any of the Prosecution team

19 who sit in court today but was not met favourably. And rather than risk a

20 conflict, it was determined that because the defendant was not contesting

21 his guilt, it was better to plead to the indictment as a whole rather than

22 to force a narrow issue when there was obduracy as to that. So in fact,

23 although there's been a problem there, it was not of the defendant's

24 making. It is likely that we have resolved it, and that's well and good.

25 May I very briefly ask Your Honours to turn to the sentencing

Page 489

1 brief, page 8, the Defence sentencing brief page 8. It's the last

2 paragraph, where is it is submitted that: "The fact of pleas of guilty

3 and the recognition of culpability and contrition that that involves,

4 coupled with the desire to and effect of genuine subsequent cooperation,

5 is of vital importance to the aims of the ICTY in particular, and the

6 promotion of international criminal law in general."

7 A submission which I wrote and now endorse is this: That such an

8 attitude needs to be encouraged and actively seen to be encouraged by a

9 substantial reduction in the sentence -- in any sentence. And what I mean

10 by that is in a sentence that would otherwise be passed if there wasn't

11 such a plea and reconciliation, in recognition of the value of admission

12 and cooperation, and probably, most importantly, the promotion of such

13 recognition in the eyes and acts of other accused persons.

14 It tends - and history shows us that it tends - that when somebody

15 does something, other people follow. That can work for evil as well as it

16 can for good. And history is littered again with examples of evil men who

17 have led other people along. But by parity of reasoning, where somebody

18 does something which is good and useful, the hope is that that will lead

19 other men along as well. And I am instructed by the defendant in this

20 case to express the hope that other people will see what he has done and

21 have the courage to do the same, because he recognises the importance of

22 it and he's keen that others recognise the important of it as well.

23 Remorse. Set out in the report of Dr. Grosselfinger, if I may say

24 so - and my submission is, and I hope it's a submission which is well

25 received - a highly qualified, mature and experienced professional who

Page 490

1 recognises, of course, that it's possible for someone to deceive her but

2 all who saw her might think that that was pretty unlikely, and you'd have

3 to be a first-class actor to deceive Dr. Grosselfinger when it came to an

4 assessment of whether or not you were speaking to her in a truthful and

5 genuine way. And she's had ten years experience as a probation officer,

6 and I know that Your Honours from your own experience and your own

7 practice, that you can pull the wool over a lot of people's eyes, but

8 pulling the wool over the eyes of the probation service is not an easy

9 task. And she formed the view that he was being honest and

10 straightforward. That's underscored in two ways: First of all, because

11 of the fact he'd pleaded guilty; secondly, because of the cooperative

12 reconciliation, which is, as we know, substantial.

13 I'm not going to go through in detail the report of

14 Dr. Grosselfinger. It is put -- it's not a Defence document, but it's

15 adopted by the Defence as being a document which is extremely helpful, is

16 a document which is effectively evidence of the truth of its contents, and

17 nobody has suggested otherwise.

18 The reality of the position is this, that since he pleaded guilty,

19 the defendant has done everything he possibly can do, bearing in mind he's

20 still in custody, to make things better, to repair that bridge. You have

21 the law on sentencing in the former Yugoslavia. I've set it out in the

22 brief. The Prosecution and the Defence are not at issue on that. We're

23 both well aware of what the applicable law was in 1992. It's found its

24 way into the jurisprudence of the Tribunal, and I'm not entering into a

25 discourse on the jurisprudence of this Tribunal, neither as to substantive

Page 491

1 law or procedural law, but particularly not as to previous sentences.

2 They're there for us all to see, previous sentences in previous cases.

3 Last week a sentence was passed against a particular detainee of

4 eight years imprisonment for a number of offences, including five murders.

5 It's impossible to equate one case with another, exactly, but all I say is

6 this: Take into account immediately that the recommended sentence in this

7 case, of course on the face of it, arguably a more serious case, is almost

8 twice the sentence that was passed in that case. The sentence which has

9 been nominated by the Prosecution in this case is well within the ambit of

10 existing sentences passed by this Tribunal, well within the ambit of the

11 sentencing in the former Yugoslavia, as was applicable in 1992, the

12 principle of lex mitior applying, and of course well within the ambit,

13 according to the evidence of Professor Dr. Sieber, of a number of other

14 significant and mature jurisdictions.

