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.
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.
11 WITNESS: NANCY GROSSELFINGER [Resumed]
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,
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
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
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
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
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
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
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.
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
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
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
1 A. It's because I asked him categorically: How do you feel about
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
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.
1 It starts, "After three years and five months." Do you see that
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.
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
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
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.
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
1 further questions?
2 MR. YAPA: We have no further questions, Your Honour.
3 JUDGE SCHOMBURG: Thank you.
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
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
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
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.
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
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
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]
12 Pages 446 to 453 redacted, private session
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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.
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.
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
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
25 Detainees were taken out of the hangar, they were beaten, and
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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,
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
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
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
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
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
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
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
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
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.
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.
25 Questioned by the Court:
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
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
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
25 We are talking about the acts -- the cruelty, and it is
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
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
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
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
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.
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.
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
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
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
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.
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.