1 Wednesday, 22 October 2003
2 [Sentencing Proceedings]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.20 p.m.
6 JUDGE ORIE: Good afternoon to everyone in and around this
7 courtroom, those who are assisting us.
8 Madam Registrar, may I ask you to call the case.
9 THE REGISTRAR: Case number IT-02-59-S, the Prosecutor versus
10 Darko Mrdja.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 Mr. Mrdja, can you hear me in a language you understand? Is the
13 translation properly functioning? That's exactly what I -- is the
14 translation now properly functioning?
15 THE ACCUSED: [Interpretation] I apologise, Your Honour, but I can
16 only hear what is being said in English.
17 JUDGE ORIE: Yes. Then I think we should change the channel for
18 you. Is the translation now properly functioning, Mr. Mrdja?
19 THE ACCUSED: [Interpretation] Thank you, Your Honour. Everything
20 is fine now.
21 JUDGE ORIE: Thank you very much. Please be seated.
22 THE ACCUSED: [Interpretation] Thank you.
23 JUDGE ORIE: May I have the appearances, first for the
25 MR. TIEGER: Thank you. Good afternoon, Mr. President, Your
1 Honours. Alan Tieger and Tim Resch appear on behalf of the Prosecution,
2 with case manager Skye Winner.
3 JUDGE ORIE: Thank you. And for the Defence?
4 MR. DIMITRIJEVIC: Good afternoon, Your Honours. For Defence,
5 Vojislav Dimitrijevic, lead defence, and my learned colleague, Otmar
7 JUDGE ORIE: Yes. Thank you. Thank you, Mr. Dimitrijevic.
8 This afternoon this Chamber will have a sentencing hearing in the
9 case of Mr. Mrdja, who has pleaded guilty on an indictment on which only
10 two counts still appear, that is, Count 2, murder, a violation of the laws
11 or customs of war, and Count 3, inhumane acts, a crime against humanity.
12 The indictment, the latest version, the amended version, the
13 final version bears the date of the 4th of August.
14 The Chamber has received the pre-sentencing briefs, both of the
15 Defence and of the Prosecution. The Chamber further has received annexes
16 to both these sentencing briefs, and the Chamber also has received a
17 psychological report that arrived almost immediately after we had received
18 the sentencing briefs, that is, a report made by -- made by
19 Professor Adolf Gallwitz. The order will be that I'll first give an
20 opportunity to both parties to briefly introduce what they want to submit
21 to the Chamber in addition to what has been already submitted in writing,
22 so to set out their argument briefly. Then the Chamber will listen to
23 evidence adduced by the parties, whether it's viva voce evidence or
24 whether it's commented evidence in writing under 92 bis or under Rule 100.
25 As the parties may be aware, the -- the formal Rules of Evidence do not
1 similarly apply as they do during trial.
2 Then as far as I understand, Mr. Mrdja himself would like to make
3 a statement. Then after we have dealt with the evidence or with the
4 information submitted by the parties to the Chamber, we'll give an
5 opportunity to the parties for their closing argument, as far as
6 sentencing is concerned. If there would be any questions by the Judges,
7 they can be either put to you immediately or at the very end of this
9 May I then first invite the Prosecution to make the -- some
10 opening remarks. I had in mind that the opening remarks should be
11 completed in approximately 50 minutes.
12 MR. RESCH: Good afternoon, Your Honours, counsel.
13 Your Honours, the purpose of my opening remarks is to provide you
14 with an outline of the evidence the Prosecution will adduce this
15 afternoon. I will also identify those issues that the Prosecution submits
16 are of particular relevance to this sentencing hearing. And lastly, Your
17 Honours, I will touch on some of the relevant sentencing factors where the
18 Prosecution and Defence have different views.
19 Before I address those matters, however, I would like to briefly
20 discuss the incidents and events that led us to today's sentencing
22 On the 21st of August, 1992, Darko Mrdja and other members of a
23 special unit of the Prijedor Police, known as the "Intervention Squad"
24 participated in the murder of approximately 200 non-Serb civilians at a
25 location called Koricanske Stijene or the Koricani Cliffs on Mount Vlasic.
1 These predominantly Muslim men and a few boys had been passengers on a
2 convoy of non-Serbs out of Prijedor in the direction of Travnik. As Your
3 Honours will hear from our witnesses today, miraculously 12 men managed to
4 survive the massacre.
5 Darko Mrdja was indicted by this Tribunal on the 16th of April,
6 2002. He was arrested in Prijedor on the 13th of June,2002, transferred
7 to The Hague the next day. At his Initial Appearance before the Tribunal
8 on 17 June 2002, he plead not guilty to the charges in the indictment. On
9 the 24th of July, 2003, five days before his trial was set to begin, and
10 pursuant to an agreement between the parties, Darko Mrdja changed his plea
11 to guilty to Count 2 of the indictment and Count 3 of the indictment, as
12 Your Honour mentioned earlier. At that hearing, the Prosecution moved to
13 dismiss Count 1, and subsequently filed an amended indictment. Darko
14 Mrdja's guilty pleas were accepted by this Chamber and findings of guilt
15 were entered for Counts 2 and 3 of the indictment.
16 Your Honour, in our written submissions and in our presentation
17 and through our witnesses today, the Prosecution has endeavoured to
18 identify the issues that are critical for Your Honours in determining what
19 is a just sentence for Darko Mrdja. We have relied upon the Statute of
20 the Tribunal, the Tribunal's Rules of Procedure and Evidence, and upon the
21 jurisprudence of this Tribunal. We have made detailed written submissions
22 about the factors that are relevant for your consideration. Those factors
24 First, the gravity of the offence;
25 Second, the individual circumstances of the accused;
1 Third, aggravating or mitigating circumstances, and;
2 Fourth, the general practices regarding sentencing in the former
4 In our oral submissions later today, we will identify some of
5 these factors where we differ from the Defence. We will also, in our oral
6 submissions, attempt to clarify the Prosecution's position with respect to
7 the gravity of the crime at issue here, in which convictions have been
8 entered for violation of the laws or customs of war, as well as for crimes
9 against humanity.
10 Today the Prosecution will call two witnesses to give evidence
11 relevant to sentencing. In putting forward these witnesses, it is not the
12 Prosecution's intent to sensationalise or dramatise the events at
13 Koricanske Stijene. The gravity of this crime requires no embellishment.
14 The witnesses you will hear from, one survivor of the massacre and one
15 representative from Bosnian Victim's Support Organisation, will attempt to
16 put the event and its lasting effect on the victims and their family
17 members into an appropriate context for Your Honours.
18 The first witness, Mr. Midhet Mujkanovic, is a survivor of the
19 massacre at Koricanske Stijene. Mr. Mujkanovic will recount for Your
20 Honours the events of 21 August 1992. He will describe the physical
21 condition of the victims and how many of the victims had been detained at
22 the notorious prison camps, Omarska and Keraterm, in Prijedor. He will
23 describe his remarkable story of survival and the aftermath of the
24 massacre. He will also explain how this incident has left lasting effects
25 on him. Mr. Mujkanovic's testimony will highlight for Your Honours both
1 the gravity of the crime and the vulnerability of the victims.
2 Given the large scale of the massacre at Koricanske Stijene, it
3 is not possible to put forward all the stories from the victim's families.
4 We propose to give Your Honours a summary of the victim's stories through
5 our second Prosecution witness, Ms. Seida Karabasic. Ms. Karabasic is the
6 president of the Izvor Association of Prijedor Women, an organisation
7 headquartered in Sanski Most and dedicated to finding missing persons and
8 working with the victims and family members from the conflict in Bosnia.
9 Ms. Karabasic will testify on behalf of the victims and their surviving
10 family members, many of whom she has personally met and worked with. She
11 will explain the desires of the family members, that the perpetrators of
12 this crime be brought to justice and that the bodies of the victims be
13 recovered. We will play some portions of the video from a memorial
14 service --
15 THE INTERPRETER: Could counsel kindly slow down.
16 MR. RESCH: I apologise to the interpreters.
17 We will play some portions of a video from a memorial service at
18 Koricanske Stijene from 21 August 2002, the tenth anniversary of the
19 massacre. Ms. Karabasic will identify for Your Honours some of the family
20 members and relate to you their stories. We submit that the victims and
21 the family members' stories will assist Your Honours in assessing the
22 gravity of the crime.
23 Finally, Mr. Tieger will make oral submissions about the factors
24 that I have mentioned. Rather than file written responses to the
25 sentencing briefs, the parties have discussed their positions and will
1 make their responses orally. The Prosecution respectfully disagrees with
2 the Defence with respect to a number of proposed mitigating factors.
3 Among the factors on which we take issue with the Defence position are the
4 proper evaluation of remorse, vulnerability of the victims, the impact of
5 the psychological expert report, and the interplay between duress and
6 superior orders. We will also use this opportunity to clarify for the
7 Chamber the Prosecution's position with respect to the gravity of the
8 offences and whether one charge should be given greater weight.
9 We will also submit today an amended annex to the amended
10 indictment filed on 4 August 2003. The Prosecution's investigative
11 efforts on this case have continued throughout the proceedings, and we
12 have been able to correct the annex to the indictment, which contains a
13 list of the victims from the Koricanske massacre.
14 Your Honours, we will also request that a short portion of our
15 submissions be made in private session. Mr. Tieger will address the
16 Chamber about the issues outlined above and will frame for Your Honours
17 how those factors, in addition to the evidence adduced today, and the
18 statements submitted with our brief, support the Prosecution's
19 recommendation of an appropriate sentence for Darko Mrdja.
20 Thank you, Your Honours.
21 [Trial Chamber and registrar confer]
22 JUDGE ORIE: The request is whether the Prosecution would be
23 willing to share the rostrums with the Defence, since there is no
24 additional one available.
25 I already now indicate that the Chamber will consider whether an
1 amendment to one of the annexes to the indictment could still be filed at
2 this late stage where the Chamber has already accepted the plea.
3 Nevertheless, the Chamber would like to be informed on whether, for
4 example, if you want to strike out names of the list that by mistake are
5 there, I think it's important that at least this is known to the public,
6 apart from what our decision will be on whether it's admissible or not, to
7 -- to change the annex, to make a new amended annex. That's, in this
8 stage of the procedure, I would say, usually it would not be admissible.
9 But if there's any -- any other thing you'd like to submit in that
10 respect, we'll hear from you.
11 Then, Mr. Wachenheim, I invite you.
12 MR. WACHENHEIM: Good afternoon, Mr. President, Your Honours,
13 learned colleagues from the Office of the Prosecutor. In my introductory
14 remarks, I would like to do two things: First, to give a short overview
15 of the arguments the Defence has presented in its sentencing brief for
16 consideration of this Honourable Chamber in order to assist you in
17 finding, to use the words of the Todorovic Court, the sentence that fits
18 the crime; and second, since the Defence is not going to present any live
19 witnesses today but it has tendered into evidence a number of documents
20 and nine written witnesses' statements, it wants to give you an indication
21 what is contained in them.