15 We have the defendant's character; we have the character

16 witnesses. It wasn't suggested quite properly by my learned friends that

17 the Defence witnesses were lying. The impact they have isn't a matter for

18 the Prosecution; it's a matter for the Court. But these were the people

19 who came to court to say from their heart what they could say about the

20 defendant and my submission is they said it well. It's not an easy thing

21 to come to the court and give evidence, and they discharged their duty to

22 the best of their ability. But they did establish two things, in my

23 submission, first of all underscoring that before the events of 1992

24 Dragan Nikolic was a blameless man, and I mean that. He piled the blame

25 on himself and he has no one to blame but himself for what happened and

Page 492

1 where he finds himself now. He knows that.

2 And then after the war, after he finished, we're on to that

3 45-degree slope. He was a man when he was in Serbia about whom his cousin

4 Ljiljana was able to say nice things. Now, one might say, "Of course

5 she'll say nice things; she, after all, is his cousin." But why should

6 she say nice things about the man in a public forum like this and subject

7 herself to the possibility of being disbelieved and ridiculed if it isn't

8 true? And again, it wasn't suggested by anybody that it wasn't true. So

9 if we see this as a man who has descended into the pit, into the chasm,

10 and has partly by his own effort, partly by the effluxion of time come

11 back to the man he was before, then that is a complexity with which the

12 Trial Chamber has to wrestle.

13 His age is a factor. It is disingenuous to suppose that it

14 doesn't matter. Take an extreme example. A man who is seventy is

15 sentenced to 10 years' imprisonment; that is almost certainly a life

16 sentence for that man on any actuarial or statistical basis. If a man of

17 20 is sentenced to 10 years, it's not. Dragan Nikolic falls not in the

18 mid-point between those but, rather, further up from the mid-point of

19 those. The sentence which has been predicated by the Prosecutor is a

20 substantial part of the rest of his life. And Your Honours will have seen

21 the chart from the World Health Organisation incorporated into the Defence

22 brief. On an actuarial basis, on he has about, from now, some 16 years of

23 healthy life. Of course it might be less; of course, it might be more,

24 but that's the average. It isn't a short sentence.

25 This is not a sentence which has been plucked out of the air.

Page 493

1 Indeed, from the very time that it took to come to the recommendation that

2 was come to, one can see that it went through a heart-searching process,

3 if I may put it like that, by the Prosecution, and a lot of analysis from

4 both sides. It is a mature and sensible recommendation, bearing in mind

5 the plea, bearing in mind the remorse, bearing in mind the cooperation,

6 because unless those three elements are encouraged, then we are all in one

7 way or another going to be losers.

8 I'm going to call upon not very long from now Dragan Nikolic to

9 make a statement concerning -- I don't know exactly what he's going to

10 say. That's going to have to come from him. But I know it's essentially

11 on the subject of remorse.

12 What I ask the Trial Chamber to do is this: You can't step back

13 in some ways from the horror of seeing the people participated into the

14 chasm when the bridge broke, but what you can do is recognise that we all

15 have a part in rebuilding the bridge. Thank you.

16 JUDGE SCHOMBURG: Thank you, Mr. Morrison.

17 May I ask the Prosecution, do you want to respond?

18 [Prosecution counsel confer]

19 MR. YAPA: No, Your Honour, thank you, I don't have anything.

20 JUDGE SCHOMBURG: Yes. Then it would be the appropriate time now,

21 following the custom --

22 [Trial Chamber confers]

23 JUDGE SCHOMBURG: Judge Mumba has a question to Mr. Morrison.

24 Please.

25 Questioned by the Court:

Page 494

1 JUDGE MUMBA: Thank you. Mr. Morrison, I've taken into account

2 everything that has been said, and I've been thinking about your own

3 submissions regarding the character of the accused, especially when you

4 alluded to the fact that before the Susica camp incidents he was a

5 straight person, no criminal record. But what disturbs me is the sudden

6 turn in his own conduct. When you look at the expert report of

7 Dr. Grosselfinger, the party discussing the accused himself, according to

8 the document I have it's on page 4, where she discusses the beginning of

9 his career in the camp on the second paragraph.