22 In its brief, the Defence has pointed you to the general
23 sentencing considerations of retribution and deterrence but also to the
24 importance of rehabilitation.
25 In our final argument, you will be given a detailed assessment of
1 the gravity of the crime and an analysis of what elements of the crime are
2 already subsumed in the gravity of the committed offence and, therefore,
3 cannot be considered twice. In this context, we will also comment on
4 whether there are any aggravating factors to be considered by this
5 Honourable Chamber.
6 As the centerpiece of the Defence arguments in the brief, we
7 extensively have dealt with the mitigating factors in this case as they
8 are; Mr. Mrdja's cooperation with the Office of the Prosecutor, his guilty
9 plea, and his expression of remorse.
10 Lead counsel will discuss the notion of duress as a mitigating
11 factor and the findings of the expert witness, Professor Gallwitz, in this
12 respect and as to the personality of the accused as they are contained in
13 his report of 13 October 2003. Based on national jurisprudence, the
14 Defence has introduced two new mitigating factors for this Honourable
15 Chamber to consider; namely, first, a long time lapse between the
16 commission of the criminal act and the beginning of a trial and; second,
17 the fact that it constitutes a particular hardship on a defendant if he
18 has to serve his sentence in a country that is particularly foreign to
20 The Defence in its brief has discussed Mr. Mrdja's personal
21 circumstances before and after the war and has presented as evidence the
22 statement of the United Nations Detention Unit's prison warden confirming
23 that the conduct of Mr. Mrdja while being detained has been cooperative
24 and respectful.
25 We also have introduced witnesses' statements, the contents of
1 which I want to very quickly bring to your attention, and this then will
2 be the end of my opening remarks. I will follow the order of Annex B of
3 our sentencing brief.
4 First, in the statement of Dragana Mrdja, Darko Mrdja's wife, in
5 very moving words, describes the extremely tight economic situation of the
6 couple since their living together in the year 1997, the severe medical
7 condition of their son Nikola, and the almost disastrous emotional and
8 financial situation that she and their two children have to deal with on a
9 daily basis since Darko Mrdja's arrest.
10 Second, the statement of Darko Mrdja's younger sister, also named
11 Dragana Mrdja, describes the working-class family background, the fact
12 that before the war Darko Mrdja had social contacts with all ethnic groups
13 in Bosnia, and the change the sister noticed in her brother during the war
14 and after the Koricanske Stijene incident in particular, finally, the fact
15 that right after this event, he left the police and returned back to his
16 military unit.
17 Three, the statement of protected Witness WIS, a Bosniak from
18 Tukovi, the village where Mrdja is from. He has known Darko Mrdja and his
19 entire family from before the war. He describes the relationship he had
20 had with him as uncomplicated and without ethnic bias. After the war,
21 Mr. Mrdja and the witness got together more frequently, and again the
22 witness did not notice any ethnic prejudice against Muslims.
23 The fourth witness's statement is that of Roman Ostojic. He
24 mentions Darko Mrdja's good sportsmanship as a fisherman and his correct
25 behaviour towards citizens of other ethnic groups. The witness, as the
1 owner of a cafe where the accused was a frequent guest, was able to
2 observe Darko Mrdja regularly.
3 Fifth, Goran Zgonjanin also describes Mrdja as a good and fair
4 sportsman who, when in company, was pleasant and entertaining and in the
5 presence of the witness has never shown any ethnic bias.
6 Six is Dusko Bubalo. He describes the way Mrdja was arrested by
7 SFOR, that he was severely beaten and that he did not resist and actually
8 had no chance to resist his arrest.
9 Seven is the statement of Damir Ceranic. He was Darko Mrdja's
10 passenger in the car when both were arrested by SFOR. He describes the
11 circumstances of this arrest and confirms that there was no resistance on
12 Darko Mrdja's part. Furthermore, Ceranic also confirms that in everyday
13 life he never noticed any ethnic prejudices with Darko Mrdja.
14 The eighth statement is that of Damir Cankovic, who has known the
15 accused for 16 years, confirms that Mrdja has not been hiding in any way
16 before his arrest, and he explains the reasons why Darko Mrdja was
17 carrying the witness's pistol at the time of his arrest.
18 The last statement I want to deal with is that of Ostoja Barasin,
19 former commander in the rank of a colonel of 5th Kozarska Brigade and
20 Darko Mrdja's superior in the military police. Colonel Barasin describes
21 Mrdja's work as a military policeman as having been reliable and
22 consistent without any showing of ethnic intolerance, and the witness
23 states that Darko Mrdja was brave and that his conduct as a policeman
24 never gave rise to any complaints.
25 Those, Your Honours, were my introductory remarks, and I thank
1 you for your attention.
2 JUDGE ORIE: Yes. Thank you, Mr. Wachenheim.
3 Perhaps before we continue and before we give an opportunity to
4 the Prosecution to call their witnesses, I'd like to raise one issue with
5 you. This sentencing hearing takes place on the basis of the guilty plea
6 of Mr. Mrdja, and the Chamber was somewhat troubled by what the
7 psychologist describes as the factual basis on which he, at least, drafted
8 his psychological report.
9 Let me just give you a small example. In the plea agreement, it
10 says that "Mr. Mrdja selected men of military age with the awareness and
11 expectation that these men would be killed." I think it even says that he
12 personally selected these men. But if I look at the psychological report,
13 which describes that the factual basis for this found in the -- what
14 Mr. Mrdja has told the psychologist, then he says -- or at least, it reads
15 that "While selecting, upon the request of Mr. Mrdja, he was told at the
16 time that there would be an exchange of prisoners," which is quite a
17 different -- quite a different course of events, where the plea agreement
18 says, "He selected men with the awareness and expectation that these men
19 would be killed." He says, "I selected them and I asked for information
20 and they told me that there would be an exchange of prisoners."
21 Well, that's not the only difference. For example, in the plea
22 agreement, it says that Mr. Mrdja personally selected. In -- to the
23 psychologist, at least in the report, it says: "Some people were chosen."
24 By whom is totally unclear. On the basis of what criteria also is
25 perfectly unclear.
1 So also if we look at the plea agreement, we see that Mr. Mrdja
2 participated in the shooting and killing of the victims. And if I look at
3 what he told the psychologist, I see that it -- it gives the impression as
4 if he was shooting at a person or persons who tried to escape without
5 saying whether he hit someone. He only said that he targeted to the right
6 part of the -- of the body. But then he said, "I was shooting without
7 aiming at people." That's the next step. And then finally he says that
8 "During the time he held the gun in his hands, approximately 10 people
9 were hit by bullets." How has the Chamber to understand this course of
10 events, where it seems that a picture is created that Mr. Mrdja was
11 standing there with his weapon and while he was standing there, ten people
12 were killed? By whom? Not by Mr. Mrdja; Mr. Mrdja, who did not aim at
13 persons? It's -- it's not clear whether in his statement on facts to the
14 psychologist Mr. Mrdja did not, in fact, say that he did not plead guilty
15 of murder. A murder requires intent to kill someone. Could you please
16 clarify this before we continue?
17 MR. WACHENHEIM: Yes, Your Honour. But my lead counsel indicated
18 to me that he would like to answer your question, with your permission.
19 JUDGE ORIE: Yes, of course. It's entirely up to you who does.
20 MR. DIMITRIJEVIC: Your Honours, we also noticed those
21 ambiguities in this report. Unfortunately, we don't have any transcript
22 from the interview what held Professor Gallwitz with our client. He
23 spent, as far as we know, one morning with him. But --
24 JUDGE ORIE: The report says seven hours.
25 MR. DIMITRIJEVIC: Okay, seven hours. It's something more than
1 one morning.
2 JUDGE ORIE: Yes.
3 MR. DIMITRIJEVIC: But Mr. Mrdja himself, he gave a statement
4 regarding this event a couple of times; at least two times to the Office
5 of the Prosecutor and once, what I will consider in the closing session.
6 So Mr. Mrdja firmly relies on his statements. I don't know how
7 Professor Gallwitz had such conclusions and how did Mr. Mrdja said what --
8 what the professor said in his report, but -- but that makes us to -- to
9 some questions which we cannot really respond. We -- with all respects,
10 we -- we have -- we respect the Trial Chamber decision not to interfere in
11 that -- in that -- with that witness. We don't -- we didn't have any
12 contact with him.
13 JUDGE ORIE: Yes. May I just interrupt you. Do I understand you
14 well that you say that the Defence takes distance from wherever the
15 psychological report gives a cause of events attributed by the
16 psychologist to Mr. Mrdja but -- at least, it gives a course of events
17 that's different. You take distance from that as far as it's not
18 consistent with the statement of facts in the -- in the plea agreement?
19 Is that a correct understanding?
20 MR. DIMITRIJEVIC: Actually, Your Honour, we must say that we
21 cannot completely have distance of that report.
22 JUDGE ORIE: No. I'm just saying you take distance to the extent
23 that the facts as described by the psychologist are inconsistent with the
24 content of the plea agreement.
25 MR. DIMITRIJEVIC: Yes, exactly, Your Honour.
1 JUDGE ORIE: Yes. Then that's, at least, clear to us. You will
2 understand that this might have some consequences for the evaluation of
3 the psychological report as well, since the psychologist based his opinion
4 on the facts as he describes them to be presented to him. But we'll deal
5 with that later on. But this, of course, causes a -- an additional
7 MR. DIMITRIJEVIC: Yes, Your Honour. We are aware of that. And
8 we are sorry for that. But that's how things are.
9 JUDGE ORIE: Yes. Okay. Then thank you very much for your --
10 for your introduction, your opening remarks, Mr. Wachenheim; for your
11 answer to our question, Mr. Dimitrijevic.
12 I think we have come to the point where the Prosecution could
13 call his first witness, which I understand is Midhet Mujkanovic.
14 MR. TIEGER: That is correct, Your Honour. Thank you.
15 JUDGE ORIE: Madam Registrar, would you please escort the witness
16 into the courtroom.
17 [The witness entered court]
18 JUDGE ORIE: Mr. Mujkanovic, I take it? May I also take it that
19 you understand me in a language -- that you hear me in a language you
20 understand? Yes.
21 The Court invites you to make a solemn declaration that you'll
22 speak the truth, the whole truth, and nothing but the truth when you
23 testify in this court. The text is being handed to you now by the usher.
24 May I invite you to make that solemn declaration.
25 THE WITNESS: [Interpretation] I solemnly declare that I will
1 speak the truth, the whole truth, and nothing but the truth.
2 JUDGE ORIE: Thank you very much. Please be seated,
3 Mr. Mujkanovic.
4 WITNESS: MIDHET MUJKANOVIC
5 [Witness answered through interpreter]
6 JUDGE ORIE: Mr. Tieger, is it agreed upon the parties that there
7 will be no cross-examination, or did I understand it well, or -- it's just
8 examination-in-chief, or ...?
9 MR. TIEGER: I think it's fair to say there's no expectation.
10 JUDGE ORIE: No expectation. So, of course, you could not
11 exclude for certain prior to that, but the parties, yes, are not -- have
12 not agreed that there will certainly be cross-examination. Has not been
13 claimed by the Defence in this case, I understand.
14 Then please proceed, Mr. Tieger.
15 MR. TIEGER: Thank you, Your Honour.
16 Examined by Mr. Tieger:
17 Q. Good morning, sir. And thank you for being here today. Can we
18 begin by having you state your full name, please.
19 A. My name is Midhet Mujkanovic.
20 Q. And where were you born and raised?
21 A. I was born in Jakupovici on the 2nd of September, 1964, Prijedor
23 Q. And were you living in Prijedor municipality in 1992?
24 A. Yes. I lived in the municipality of Prijedor at that time.
25 Q. What was your occupation, Mr. Mujkanovic?
1 A. At the time, I did not have an occupation as such. We had some
2 land. I worked the land. I was jobless. I used to work in Slovenia as a
3 plumber, and I was made redundant.
4 Q. Now, Mr. Mujkanovic, we will be asking you about the events of
5 August 21st, 1992. But before I inquire about that day, will briefly ask
6 you to describe some of the background events that brought you to that
7 day. Were you in your village or at home when the conflict began?
8 A. Yes, I was. I was in my village at home, yes, when the conflict
10 Q. Was your village shelled?
11 A. Yes, it was shelled from all sides intensely.
12 Q. And did you and your neighbours leave your homes and surrender to
13 the Bosnian Serb forces?
14 A. Well, I surrendered after two days. I did. I came to Kamicani.
15 We hid in the forest by Kozarac. So we were between Kozarac and Kamicani.
16 As for the others, some people stayed in the village and surrendered to
17 the Serbs immediately. I surrendered after a day or two. So that we were
18 everywhere in Kozarac area. Many people were in other places, in
19 Trnopolje and so on.
20 Q. And where were you taken after you surrendered?
21 A. From the Kozarac station, we were taken to Keraterm, in Prijedor.
22 I surrendered in Kozarac.
23 Q. How long were you in Keraterm?
24 A. I stayed there a night or two.
25 Q. Where were you taken after that?
1 A. To Omarska.
2 Q. And Mr. Mujkanovic, approximately how long were you held in
4 A. Well, approximately more than two months. Two months and ten
5 days. And since I was declared to be a civilian, I and some 600 to 700
6 people were sent to Trnopolje, because they concluded that I was not a
8 Q. Can you briefly describe your physical condition after you were
9 released from Omarska and sent to Trnopolje.
10 A. I was in a really bad situation. I had lost a lot of weight. I
11 didn't weigh more than 53 kilogrammes. And both in physical and mental
12 sense I was a broken man.
13 Q. On the 21st of August, 1992 did you and others board a convoy of
14 trucks and buses that departed Trnopolje?
15 A. Yes, I did.
16 Q. And did that convoy consist of men, women, and children?
17 A. Yes, that's correct.
18 Q. And what ethnicity were the passengers in that convoy?
19 A. Those of us who were at the camp were mostly Muslims. Perhaps
20 there were some Croats. The Serbs and their authorities were the ones who
21 organised the convoy. Most of the people were civilians, and it was
22 mostly Muslims who lived in the Kozarac area. And this convoy was a means
23 of getting out of that situation for them.
24 Q. Were there other men who had been released from either Omarska or
25 Keraterm and whose physical condition resembled your own?
1 A. I can't remember that. I don't remember people on that convoy.
2 The situation was such that it was very difficult to watch it. It is
3 possible that some people who had come from Omarska were in that convoy
5 MR. TIEGER: Your Honour, I'd like to show the witness an
6 exhibit. And I'd like this marked, please, as a Prosecution exhibit.
7 [Trial Chamber and registrar confer]
8 JUDGE ORIE: Mr. Tieger, the suggestion of the Chamber is that
9 you mark the exhibits with S numbers, so it would then be S1 the original
10 will then be marked by Madam Registrar. So S1 will then be a map with the
11 Trnopolje-Vlasic route on it with the number 02166228.
12 MR. TIEGER:
13 Q. Mr. Mujkanovic, taking a look at Exhibit S1, does that depict, to
14 the best of your recollection, the route that the convoy took on the 21st
15 of August, 1992?
16 A. Yes, it does show realistically that route. Yes.
17 Q. Now, Mr. Mujkanovic, during the course of the convoy's
18 progression from Trnopolje in the direction of Travnik, can you give us
19 some indication of the manner in which the passengers were treated by the
20 guards on the convoy?
21 A. Well, at the time, I didn't get an impression that they were
22 threatening us directly. I didn't see anything to that effect. However,
23 there was one situation that seemed strange to me. When we stopped some
24 50 kilometres from Banja Luka, after we had travelled 50 kilometres, they
25 allowed us to have a break. We got out and drank water from the stream.
1 Then all of the guards gathered in a circle. And at that time it crossed
2 my mind that the situation wasn't really a hopeful one. All of them, the
3 drivers and the guards or the bodyguards, as we called them, they all got
4 together. They sat next to each other, talking. I don't know what they
5 were talking about. But in the meantime, every time we passed by a
6 military facility, they would start yelling and not allow us to look
8 Q. Mr. Mujkanovic, had the passengers in the convoy attempted to
9 bring some of their possessions - money, jewellery - with them during the
10 -- during their departure from Prijedor?
11 A. It is possible that some people had some valuables if that had
12 not been looted prior to that. Every time they took custody of our
13 people, they would take their valuables away from them. So what could we
14 have on us? Not much.
15 Q. And were there similar attempts to take whatever valuables the
16 passengers had on this convoy?
17 A. Yes. When they started disembarking us from the bus and they
18 told us to move from one bus to the other, at that point they wanted us to
19 turn over all the valuables we had.
20 Q. Mr. Mujkanovic, at some point during that convoy, were you
21 removed from the bus on which you had been a passenger?
22 A. Well, we travelled, and it's hard to say how long we travelled
23 from Banja Luka to that particular point where we stopped. It could have
24 been two hours. But on one occasion they stopped the buses at a site that
25 was not familiar to me, because I had never travelled that route before
1 and I didn't know the road well. So we stopped, and they started
2 threatening us. They told us we had to leave buses. And I saw that some
3 men were hesitant; they didn't want to leave. And the guard was insistent
4 and angry, demanding them to leave. And I tried to get away, to avoid
5 that situation. Some people that sat next to me were taken off the bus,
6 and then the guard came and closed the door. That's how it was.
7 Q. And where were you and the other men who had been taken off the
8 buses placed?
9 A. Then we were transferred to another bus. When we got to the
10 other bus, we were packed very tightly, like sardines in a can. People
11 were desperate. They were frightened. They started yelling at us. They
12 wanted valuables from us, money, and so on. They told us that we had
13 nothing to worry about, that they would exchange us for their fighters.
14 That's how it was. However, I felt some tension. I had a premonition
15 that something bad was going to happen to us.
16 Q. Once you and the others were packed into that bus, where were you
18 A. They waited until the civilians left, women, children, and the
19 elderly, until they left for Travnik. And where they took us from there
20 is something that I really can't tell you. I don't know whether we drove
21 for 20 minutes or we remained in that same spot. I really can't tell you
22 that. But I know that at one point they stopped the buses. So I think
23 that they did drive us somewhere else, yes. So they stopped buses, they
24 ordered us to get off buses, they ordered us to look down, they wouldn't
25 let us look around, so that I remember -- I remember that they took me in
1 front of the bus and then they took us back, and then they lined us up at
2 an edge, where things happened later.
3 Q. Mr. Mujkanovic, I'm going to ask you to look at a photograph.
4 MR. TIEGER: And I'm going to ask that this be marked as Exhibit
5 S2, please.
6 Q. Mr. Mujkanovic, first I'm going to ask you if you recognise the
7 site depicted in the photograph. And is that the site where the buses
8 were taken?
9 A. I think it is. I think that this is the site. I'm a hundred per
10 cent sure that this is the site.
11 Q. Mr. Mujkanovic, using that photograph, if it assists you in
12 describing the events, can you tell the Judges, please, what happened
13 after you and the others were taken to this site.
14 A. When we were brought to that site, they lined us up. So they
15 took us first to the front of the bus, then back behind the bus, and then
16 at one point they ordered us to turn, and then they brought us to the very
17 edge, the very edge shown there, next to the abyss, facing the abyss.
18 Then people started screaming, yelling. I knew right away that something
19 bad was going to happen. And I can't remember to this day whether
20 somebody pushed me or instinctively I jumped myself. I just know that I
21 leaped into the abyss. And then I heard people who started crying
22 automatically, and they were shooting, even throwing hand grenades.
23 When I became conscious, I realised that through some incredible
24 luck I was not injured. I still couldn't believe the situation I was in.
25 Then I saw something in front of me. There was a rock. And it
1 immediately occurred to me that I could use that rock as a shelter. I was
2 a bit away from that rock. In front of me I saw dead people. And that
3 was my only chance, my only chance. I had to do that. So I took a body
4 of a man and I covered myself with that human body. I sheltered myself
5 with it. And then I tried to crawl to the rock. And at that moment I
6 heard somebody yell from above, "Somebody's moving down there." And then
7 they started shooting. So the dead man, whose name I don't know to this
8 day, saved my life.
9 The entire time they shot at anybody who cried for help. They
10 had no mercy. I remained there for perhaps an hour throughout that time,
11 while that was taking place. As I lay there, I tried to see where I was.
12 I saw dead people around me, wounded people around me, but I remember that
13 moment that there was a guard there who couldn't have been older than 20
14 years, and he said, "You Turks got what you deserved." He was not more
15 than 20. He laughed at the agony that we were experiencing. So that
16 after those two hours, I heard as the buses came back from the Travnik
17 direction - I don't know how far they went - and then I heard somebody
18 say, "Everything is over. Everything is over. There are no more living
19 there." They started their buses and headed back to Prijedor. It was
20 already dusk at the time. It could have been 7.30. I got up and started
21 running. I even believed that I had been surrendered. I was experiencing
22 this great fear, and I even tried to kill myself. I jumped off the rock.
23 I was completely desolate. However, I managed to get some control over
24 myself, and I headed for the forest. I spent the first night in the
25 forest, not far from the site, perhaps 600 metres away. There was a large
1 forest there, and I slept on a tree the first night.
2 The second evening, the second day, I also wandered around. I
3 hallucinated a lot. That's all I can say about that event.
4 Q. Just a couple of additional questions related to that,
5 Mr. Mujkanovic. Did you encounter any other survivors during the time you
6 were in that area, before you were captured?
7 A. On the following day, while I was wandering around, [redacted]
9 [redacted] I don't remember
10 that person's name.