10 She reports that "According to the accused, he was mobilised to

11 act as a guard over the Muslim detainees. He understood his job to be

12 security, curtailing the departure of detainees or controlling those

13 permitted to leave for work or other reasons." So we have there this

14 report indicating how he understood his duty to be at the camp. We have

15 also in evidence that his own brother at the camp was pleading with him to

16 stop the beatings, which means that it was not a necessary part of his

17 job, even as he understood it himself, according to this report, to beat

18 the detainees or to ill-treat them in any way, other than guarding them to

19 prevent their departure.

20 That aside, when we look at the report of Dr. Sieber, in his

21 findings according to the sentencing practice in the former Yugoslavia, he

22 did post the question, of course, to the Bench that it's up to the Judges

23 to decide whether we're going to look at the sentencing practice in 1992

24 or 2003. If you look at his report, you will notice that just before 1992

25 or after 1992, especially in B and H, what was considered to be a

Page 495

1 considerable part of a lifetime at that time was something like 20 years,

2 and that was the most serious, the most -- the highest custodial sentence.

3 When we move on to 2002-2003 and just before that, the

4 beginning -- the late 1990s, when the laws were being changed in the

5 various republics, you notice that for serious offences the custodial

6 period increases, up to about 45 years. That shows that the social values

7 in the former Yugoslavia, especially in B and H, are regarded serious

8 offences and regarded that it was a necessary moving-on to increase the

9 custodial sentence. Of course, that is caught by the legal principle of

10 lex mitior, that we can't take the increase in those sentences against the

11 interests of the accused in this case, but one can see the trend in social

12 values in that part of the world where the accused comes from.

13 The point is that the accused at the time when he went to Susica

14 was aged 35 years old. At that age, a man is grown up. He is an adult.

15 He is expected to be responsible. He himself had lost a father when he

16 was about 23, from the report that we have, so he understood what it was

17 like growing up without one parent. He had a mother. He had a sister.

18 He understood family relations. He understood the value of such

19 relations. Yet in the camp in which he himself understood that his job

20 was security, making sure that the detainees -- the Muslim detainees

21 didn't leave, he goes, on his own will, not that there were any

22 orders - because we haven't got that evidence before us - in the face of

23 his own brother's protestations, he exhibits such level of cruelty,

24 beating people to death, getting the women out of the camp, knowing very

25 well that they were going to be abused, letting the other guards abuse

Page 496

1 them. For some of the victims, like the first witness we had, she was

2 only there for a short period, a month or so, but there was so much

3 cruelty that she experienced, so much abuse, so much that she was able to

4 see. These victims were -- some of them were there with their children,

5 some of them grown-up children, and obviously when the witness who came

6 was talking about the fact that she can't, you know, have a relationship

7 with her son as a mother, the same goes for the other victims who were

8 parents, who were detained in the same place as their children.

9 This disturbs me, because even if the Prosecution have recommended

10 a sentence of 15 years and according to them they have taken into account

11 all the matters that have been said in this case, they have taken into

12 account the sentencing -- the schools of thought on sentencing,

13 rehabilitation, maybe retribution also, I'm still very disturbed that the

14 accused seems to come out as a personally cruel person, and it appears to

15 me that he took this opportunity, having been mobilised and placed in this

16 camp, to demonstrate a very high level of cruelty for no reason at all,

17 having understood his job as that of security and security only. Those

18 are my concerns.

19 MR. MORRISON: If I can assist. With the greatest of respect,

20 those are likely to be everybody's concerns. And I'm grateful to Your

21 Honour for enunciating them. And because they're everybody's concerns,

22 that's why, first of all, they form part of the indictment; and secondly,

23 it's how the defendant has met those concerns since he's been able to do

24 so.

25 We are talking about the acts -- the cruelty, and it is

Page 497

1 cruelty -- of a man when he was 35 years of age over a period of three to

2 four months. If you just took the man in a normal social situation who

3 went out at night and beat people and killed them, when he was living in a

4 society which was for all other purposes a normal and stable society, you

5 would think that this man must be a psychopath.

6 When you take a person, however, who is committing this sort of an

7 offence within the context of insanity, of an unnecessary ethnic conflict,

8 of a war where on both sides appalling atrocities were committed, not

9 simply by Dragan Nikolic but by hundreds if not thousands of people,

10 coming from a society in Vlasenica where he's the only person who has been

11 indicted.