11 Q. I understand that you were captured after the second night you
12 spent in that area. Where were you taken after you were apprehended?
13 A. First of all, they took me to Skender Vakuf, where I was
14 interrogated by a major. I think that was his rank. He was a major or a
15 captain. He was greying. He was between 55 and 60 years old. He beat me
16 around the head. He said, "You're a lucky man. You survived." Then I
17 found this Suljo Kahrimanovic. He was one of the first persons to be
18 brought in. We had a cell there. And then Sivac came, Medo Sivac,
19 someone who also survived, from a place near my place of birth. They're
20 all people -- most of them are from the Kozarac area. Then Bahrija
21 Jakupovic came, a neighbour of mine. And there was another man from Sivac
22 I can't remember his name. He also appeared. And then from there, from
23 Skender Vakuf, they transferred us to the hospital in Banja Luka.
24 Q. And can you briefly describe the way you were treated in the
25 hospital in Banja Luka.
1 A. In the hospital, well, they treated us worse than livestock.
2 Anyone could come at any time to beat us, to provoke us, to do whatever
3 they wanted to do to us, everything. They could do everything. One night
4 they beat me with cables. They would beat us with cables, and they would
5 order you to take your shirt off. When they hit you with a cable, this is
6 a little ironic, it's a little sad. I would rather have had a policeman
7 beat me for three days than to be beaten with a cable twice.
8 Q. [Microphone not activated]
9 THE INTERPRETER: Microphone, please.
10 MR. TIEGER: Thank you.
11 Q. Mr. Mujkanovic, I understand after your release from the
12 hospital you were eventually returned to Trnopolje camp and then left
13 Prijedor on a convoy that left Bosnia. Let me ask you now if you can
14 explain to the Judges whether you have any lingering physical or emotional
15 effects that you attribute to the events of August 21st, 1992.
16 A. Well, I don't have any physical effects. But in terms of
17 psychological effects, yes. I don't sleep well. The job I have is one
18 that I like a lot, but I don't know whether I'll manage to continue
19 working. I have great difficulty in concentrating. This has left
20 permanent traces, permanent consequences. And unfortunately, it is
21 difficult to find a remedy.
22 Q. Mr. Mujkanovic, I want to ask you one last question based on --
23 on something you said to me when we talked earlier. In spite of all that
24 you endured, can I ask you whether or not you have hope for the future in
25 Bosnia-Herzegovina, hope for the relationships between the ethnic groups.
1 A. Well, my vision is that after all those conflicts, reason should
2 be victorious. My vision is that people should start communicating
3 normally again. But there is one thing that we can't conceal. We can't
4 conceal those crimes. Each side should apologise and say that they are
5 aware of the facts. Until the war criminals are at large and still have
6 parties of their own, so long as that is the case, one can't expect there
7 to be a real and permanent peace. We're talking about the Balkans, after
8 all. But I hope that reason will prevail and that the future will be
9 better. I sincerely hope so.
10 Q. Thank you very much, Mr. Mujkanovic.
11 MR. TIEGER: I have no more questions.
12 JUDGE ORIE: Thank you, Mr. Tieger.
13 Mr. Mujkanovic, you have been called as a witness for the
14 Prosecution. I have to give an opportunity to the Defence also to put
15 questions to you, and I understand that the Defence will fully understand
16 what your position is, having been taken back to the events of August
18 Is there any need to examine the witness, to -- I wouldn't use
19 the word cross-examining but to put any questions to the witness,
20 Mr. Dimitrijevic?
21 MR. DIMITRIJEVIC: No, Your Honour, the Defence will not have
22 questions for this witness. Thank you.
23 JUDGE ORIE: Yes. Thank you.
24 [Trial Chamber confers]
25 JUDGE ORIE: Judge El Mahdi would like to put a question to you.
1 Questioned by the Court:
2 JUDGE EL MAHDI: [Interpretation] It's just a matter of
3 clarification, a minor question I would like to put to the witness.
4 When you spoke about the incident in the buses, you were in one
5 of the buses and you said with regard to that incident - and I'll quote
6 you in English - [In English] "They waited until the civilians left,
7 women, children, and the elderly, until they left for Travnik."
8 [Interpretation] What I would like to know is were you considered to be
9 civilians or were you combatants? Because at the beginning you said that
10 you had a job as a plumber and that you were a civilian. So I'm a little
11 confused on this point, and I would like to hear your comments, please.
12 Thank you.
13 A. Well, what could I say? That I was a soldier in the former
14 Yugoslavia? I didn't have a weapon. How could I have been a soldier?
15 How could I have played a military role in all of this? Naturally I was a
16 civilian. I considered myself to be a civilian. I had no weapons of any
17 kind. And I'll swear this on the Bible. If only I had had a weapon, I
18 would have been able to defend myself. But how could I have done that?
19 JUDGE EL MAHDI: [Interpretation] Thank you, Witness.
20 [In English] Thank you, Mr. President.
21 JUDGE ORIE: Yes. Mr. Mujkanovic, since I have no further
22 questions to you, I would like to thank you for having come to The Hague
23 and to have answered all questions put to you. This Chamber fully
24 understands that it might not have been easy for you to be taken back to
25 an event, to a day which has had, as you told us, quite some impact on
1 your life. Therefore, I again would like to thank you. And you are
3 Madam Usher, could you please escort the witness out of the
5 [The witness withdrew]
6 JUDGE ORIE: Mr. Tieger, I think this would be an appropriate
7 moment to have a short break. Since the Chamber thinks that it could be
8 possible to finish by today, we'd like to make the breaks not long to
9 start with. So I'd like to adjourn until ten minutes to 4.00, for 20
11 I then take it that after the break that you'll call your next
12 witness and that we'll then continue with a statement of Mr. Mrdja or
13 whatever the Defence would like to submit at that moment before coming to
14 closing arguments.
15 I'm also aware that you have asked previously for just a short
16 break after the oral statement of Mr. Mrdja, but could you do without, or
17 -- because it fits not that well in our schedule. If you need a break at
18 a certain moment, please let us know. Then we can consider it.
19 MR. TIEGER: No, Your Honour. I think we can adjust to the
20 Court's preference with regard to the breaks.
21 JUDGE ORIE: Yes. Then we'll adjourn until ten minutes to 4.00.
22 --- Recess taken at 3.31 p.m.
23 --- On resuming at 3.55 p.m.
24 JUDGE ORIE: Mr. Tieger, is the Prosecution ready to call its
25 next witness?
1 MR. RESCH: Yes, Your Honour, we are.
2 JUDGE ORIE: Thank you, Mr. Resch.
3 Madam registrar left the courtroom already.
4 [The witness entered court]
5 JUDGE ORIE: Good afternoon. Ms. Karabasic, I take it?
6 THE WITNESS: [Interpretation] Yes.
7 JUDGE ORIE: Yes. From your reaction, I understand that you can
8 hear me in a language you understand?
9 THE WITNESS: [Interpretation] Yes, I can hear you.
10 JUDGE ORIE: Ms. Karabasic, before giving evidence in this court,
11 I would like to invite you to make a solemn declaration that you will
12 speak the truth, the whole truth, and nothing but the truth. The text
13 will be handed out to you now by the usher. May I invite you to make that
14 solemn declaration.
15 THE WITNESS: [Interpretation] I solemnly declare that I will
16 speak the truth, the whole truth, and nothing but the truth.
17 JUDGE ORIE: Thank you, Ms. Karabasic. Please be seated.
18 WITNESS: SEIDA KARABASIC
19 [Witness answered through interpreter]
20 JUDGE ORIE: You'll be examined by counsel for the Prosecution.
21 Perhaps the usher could help you, because if you keep it that
22 way, it would easily fall off, the earphones. That's a common experience.
23 If it's uncomfortable, please seek the assistance of the usher. Yes.
24 Please proceed, Mr. Resch.
25 MR. RESCH: Thank you, Your Honour.
1 Examined by Mr. Resch:
2 Q. Good afternoon, ma'am. Could you please state your name for the
4 A. Seida Karabasic.
5 Q. Ms. Karabasic, could you please tell us when you were born and
6 where, please.
7 A. I was born on the 14th of June, 1965, in Kozarusa, the Prijedor
9 Q. For how long did you live in Prijedor?
10 A. Up until April 1992.
11 Q. What happened in April of 1992 that caused you to leave Prijedor?
12 A. War had already broken out in Slovenia and Croatia, and war was
13 being prepared in Bosnia and Herzegovina too. The army passed through our
14 village and opened fire. Many Serbian soldiers would go to the
15 battlefield in Croatia and would return with a lot of weapons and they
16 would open fire at night. So the inhabitants of that place were afraid.
17 I had a small child, a five-year-old child. And before that, I had a
18 tragedy in my family, so my parents wanted me to leave so that I didn't
19 have to experience the war there.
20 Q. And that tragedy was your husband's accidental death?
21 A. Yes. My husband died in the course of his duty. He had an
22 accident. He received an electric shock.
23 Q. You and your young daughter then went to Croatia and eventually
25 A. Yes. I left by bus with a lot of other women and children. The
1 route we took wasn't a normal route. It was a macadam route, because you
2 couldn't use the road that was usually used to get to Croatia. And during
3 that trip, the troops would stop us and inspect us. We had quite a few
4 unpleasant experiences.
5 Q. And in January of 1996, you returned to Bosnia; is that correct?
6 A. Yes. At the end of the war, I returned to Sanski Most and
7 continued to live there.
8 Q. Could you please tell the Chamber about the organisation you and
9 ten other people founded, headquartered in Sanski Most.
10 A. When I returned to Sanski Most or, rather, a place near Sanski
11 Most, a place called Lusci Palanka, a lot of displaced people returned, a
12 lot of Bosniaks from Prijedor returned, and I was among them. And we
13 women, single mothers, we felt it necessary to organise ourselves and to
14 help other women and orphans and the elderly, so we had the idea of
15 founding a non-governmental organisation, and we did that in June 1996.
16 We founded this organisation, which was registered in the high court in
18 Q. And the name of that organisation is the Izvor Association of
19 Prijedor Women?
20 A. Yes, that's right.
21 Q. Who was the original president of Izvor?
22 A. The first president of Izvor was Munira Fazlic. She spent the
23 entire wartime period in Bosnia. And the women who returned from outside
24 felt in some way that we should honour her in this way, give her this
1 Q. Did Ms. Fazlic have any connection to the massacre that occurred
2 at Koricanske Stijene?
3 A. Yes, she did. Ms. Fazlic passed through some time before the
4 massacre in Koricanske Stijene. Her husband and her husband's two
5 brothers remained in Trnopolje. Munira Fazlic, like all the other
6 citizens who had been expelled through Skender Vakuf towards the free area
7 of Travnik -- well, she told me that every day she looked in the direction
8 of Vlasic in hope that her husband would come.
9 Q. Do you know what happened to Ms. Fazlic's husband?
10 A. Yes, I do. Her husband left with the others in the group, and he
11 was separated with his brother on Vlasic. There was a group of 250 people
13 Q. And that was the convoy on 21 August 1992; is that correct?
14 A. Yes.
15 Q. The Izvor Association, please tell us about the association's
16 work in compiling the Prijedor book of the missing.
17 A. Our association was founded in order to help women, single
18 mothers, orphans, and the elderly. But when we started working and in the
19 course of conducting certain projects, we found out that on the whole
20 these families' greatest problems concerned the fact that family members
21 of theirs had gone missing. And although we tried to assist them with --
22 by providing them with goods that they didn't have, we found out through
23 conversations with them that the most important thing for them was for us
24 to find out where their family members who had gone missing or who had
25 been killed were actually located. So as early as 1997 we started
1 compiling information on people who were missing. We organised ourselves
2 in several places in the territory of the Federation by founding teams in
3 those places, and these teams would work on gathering information. By
4 using the media, the radio, the television and the newspapers, we would
5 inform people -- we would inform people that we wanted them to contact us
6 and to provide us with information on the whereabouts of family members of
7 theirs who had gone missing, to provide us with photographs so that we
8 could gather all this information and use this information in the course
9 of our work to locate the missing people, and we issued a first edition.
10 Only 200 copies were printed. And there are about 2.700 persons included
11 in this list of people who had gone missing. We distributed these copies
12 throughout the world, in places where our people had taken refuge, so that
13 they could also compile information on those who had gone missing, because
14 most of the people from Prijedor had been expelled and they now live in
15 over 100 countries worldwide.
16 So we'd get information back. We'd gather a lot of photographs.
17 We would correct the errors contained in the first edition. And in the
18 year 2000, we published a book on those missing from Prijedor, and this
19 includes the list of the 2.700 people missing and the list of this name --
20 of these people included 122 children.
21 Q. And you personally as part of your work, gathering names for the
22 Prijedor book of the missing, you met with a number of families who had
23 lost a family member at Koricanske Stijene on 21 August; is that correct?
24 A. Yes. I met those family members, and it's important to stress
25 that those families had a particular problem. Many people went missing at
1 one location. They didn't have any information. No one was trying to
2 find out the truth about what had happened. Up until 1997 and to this
3 very day many of these people are still persuaded that their family
4 members are still alive.
5 Q. I believe you first had contact with someone who lost a family
6 member at Koricani in 1992, while you were in Slovenia. Could you --
7 could you please tell us about that person.
8 A. It was a woman from my neighbourhood. She had gone to Slovenia.
9 And we took her in. We -- she lived with us until she could find some
10 other place. She had two children, and she told us about the event. On
11 that day, he was at Koricanske Stijene, and her brother was separated with
12 another group on that day. And her father-in-law was separated too. But
13 she pointed out that her brother had left from Trnopolje because she had
14 asked him to do so. She had persuaded him to do so. She then asked the
15 then-commander of the camp, Slobodan Kuruzovic for permission, and he gave
16 him authority to leave. She was -- he was her youngest brother and she
17 would cry every day. She felt guilty because she had called him on that
18 day and encouraged him to leave. She said that it was very difficult for
19 her to meet their parents because she couldn't look them in the eyes. She
20 didn't know what to tell them about the whereabouts of their son.
21 Q. In the year 2002, your organisation organised a memorial for the
22 tenth anniversary. Do you know if the families prior to this anniversary
23 memorial had had an opportunity to visit the site of the massacre at
25 A. No. None of the families went there up until that date. It
1 wasn't possible to go there, because it was at some distance and it wasn't
2 safe to go there. We tried to get some people to take us to the site, but
3 everyone refused to do so. They all refused to do so. So we had the idea
4 of organising a visit to that location, because in the course of our work
5 we had realised that those families wanted to confront the truth, because
6 they were still convinced that their family members were alive and they
7 could not even imagine how this event had happened. No one could believe
8 that there were no survivors. That's why we wanted to organise that
9 visit. We wanted to take them to the site so that they could see for
10 themselves. And we also wanted to draw attention to incident in question,
11 because no one spoke about Koricanske Stijene. We wanted the local
12 authorities and we wanted the international community to be put under
13 pressure. We wanted to pressurise them and to try and get someone to do
14 something about this matter.
15 Q. I believe you commissioned a video to be made of the visit that
16 the -- the people made to Koricani on the 21st of August, 2002.
17 A. Yes. We asked a young man, an amateur who was from our town, to
18 help us and to record the footage on that day, so that we would be able to
19 send videotapes to the families living abroad so that they could see for
20 themselves that we had gone to visit the site.
21 MR. RESCH: Your Honours, at this time I'd like to play a clip of
22 -- a number of clips from the video. This -- we have this on CD, which
23 we'll tender as Prosecution Exhibit S3.
24 JUDGE ORIE: [Microphone not activated] That will be exhibited as
25 S3. Do I take it that the translated text has been disclosed already to
1 the Defence?
2 MR. RESCH: I believe it has, Your Honour. And actually, the
3 transcript of the text will just be at the fifth clip, and I'll notify the
4 booth when we'll have a short portion of the transcript translated.
5 THE REGISTRAR: The transcript will be S3.1.
6 MR. RESCH: I believe we should be able to see this, this video.
7 JUDGE ORIE: Yes.
8 [Videotape played]
9 MR. RESCH: If you could just pause it there for a moment.
10 Q. Ms. Karabasic, I'll ask you a few questions while the video is
11 playing but we can also let it run during some other portions. If you
12 could just tell the Court what this first location is, and we can go ahead
13 and let the video run.
14 A. This is the location in Kozarac, the starting point from which
15 the convoy with buses started out. So we had to find a place where we
16 would gather at and start from because of security and other issues.
17 [Videotape played]
18 A. These people here are waiting for the bus to start out to
19 Koricanske Stijene.
20 Q. Approximately how many buses did you organise for that day?
21 A. In the very beginning, when we talked about organising this
22 event, we didn't know that so many people would come. We planned for
23 several buses. And we simply wanted to see how many people would sign up
24 for this event. Several other NGOs assisted us, NGOs that participated in
25 organising this event with us. So in their areas, they compiled lists of
1 people who signed up to attend. Several days after that, we saw that a
2 lot of people had signed up and we had to find additional buses. Some
3 calls were made even on the last night before the event. People called us
4 even at midnight, saying that they would like to come. However, we did
5 not have a sufficient number of buses. In the end, nine buses and several
6 private vehicles left Kozarac headed in that direction.
7 Q. I believe this is a video of the people initially walking to the
8 site. Can you describe the atmosphere on the way to the site.
9 A. While we travelled from Kozarac to Vlasic, people simply couldn't
10 wait to get there. I was on one of the buses with people there, and when
11 we got there, we had to stop at a certain point because buses couldn't
12 continue on. So we disembarked and continued on foot. People were in a
13 hurry, and one could feel that they expected they would find something
14 there, that something would be awaiting for them there, and they couldn't
15 wait to get there.
16 It is very difficult to describe that to somebody who hasn't
17 experienced that, who hasn't been around those people. They looked at the
18 rocks where there were a lot of policemen, and many of them who had passed
19 there in 1992 felt a certain fear, as if they were living through that
21 Q. What were the reactions of the family members upon initially
22 seeing the cliffs?
23 A. When they came to the site and when they were told that that was
24 the site, mothers fell to their knees, started crying. Some of them
25 wanted to leap into the abyss, and we had to keep them from doing that.
1 They were saying, "Look where my child met his end." It was terrible to
2 look down into the abyss. One couldn't even see where it ended. These
3 people were expecting to find something there. They were expecting to see
4 something down there.
5 Q. In the video, the man -- we saw a man just pointing down the
6 cliffs. Do you know what he was pointing at?
7 A. The man is pointing down. He's trying to see the remains. I
8 don't know whether he in fact saw some bodily remains, but perhaps of this
9 great desire of his it seemed to him that he had seen something that could
10 be used as evidence. Some people saw bullet traces there. I don't know
11 whether they dated back from 1992. However, they pointed to those traces
12 and said, "This is what was used to kill our children."
13 Q. Approximately how many people went to the visit that day?
14 A. There were over 500 people. Although, not all of those who
15 wished to come could come. A lot of people came from the abroad, from
16 Sweden, Germany, Denmark, Switzerland. Some people came through other
17 organisations involved in these matters, and they came and joined us
19 MR. RESCH: Your Honours, I don't hear the audio, so we'll just
20 keep proceeding as we have been.
21 Q. Do you recall the --
22 MR. RESCH: I'm sorry.
23 THE INTERPRETER: [Voiceover] Ladies and gentlemen, dear brothers
24 and sisters, esteemed guests. We've gathered here today at the mountain
25 of Vlasic through which ten years ago the members of the police, the
1 military and the paramilitary forces of Republika Srpska - or as it was
2 then called, the Serbian Republic of Bosnia-Herzegovina - expelled tens of
3 thousands of non-Serbs, citizens of Prijedor and the surrounding villages.
4 The reason, however, for us being here at Koricanske Stijene is to recall
5 one of the most horrifying crimes committed against us, residents of
6 Prijedor. On 21st of August, 1992, exactly ten years ago today, they
7 brought 253 of our fellow citizens right here, to the edge of this abyss.
8 These are the people who had been expelled from Skender Vakuf.
9 THE INTERPRETER: The interpreter is unable to hear the rest.
10 MR. RESCH: That's okay. That was the extent of the transcript
11 that I wanted. Thank you, interpreters.
12 Q. After this initial speech, some names -- all of the names were
13 read out. I won't play that for -- for time's sake today. What effect
14 did reading the names out have on the family members?
15 A. It was particularly painful for them. As this lady read out
16 names, mothers who heard their children's names read out fell to their
17 knees. One man kept asking, "Where is my son? Why isn't he on this list?
18 How come he's not on the list?" And as the lady kept reading out the list,
19 mothers kept falling down, crying. This meant that this was the actual
20 truth, that their children were gone, as their names had been on the list.
21 Q. For the visit, I believe the organisation had purchased some
22 flowers. Could you explain the purpose of the flowers on this day.
23 A. We bought 253 carnations in order to honour 253 residents of
24 Prijedor who perished that day, and we gave the flowers to the families so
25 that they could throw it down into the abyss, just as their children were
1 pushed down into it. As they were throwing flowers, people leaned down
2 above the abyss. One man who lost three brothers on that day threw down a
3 carnation that fell on a branch down below but very near to the edge, and
4 it seemed to me as if this man was ready to leap down, to follow the
5 carnation. I grabbed him by the hand and I said, "Don't jump down there,"
6 and he said to me, "Maybe this is exactly what happened to my brother.
7 Maybe he fell on a branch."
8 Q. I know you recognise some of the people in the video. I'll just
9 let it run for a moment, and then we'll stop it and I'll ask you to talk
10 about some of the other stories.