12 But it's an accord between the Defence and the Prosecution in this

13 case that there are many other people in that area who are at least as

14 culpable as Dragan Nikolic, who are now going about their daily lives

15 unindicted and against whom can be seen that they were not in any way

16 psychopaths. Those persons too are equally morally culpable. They are

17 not yet legally culpable, because they haven't been brought to court. But

18 the future may change. And all I say as to that is how is society going

19 to meet the just needs of dealing with those people without people like

20 Dragan Nikolic to assist? It's of vital importance to settling one of the

21 crucial issues that Your Honour has raised.

22 He was for a relatively short period of time, 11 years ago,

23 extraordinarily cruel. He knows that, and he's pleaded guilty to that.

24 But he's made all the amends now and will make all the amends that he can;

25 many others haven't; many others don't; many others won't. And that's

Page 498

1 sad. But he's doing his best.

2 As to the question of social engineering changing over the years,

3 well, of course that's exactly the jurisprudential basis for the principle

4 of lex mitior, is that as society changes and sentencing norms change, you

5 don't visit the new norms upon old behaviour, because it's patently unfair

6 so to do. To take a dramatic example: If in 1990 a particular dishonest

7 or unlawful act was visited by a non-custodial sentence only and yet ten

8 years later society decided it was so heinous that the same act deserved

9 the death penalty, nobody would begin to suggest that it was proper to

10 pass the death penalty. And exactly the same principles apply across the

11 board. That's the -- that's how social engineering is met.

12 But I'd make another point: The social engineering that was going

13 on in 1992 was insane. It was ethnic cleansing. The social engineering

14 we're looking at now is completely different; it's rebuilding that bridge.

15 And with the absence of people assisting in the rebuilding of the bridge

16 by admitting their culpability and doing what they can, it's going to be a

17 much harder bridge to build, and indeed, I venture to submit, it may never

18 be built unless people do what Dragan Nikolic is doing.

19 I didn't put it into the original submissions, but I raise it

20 because Your Honour has raised it. What he did in the camp was dreadful,

21 ignoring his brother was dreadful and foolish. But one can set a number

22 of examples to say that it wasn't unmitigated cruelty. There were

23 acts -- albeit relatively small, compared to the unlawful acts. He would

24 give food that was brought to the camp, to the people it was brought for

25 when he could. There were others who would stop him doing it, and when

Page 499

1 those people weren't there, he would make sure the food was given to the

2 people. That's in evidence from a Prosecution witness. He would order

3 the distribution of milk to children when he could and wasn't stopped from

4 doing it by other people; that is in evidence from a Prosecution witness.

5 There was one occasion when he was giving a pillow and a blanket to an

6 elderly person and was stopped from doing so, made a complaint, and then

7 was allowed to do it. So the picture, although bleak, is by far all bleak

8 even in that dreadful three- to four-month period. There were acts of

9 kindness even then.

10 I'm not sure if I can assist any further.

11 JUDGE MUMBA: Thank you.

12 [Trial Chamber confers]

13 JUDGE SCHOMBURG: Judge Agius, do you have any questions? It is

14 not the case.

15 Then we turn to the last chapter of the sentencing hearing; this

16 would be what it is called in the civil-law system the final word, or in

17 our terms, it has become custom in this Tribunal that the accused enjoys

18 the right to give a statement at the end of the hearing, a statement where

19 nobody can add any questions, and this statement will conclude the

20 hearing.

21 I would appreciate if it would be made possible that Mr. Nikolic

22 could sit down there where normally the witnesses would sit, being aware

23 that it is a statement only but in order to better be able to follow his

24 statement. So may I therefore ask that Mr. Nikolic please be seated here

25 in front of us. Thank you.

Page 500

1 Mr. Nikolic, please be seated, and you can make your statement and

2 you may address all those issues you want to address. It is for you to

3 make the statement. Please, sit down.

4 THE ACCUSED: [Interpretation] Your Honours, I am fully aware of

5 all the things with which I am charged. I am aware of the acts that I

6 have committed, and I confess to them count by count as they were read out

7 to me here. I pleaded guilty, and I assume full responsibility for the

8 acts that I have committed.