11 [Videotape played]
12 Q. Please tell the Judges who the woman is hugging, the woman with
13 the purple shirt.
14 A. The name of this woman is Fikra. Her daughter is hugging her.
15 She's helping her to stay calm. She had lost her son and husband on that
16 day, and she only had her daughter.
17 Q. There's a gentleman in this photo with a black shirt and a white
18 vest. Can you identify him, please?
19 A. This is Hilmija Fazlic. He had lost a son on that day, on
20 Vlasic. His son had been separated from the rest of the group. The son
21 was -- the son's body was exhumed several days ago from a mass grave where
22 there were a total of six bodies.
23 Q. As the crowd was walking away, what was the atmosphere like?
24 A. Many mothers and women needed to be assisted because they
25 couldn't walk. We had to transport some in ambulances and we helped the
1 others to get to the bus. One can see on this video that everybody's
2 heads were hanging down. Everybody was very sad. And because they saw
3 that something that they were hoping for was actually not realistic, that
4 it was impossible that these people had survived, and they were having a
5 very difficult time.
6 Q. When we spoke yesterday, you mentioned the rain that had started
7 to fall at the end of the day. Could you tell the Judges what you told
9 A. When we got on the buses, as we were descending the Vlasic
10 Mountain, it started raining. The clouds gathered. It rained heavily.
11 And there was silence on the bus. People were saying that the rain
12 represented tears, tears we are shedding because of our dearest ones who
13 had perished on Vlasic on that day.
14 Q. And lastly, given your extensive experience in dealing with the
15 Koricani family members, I wanted to discuss some of the issues that are
16 important to the families. First I believe you have told us that the
17 families want the perpetrators brought to justice. Is that correct?
18 A. Yes. It was very important for the families to have other
19 perpetrators brought to justice for what they had done on that day. In
20 addition to that, what is important for them is that all those who planned
21 and ordered this crime to be committed be punished as well. What is most
22 important for them is to find urgently the bodies of their family members
23 so that they can be given a dignified burial.
24 Q. Thank you very much, ma'am.
25 MR. RESCH: Your Honour, no more questions.
1 JUDGE ORIE: Thank you, Mr. Resch.
2 Ms. Karabasic, in a court of law, an opportunity is also given to
3 the Defence to put questions to you if there's any need to put questions
4 to you.
5 Is there any need, Mr. Dimitrijevic or Mr. Wachenheim, to --
6 MR. DIMITRIJEVIC: No, Your Honour, we don't have questions
7 JUDGE ORIE: Since the Judges have also no questions for you, I'd
8 like to thank you for having answered the questions put to you by the
9 counsel for the Prosecution. And I would like to thank you for coming a
10 very far way to The Hague and through your testimony make it possible for
11 this Chamber to share your experience of the families of the victims which
12 the Chamber deems of importance to hear in this case. Therefore, thank
13 you very much for having come to The Hague, and you're excused.
14 Madam Registrar, would you please --
15 THE WITNESS: [Interpretation] May I add something?
16 JUDGE ORIE: If you'd like to add something, please do so.
17 THE WITNESS: [Interpretation] I would like to say on behalf of
18 all the families that we are grateful to this Tribunal for everything it
19 had done so far. We hope that the Tribunal will continue assisting the
20 families in this way and that the Tribunal will punish all of the
21 criminals for what they had done. And we hope that none of the pleas and
22 plea bargaining would be at the detriment of the families, and we believe
23 that everybody needs to be punished for what they had done. Somebody who
24 killed 250 people cannot receive the same sentence as someone who killed
25 one person. Therefore, a maximum sentence is in order. The families
1 believe that you will follow this. Thank you.
2 JUDGE ORIE: I do understand what you just told us as expressing
3 the feelings of those you have met, and I take it that you share those
4 feelings. I can assure you that this Tribunal and everyone working in it
5 will perform its task as good as they can. That's our task. And we have
6 listened to your testimony, and it's part of what we will have to
7 consider. Thank you very much for coming.
8 Madam Registrar, would you then please escort the witness out of
9 the courtroom. Thank you.
10 [The witness withdrew]
11 JUDGE ORIE: The next issue on our agenda is a statement of
12 Mr. Mrdja. I did understand, Mr. Mrdja, that you would primarily express
13 your feelings to what happened and that you'll not enter into details as
14 to what exactly happened. Because if you would give statements on facts
15 in some detail, then it might be that we should ask you to make a solemn
16 declaration as well. If, however, your statement is about your feelings
17 and looking back to what happened, according to your guilty plea, then we
18 could refrain from asking you to make a solemn declaration. Please
20 THE ACCUSED: [Interpretation] Thank you, Your Honour. I will be
21 very brief.
22 Your Honours, thank you for giving me an opportunity at the end
23 of this trial against me to address you with several words. In
24 Yugoslavia, in a state where I was born, some 13 years ago a tragic
25 conflict broke out. I was 20 years old at the time. Just like all people
1 of my age, I desired peace and I had a number of plans for my future. The
2 last thing on my mind was war and bloodshed. I knew about the war only
3 what my parents told me, and they told me very little about the war. I
4 didn't pay a lot of attention to that. At the time I believed war to be
5 something from a distant past, something that happened way before I was
7 Frankly speaking, until the very last moment I believed that I
8 would be a member of a generation that would live its lifetime in peace.
9 I grew up in a socialist system. At school I learned about brotherhood
10 and unity between various peoples living in my country. However, I knew
11 that a number of my ancestors perished in the previous war. I knew about
12 the Jasenovac camp. However, at the time I was convinced that that was
13 part of a distant past, something that did not concern me. I had peaceful
14 relationships with my neighbours, Muslims and Croats. We lived together
15 and socialised together, and I even had girlfriends that were non-Serbs.
16 My parents never reproached me for that.
17 In the beginning of the 1990s, things changed abruptly. Radio,
18 television, press, everything was full of threats against Serbs and
19 against Muslims, depending on whose media it was. Suddenly we started
20 splitting along the lines of our thoughts and ideas at the time. It is
21 difficult to comprehend it right now. Believing that we were faced with
22 the same threat as Jasenovac was in the past, I responded to the
23 mobilisation. I was young and strong, and exactly these kinds of people
24 are needed in every army. I wanted to defend my people, and the last
25 thing on my mind was attacking somebody else.
1 In late spring 1992, I ended up in the intervention platoon of
2 Prijedor Police. Terrible things were happening in Prijedor, and I would
3 like to forget that. My neighbours and friends, Muslims, had to leave.
4 As a policeman, before the 21st of August, I escorted and was -- provided
5 security to several convoys leaving Prijedor. I cannot say that Muslims
6 fared well there, but I know that most of them reached their destination
8 In the morning of the 21st of August, I was told that I had to
9 escort another similar convoy. I didn't think that -- I apologise. I did
10 not think that anything particular was going to happen. However, that's
11 not how it was. At the order of the commander of the Intervention
12 Platoon, who later was killed at the Bihac front - and I don't wish to
13 mention his name now - we separated two bus loads of military-aged men.
14 They were killed at Koricanske Stijene between Skender Vakuf and Travnik.
15 I participated in separating and killing these innocent people. I have
16 sincere remorse with respect to that, and I wish to offer my sincere
17 apology to all the victims and their families.
18 Your Honours, I hope that you will believe me. I did not commit
19 this because I wanted to commit this or I enjoyed doing this. I did not
20 hate these people. I did it because I was ordered to do so. My
21 commander, who enjoyed great respect and had a lot of authority, was
22 present personally and issued these orders. In those moments, I could not
23 muster up enough courage to disobey the order. I can tell you now what
24 would have happened had I refused to carry out the order; I assure you
25 that they would have killed me right then. I hope that you believe me,
1 Your Honours. All of my friends from the Intervention Platoon who could
2 testify to this are afraid for their own future and they don't wish to
3 testify. I cannot reproach them for this.
4 Your Honours, in the past war, I was an ordinary rank and file
5 soldier. I did not have a rank. I fought at many battlefronts and I
6 behaved in a dignified manner. I faced many enemies and was wounded three
7 times. And it is very difficult for me to face what happened at
8 Koricanske Stijene. I asked to be transferred to another unit because I
9 did not wish to kill innocent civilians. I spent the rest of my war
10 service as a soldier who never committed anything similar to what had
11 happened at Koricanske Stijene. This is the most difficult time of my
12 past, and I would like to raise everything that had happened. However, I
13 know it's not possible. I have in the meantime married and I have two
14 children. I have lived after this in a dignified manner and have not
15 committed any offences. I know that all of those families who lost their
16 loved ones on the 21st of August, 1992 can see me only as a murderer and
17 perhaps will think that my apologies are insincere. I can understand them
18 for believing so, and I am prepared to serve time in order to pay for
19 this. I hope that my confession will aid in ensuring that such things are
20 never repeated in our territory.
21 I know that by doing so I can help in some way remove some of the
22 burden that I've been carrying for 11 years; however, I know that this
23 will stay with me until the day I die. Once again, I offer my sincere
24 apology to all of the families, and I thank you, Your Honours, for
25 allowing me to address you. Thank you.
1 JUDGE ORIE: Mr. Mrdja, please be seated.
2 THE ACCUSED: [Interpretation] Thank you.
3 JUDGE ORIE: Mr. Tieger, until 5.30 we would have approximately
4 three-quarters of an hour. That's also the time that has been scheduled
5 for closing arguments by the Prosecution. Would you be able to finish in
6 approximately three-quarters of an hour?
7 MR. TIEGER: I believe so, Your Honour, yes.
8 JUDGE ORIE: Yes. Then please proceed.
9 MR. TIEGER: Your Honour, may we begin, however, by moving
10 briefly into private session?
11 JUDGE ORIE: Yes. We'll turn into private session.
12 [Private session]
13 Pages 140-143 – redacted – private session
23 [Open session]
24 JUDGE ORIE: We are in open session again. Please proceed.
25 MR. TIEGER: Thank you, Your Honour.
1 Mr. President, Your Honours, learned colleagues for the Defence,
2 we are here today to consider the imposition of an appropriate sentence
3 for the commission of a crime that stands out even against the backdrop of
4 widespread persecution, destruction, and murder in 1992. Indeed, no
5 matter how quickly that crime is summarised, its chilling nature is
7 On August 21st, 1992, Bosnian Serb authorities organised a convoy
8 of trucks and buses to remove Muslims from Prijedor to Muslim-held
9 territory in Travnik. Many of the passengers had recently been released
10 from the brutal camps of Omarska and Keraterm. Members of the Prijedor
11 Police Intervention Squad, as you have heard, including the accused,
12 controlled the convoy. En route, they robbed the passengers of their last
13 possessions. Shortly before the convoy reached its intended destination,
14 indeed within a few kilometres of refuge, the policemen escorting the
15 convoy separated in excess of 200 military-age men from the others, men
16 who were then crammed onto two buses and driven to the location at
17 Koricanske Stijene.
18 As the Court has now seen, it is a site that symbolises the utter
19 perversity of war, a location of extraordinary natural beauty that became
20 a mass grave.
21 Acting upon orders from their superiors, the Intervention Squad
22 members removed the men from the buses, in groups of various sizes lined
23 them up, and murdered them one after another. The bodies of the dead or
24 dying which did not fall immediately into the abyss were pushed into the
25 ravine. Although the Intervention Squad attempted to finish off any
1 survivors with grenades or gunfire, as you have heard and as you have seen
2 here today, miraculously a handful survived.
3 Now, on the basis of what we have heard from one of those
4 survivors, from a representative of family members, indeed from the
5 accused himself, from the documentary evidence previously submitted
6 concerning the crime, this Court must now determine the appropriate
7 sentence. In so doing, you will be guided by a number of factors that the
8 parties have addressed in their sentencing briefs. I should note that the
9 briefs reveal no significant dispute insofar as I can determine about the
10 most important factor to be considered in sentencing, the gravity of the
11 crime, nor about the two other critical factors affecting this proceeding,
12 the entry of a plea of guilty and the cooperation of the accused.
13 Before addressing those issues, however, I would like to discuss
14 the matters about which there is some dispute. Now, a number of these are
15 relatively minor and I believe would only have a negligible impact upon
16 the sentence irrespective of how they were resolved. However, they are
17 matters potentially affecting the jurisprudence of the Tribunal and,
18 therefore, merit comment.
19 It's a lengthy list. I will run through it very quickly and then
20 assure the Court that my discussion of those issues will be as concise as
21 possible. Those matters include the following: The weight to be given a
22 crime against humanity in comparison to other crimes; age as a mitigating
23 or aggravating factor in this case; remorse; the effect of the length of
24 time between the commission of an offence and judgement; the effect of
25 incarceration in a foreign country; the issue of the vulnerability of
1 victims; the accused's position as a policeman as it may affect
2 sentencing; the issue of credit for the accused's conduct while in custody
3 or the cooperation of the Defence with the Chamber during the pendency of
4 the case; the timing of the entry of guilty plea; the psychiatrist -- or
5 excuse me, the psychologist's report; the issue of duress and orders; and
6 finally the application of the law of Bosnia and Herzegovina insofar as
7 sentencing is concerned.
8 I appreciate this is a long list, Your Honour, and as I
9 indicated, I will be as concise as possible in dealing with the issues.
10 JUDGE ORIE: Yes. If -- perhaps you and also the Defence would
11 keep in mind that the Judges have all carefully read what is in the
12 sentencing briefs. So whatever has to be added or has to be given more
13 nuance, of course we'd like to a listen to that, but it's not necessary to
14 repeat anything that is in the sentencing briefs.
15 MR. TIEGER: Thank you, Your Honour. Yes. And I have been
16 guided by discussions with Defence counsel concerning their submissions -
17 as you know, the briefs were submitted at the same time - and also by a
18 brief 65 ter.
19 First, with respect to the first issue, I would note that the
20 Prosecution does not assert that Count 3, which is charged as a crime
21 against humanity, should be given greater weight than Count 2, which is a
22 violation of the laws and customs of war. Both counts arise from the same
23 facts and should be assessed accordingly. I would also note that this
24 general issue was of course resolved by the Tadic Appeals Chamber, which
25 held that "After full consideration, the Appeals Chamber takes the view
1 that there is in law no distinction between the seriousness of a crime
2 against humanity and that of a war crime."
3 I would only note that, to the extent that any element of either
4 crime to which the accused pled guilty may be significant to the Court -
5 for example, the existence of a widespread or systematic attack - the
6 Court may consider it in its deliberations, but again, we are not urging
7 the Court to bifurcate the counts as if they came from separate incidents.
8 With respect to age has a mitigating factor, or aggravating
9 factor in a case of victim, although age can be either a mitigating factor
10 in the case of an accused or an aggravating factor based on the age of the
11 victim, the Prosecution does not assert that age should be invoked as
12 either a mitigating or aggravating factor in this case, notwithstanding
13 any suggestion to the contrary in the written submission.
14 Next, remorse. Let me note the following points about the issue
15 of remorse: First of all, it is a potential factor in mitigation that is
16 independent of a plea of guilty, independent of acceptance of
17 responsibility, and independent of cooperation, although clearly there may
18 be some overlap in the analysis. But I say that because the result is
19 that remorse must consist of something more than any one of those separate
20 and independent factors.
21 Secondly, I would note that remorse refers to a state of mind and
22 as such is relatively unique among the factors in mitigation, because of
23 its subjectivity. And in order to guard against its reduction to a form
24 of a meaningless incantation by an accused, the Chamber must consider the
25 existence of objective circumstances reflecting that state of mind. Now,
1 here the accused asserts that the conduct, the objective conduct
2 reflecting remorse, can be found in his request for reassignment from the
3 Intervention Squad shortly after the massacre at Koricanske Stijene.
4 JUDGE ORIE: May I ask you a question in this respect, and
5 perhaps also address the Defence at the same time. I think in the
6 sentencing brief it's also the Defence has said that the accused has asked
7 to be transferred to another unit, and reference is at that very moment
8 made to Annex -- let me just try to find it. I think it was Annex -- I'm
9 just looking for the right footnote. He requested to be transferred --
10 look at page 13 of the English version. And in footnote 50 you refer to
11 the certificate of the Ministry of Defence, Department of Prijedor. I
12 have, just as a matter of factual basis of -- of the argument which I find
13 in the sentencing brief and which is addressed by the Prosecution, could
14 you indicate to me where exactly that document says that he asked to be
15 transferred rather than that he served at a different ...
16 Perhaps meanwhile you could also solve another problem I noticed.
17 That is, that following -- let me just see. In this document, I have some
18 difficulties to -- to reconcile the original version of the translation.
19 Perhaps you could look at it. It's pages -- the ones that have been
20 filed, it was page -- Annex A, number 8, pages 785 and 786. I have some
21 difficulties, first of all, to find where the document says that he -- he
22 himself asked to be -- be transferred to another unit.
23 And the second problem is that 785 doesn't look very much as an
24 original of what is presented as translation in 786. It just gives you
25 one clue -- one document says that -- the one you referred to, the English
1 version, is a document of the 29th of July, 2002; whereas, the original
2 seems to be a document of 16th of April of 2003. And also for other
3 reasons it's not easy to reconcile one document being the translation of
4 the other.
5 Could you please first -- because that's the factual basis of the
6 issue Mr. Tieger addresses at this moment.
7 MR. DIMITRIJEVIC: Thank you, Your Honour. I'm afraid that I
8 steal time from Mr. Tieger, but I --
9 JUDGE ORIE: We will compensate that.
10 MR. DIMITRIJEVIC: Okay. Maybe it is not -- you misunderstood
11 what -- what we said. We didn't say that there was some official request
12 and in this time it wasn't possible, but we only put the evidence from
13 which it is visible that he changed the unit in that exact time, and that
14 is the 9th of September from 1992. But official request, there was not.
15 In addition to this claim, we have also other evidence, but I am afraid
16 that we have to go to private session again.
17 JUDGE ORIE: Yes. If necessary, we will do so. Perhaps you --
18 but then perhaps the other question, whether 785 is the original of what,
19 of an English text we find in 786.
20 MR. DIMITRIJEVIC: Also, Your Honour, frankly I don't have any
21 kind of translation. There is only the English version of sentencing
22 brief. I never -- I never sent anything in -- but translation of
23 documents, that's another issue.
24 JUDGE ORIE: Well, you are referring in your sentencing brief to
25 the document which bears the number as I see it on 786, which is without
1 any doubt a translation. It's at least an English text. And all the
2 annexes to the sentencing briefs, I always find first the English and then
3 what appears to be the original, apart from on pages 786, where I see an
4 English text, which seems not to be the translation of the next page,
5 which is 785. And if it's not a translation of 785, I cannot understand
6 785, because I've got no translation. I think that both documents deal
7 with a similar matter, since it seems that similar dates appear in both
8 documents, but one is certainly not a translation of the other.
9 Perhaps you take your time during the break in order to clarify
10 this issue and --
11 MR. DIMITRIJEVIC: Yes, please.
12 JUDGE ORIE: Yes. If you'd need to know exactly what it is, I
13 could -- have you found them?
14 MR. DIMITRIJEVIC: [Microphone not activated] I know what you
16 JUDGE ORIE: Okay.
17 MR. DIMITRIJEVIC: And I will try.
18 JUDGE ORIE: Okay. Then, Mr. Tieger, although it has not been
19 fully clarified, please proceed. Or do you first want to go into private
20 session to further explain?
21 Okay. Please proceed.
22 MR. TIEGER: Indeed, Your Honour, that was one of the points I
23 wanted to raise with the Court about its own efforts to assess the weight
24 to be given the objective circumstances cited by the Defence in support of
25 the distance of remorse. I would also note a couple of other factors that
1 may be of benefit to the Court in making that assessment.
2 One other factor is that the members of the Intervention Squad
3 were all dispatched from Prijedor shortly after the incident as part of
4 the cover-up of the crime. Another factor which may cut in the --
5 JUDGE ORIE: May I again ask, in order to avoid whatever
6 confusion, I take it that you are - let me just find my notes - that you
7 are referring to material in support of the indictment, a letter of Mr.
8 Simo Drljaca in which he explains that on from the 9th of September, 1992
9 all police officers that were involved -- is that the source?
10 MR. TIEGER: Yes, Your Honour.
11 JUDGE ORIE: Mr. Dimitrijevic, that's also something that came
12 into my mind. Just in order to assist you, that would be page 33 of the
13 material supporting the indictment. That's a letter from Mr. Simo Drljaca
14 which reads - I'll just confront you with it - "We are unable to
15 investigate the alleged killing of a number of people of Muslim
16 nationality in the area of Koricanske Stijene because all the policemen
17 who escorted the convoy to Travnik - and then it's unclear whether it says
18 the 21st of August - have been in the battlefield of Hasan Pijesak since 9
19 September 1992."
20 I take it you were aware of the existence of this disclosed
21 document, and the emphasis on the request to be transferred briefly after
22 the event at Koricanske Stijene does not address in whatever way the
23 existence of at least one document which seems to indicate that all police
24 officers on from the 9th of September were far away from the area of
25 Prijedor and were now in Han Pijesak so that therefore the -- I would say
1 the exclusivity of the step taken by Mr. Mrdja, apart from whether it was
2 his step - because that's not documented by this -- by this -- by the
3 annexes - whether that would need any further comment, because the Chamber
4 has to decide on the basis of probability. It's -- you invoke it as a
5 mitigating circumstance. So I wonder how in your view we would have to
6 deal with your submissions at this moment compared to what has been
7 presented in support of the indictment when confirmation was sought and
8 which material is known to you, I take it.