9 How do I feel about the things that I did in those three months

10 that I spent in the Susica camp? Only I know that. But I genuinely feel

11 shame and disgrace. But as you heard here, on the one hand, I carried

12 weapons in Susica, I wore a uniform; and on the other hand, there is the

13 fact that there were women there, aged the same as my mother, there were

14 children there, there were people who used to be friends of mine, whom I

15 used to see over the years in cafes, on sports fields, and playgrounds,

16 with whom I spent summer vacations. And when I think about all of this,

17 it turned into a nightmare that is pursuing me these days and that I see

18 over and over again in my sleep. The question arises why did I do all

19 that? I had enough time to think about it, 11 years. But it is still

20 hard to find an answer to that question.

21 I can tell you with complete sincerity I never felt sorry for

22 myself because I was not too young to understand at the time; I was a

23 mature man, 35 -- 35 years old. And my compassion was always directed

24 only at the victims, not only those that I hurt myself or whose families I

25 hurt. All those who were down there at Susica were victims.

Page 501

1 What can I say about it all? I can say that I repent sincerely

2 for all of that. I genuinely repent. I am not saying this pro forma,

3 this repentance and contrition comes from deep inside me, because I knew

4 most of those people from the earliest stage. I knew them well; some of

5 them were my neighbours. I want to avail myself of this opportunity to

6 say to all those who -- whom I hurt, either directly or indirectly, that I

7 apologise to everyone who spent any time in Susica, be it a month or

8 several months.

9 I would like, now that I have this opportunity to speak in public,

10 to make even those victims feel the sincerity of my apology and my

11 repentance, even those who were never at the Susica camp and who are now

12 scattered all over the world as a result of that conflict and the

13 expulsions which made it impossible for them to return home.

14 I am aware, Your Honours, that I will spend a long time in prison,

15 but at the same time I hope that the day will come when I will get out.

16 It is my desire to return to Vlasenica one day to do whatever is in my

17 power, if it is at all possible, for those people to become close again,

18 to return to their homes. I would not for a second like to be a threat to

19 anyone by my mere presence, and if at any moment I should feel that my

20 presence disturbs anybody, I would leave immediately. I would go to see

21 my family, my relatives, and I would keep returning there as long as it

22 takes until the moment comes when I feel that nobody minds my being there

23 any more, to try to help those people start a new life in that town, which

24 after all had not been completely destroyed.

25 I have admitted to my guilt, and as my counsel said - I wish to

Page 502

1 repeat it once again - I hope that all the three parties will be

2 encouraged by my confession to assume their part of the responsibility for

3 those terrible acts, because that is the only thing that would make it

4 possible for people to become close again, for the three peoples to become

5 close again in those parts. It should be clear to all of us that we are

6 after all an important factor in this reconciliation and peaceful

7 coexistence. This Tribunal also plays an important part in it. And I am

8 trying to assist the Tribunal in this way. We must never forget about the

9 victims.

10 I now speak only in my own name, and I wish to say that there were

11 among the victims people with whom I grew up and I wish to reiterate once

12 again my deep and sincere repentance over everything that I had done down

13 there. I hope I will get a chance to redeem myself and to alleviate their

14 suffering.

15 I received a message when my cousin visited me, and I want to

16 thank you, Your Honours, for giving me this opportunity to speak and to

17 say all this, to thank you in my own name and on behalf of my mother and

18 my sister, who are here. I had told them that this would be a public

19 hearing. They wanted me to convey to everyone here that their door is

20 always open, that anyone can come to talk to them, including victims and

21 perhaps even neighbours who were never at Susica.

22 I can hardly find the right words, but even so, mere words are not

23 enough. Acts are needed, and I do intend to act for reconciliation for

24 the return of those people who were displaced and expelled. That is my

25 deepest wish.

Page 503

1 Thank you again, Your Honours.

2 JUDGE SCHOMBURG: Thank you, Mr. Nikolic, for these final remarks.

3 This concludes the sentencing hearing in this case. The judgement

4 will be handed down in due course, in all likelihood as and already

5 announced, the 18th of December, at 2.00.

6 The trial stays adjourned until then.

7 --- Whereupon the hearing adjourned at 1.04 p.m.