9 MR. DIMITRIJEVIC: If I may, Your Honour. It's clear that Darko
10 Mrdja was on the battlefield in Han Pijesak. And after the 21st of
11 August, I think the 24th of August that he went to Han Pijesak with all
12 other police officers from the Intervention Squad and that is not in
13 dispute. But he was wounded on that -- on that battlefield, and he went
14 back to Prijedor, and after that he made a request to go to military unit.
15 I didn't really know that this you will find as some kind of collision
16 that document signed by Simo Drljaca, and the document signed in Ministry
17 of Defence, because I don't see any -- any dispute between those two
18 documents. But now I am in a position only what I can call Mr. Mrdja to
19 testify about that event that he was -- that he was wounded in the -- that
20 he was as other members of Prijedor Intervention Squad, he was on the
21 battlefield in Han Pijesak, he returned back home because he was wounded,
22 and after that he -- he asked to be transferred to another military unit.
23 That's -- that's how we reconcile all of these things what you put on the
24 table right now.
25 JUDGE ORIE: I think there's no contradiction. But we understood
1 your argument to be that briefly after the event happened, that Mr. Mrdja
2 had applied for being transferred to another unit, and that's the dates we
3 find on both of this, both the original and the translation of that
4 document, and it -- it gave the impression - let me express myself
5 carefully - that this was a specific -- a specific request made by
6 Mr. Mrdja. But I now do understand that there's no misunderstanding - at
7 least, that's what you just told me - that on the 9th of September - which
8 is two weeks after the event. And we find the 9th of September also in
9 the translation and also in the original of which I do not know exactly
10 what it is - that all police officers involved in this incident were at
11 Han Pijesak.
12 MR. DIMITRIJEVIC: Your Honour, and that was the response of Simo
14 JUDGE ORIE: Yeah. And I thought you said that you didn't
15 dispute that. But let me just check that.
16 He went to Han Pijesak with all other police officers from the
17 Intervention Squad. That's what you said, according to the transcript.
18 MR. DIMITRIJEVIC: Yes, I said that.
19 JUDGE ORIE: Yes.
20 MR. DIMITRIJEVIC: That is exactly what I said. But we are
21 talking now about 9th September.
22 JUDGE ORIE: Yes.
23 MR. DIMITRIJEVIC: If I understand you correctly. And when he
24 went to Han Pijesak, it wasn't 9th September; it was a few days after the
25 21st of August. That's -- and we consider also 9th September as something
1 that is very close to 21st of August. It's not -- that's how we consider
3 JUDGE ORIE: Yes. Okay. Please proceed.
4 I'm trying to clarify factual basis for your argument now and
5 then. And of course, I'll take into consideration that this interrupts
6 the -- your argument.
7 Please proceed, Mr. Tieger.
8 MR. TIEGER: On that same subject, Your Honour, just a couple of
9 additional points that may be of benefit to the Court in making its
10 assessment. And I think they may be considered as countervailing points,
11 but I believe I need to bring them to the Court's attention. One is the
12 fact that insofar as we can determine the accused, unlike at least some of
13 the other perpetrators, did not return to the Prijedor Police after Han
14 Pijesak. The other factor, I note from the jurisprudence, is that
15 Chambers have traditionally considered the statement of the accused in
16 court, both to -- as an opportunity to assess interpersonally the apparent
17 contrition and also, I think, as an objective contribution to the extent a
18 public expression of remorse can be. So I offer that to the -- to the
19 Court for its use in assessing this factor.
20 I move now to the Defence submission that the length of time
21 between the criminal conduct and the judgement is a factor in mitigation
22 in this particular case. The Defence cites three sources; a United States
23 supreme court case, a 1931 commentary, and German law.
24 The US Supreme Court case, we submit, is entirely unhelpful in
25 the analysis here because it addresses a case in which the Prosecution
1 affirmatively sought procedural advantage by repeatedly requesting delays
2 in the case.
3 JUDGE ORIE: You're now referring to Barker versus Wingo?
4 MR. TIEGER: Yes.
5 JUDGE ORIE: Yes.
6 MR. TIEGER: The commentary, we also submit, is similarly
7 unhelpful because it concerns itself with the adverse impact on
8 prosecutive objectives of a delay, and it suggests that prosecutive goals
9 and objectives are undermined by a delay in the process. Now, whether
10 that's true or not, it is surely not a factor that accrues to the
11 mitigation of an accused's sentence.
12 So I turn now to the German law, which does appear to take the
13 position that the passage of time between the criminal conduct and the
14 judgement may be a factor in mitigation of sentence. The -- the only
15 rationale cited by the Defence, however, and the only rationale we were
16 able to find in the materials available to us, looking at the case cited
17 by the Defence, is that delay can be an important mitigating factor
18 because the State's need to punish diminishes over time. And insofar as
19 can be gleaned from the Defence brief, that means that essentially that
20 the risk to society from an individual perpetrator diminishes over time,
21 particularly if that perpetrator, while passing the time from the criminal
22 conduct has not engaged in further criminal conduct. That rationale, I
23 think, has limited utility here.
24 The deterrent impact of Prosecution -- excuse me, of Tribunal
25 prosecutions and sentences is not limited or even primarily focused on the
1 individual perpetrator because, for the most part, the circumstances that
2 gave rise to the criminal conduct are -- cannot reasonably be expected to
3 recur for that particular individual. Instead, the deterrent effect of --
4 and the deterrent objective of prosecution -- of Tribunal sentencing is
5 aimed at those elsewhere who may find themselves in a similar position and
6 by imposing sentence in an international setting, the Tribunal intends to
7 say that such conduct will not be tolerated and it will receive
8 appropriate punishment. That objective, the Prosecution submits, is not
9 diminished over time and the rationale that appears in the German domestic
10 cases is not useful or strongly applicable here.
11 If I may, let me turn to the question of incarceration in a
12 foreign country, which the Defence also cites as a factor in mitigation.
13 They contend that serving time in a foreign country constitutes a
14 particular hardship that should be reflected in a reduced sentence for two
15 reasons: First, because the accused would not speak the language of the
16 country of incarceration; and second, because he would not receive visits
17 from family and friends.
18 We have noted that the only authority cited in support of that
19 proposition is a German case, a case which itself asserts that language
20 difficulties, the first reason in support of that case, are of reduced
21 significance if a long-term prison sentence is imposed or anticipated; the
22 kinds of sentences we deal with here.
23 JUDGE ORIE: May I again interrupt you, Mr. Tieger, because I'm
24 trying to follow your argument. I take it that you are referring to the
25 case referred to in footnote 66.
1 But I would first like to ask the Defence: It gives as the
2 source BGH St, which stands for criminal law. Should I address you? Yes.
3 But on number 43 -- number 23 is a case about the costs of the Defence; on
4 the other hand, on page 234 -- well, as a matter of fact, on page 233,
5 there appears a case which is published under number 35, which appears to
6 be the one you're referring to. Is that correct?
7 MR. WACHENHEIM: Your Honour, we are talking about the impact
8 that serving a sentence in a foreign country has?
9 JUDGE ORIE: Yes.
10 MR. WACHENHEIM: Okay. May I just check, because I have the
11 commentary with me and there might have been a mistake in --
12 JUDGE ORIE: Yes. Let's first check whether we're all talking
13 about the same case, because the reference is not clear.
14 MR. WACHENHEIM: I'm sorry, I'm still looking for it.
15 JUDGE ORIE: Yes. Yes.
16 Well, perhaps, Mr. Tieger, you will continue, and then we'll take
17 it that we are referring to 43, number 35, instead of 23; although, it
18 would save a lot of time, I can promise you, if the quotations are
20 Please proceed.
21 MR. TIEGER: Thank you, Your Honour.
22 So our first point is that when long-term confinement is
23 anticipated, the language problem is relatively quickly resolved and over
24 the long term has a relatively negligible impact, according to the very
25 case cited by the Defence.
1 Secondly, we have noted the following: That the cases cited by
2 the Defence assert explicitly that it is -- that confinement in a foreign
3 country is not sufficient in and of itself to show a particular hardship
4 or to demonstrate that the accused or defendant in that case will suffer a
5 particular hardship. Instead, the German case law cited appears to hold
6 it depends on the particular circumstances and personal circumstances of
7 the accused. Absent a particularised showing of the hardship that would
8 result from such confinement, according to the cases cited by the Defence,
9 there is no basis for a claim in mitigation. If -- if generalised
10 suggestions about confinement, rather than specifics, are sufficient, then
11 the Prosecution would -- would note that the countries that have agreed to
12 accept convicted accused from this Tribunal are known to be among those of
13 the most progressive penal systems in the world, and therefore we would
14 submit relatively beneficial circumstances could be anticipated, rather
15 than hardship. Now, this may or may not turn out to be specifically true,
16 but it is as reasonable a generality, we submit, as one that the Defence
17 offers. Absent a particularised showing, there's no basis for such a
18 claim in mitigation.
19 And finally, we would note that every accused in this institution
20 will serve time in a foreign country and that -- that factor is intrinsic
21 to and already subsumed by the Tribunal's existing sentencing practice.
22 Your Honour, before turning to the next issue, this may be an
23 appropriate time for a break, but I would certainly leave it to the Court.
24 JUDGE ORIE: I hesitate to ask you, because I've interrupted you
25 several times. How much time would you still need, Mr. Tieger, do you
2 MR. TIEGER: I would imagine approximately 15 to 20 minutes.
3 JUDGE ORIE: 15 to 20 minutes.
4 I'm afraid that that would not do with the tapes, and also the
5 interpreters might get tired. If you could find a suitable moment, either
6 here or within the next five minutes, then.
7 MR. TIEGER: This is fine, Your Honour.
8 JUDGE ORIE: Okay. Then we'll adjourn. Let's -- since we'd like
9 to finish by 7.00, let's see whether we couldn't start at ten minutes to
11 --- Recess taken at 5.34 p.m.
12 --- On resuming at 5.52 p.m.
13 JUDGE ORIE: Mr. Tieger, please proceed. I expect you to finish
14 shortly after five past 6.00.
15 MR. TIEGER: The Prosecution in its sentencing brief asserted
16 that the Kvocka case supports the proposition that committing crimes while
17 in the position of a police officer is an aggravating factor. The Defence
18 has taken the position that the Kvocka judgement actually turns on other
19 facts. We have reviewed the judgement again and take heed of the Defence
20 position that it is not precisely on point because of the different
21 factors emphasised in that case. In that case, the Chamber focused on the
22 impact that the three accused who were -- positions were found to have
23 aggravated the crime, had on other guards in the institution.
24 Nevertheless, we feel we must emphasise the heightened powers and
25 responsibilities that attach to the police -- position of policeman and we
1 would point the Chamber to United States sentencing guideline
2 jurisprudence for an example of a national jurisdiction where the position
3 of police officer may be seen as an aggravating factor.
4 With respect to vulnerable victims, also a factor cited by the
5 Prosecution as an aggravating factor. The Defence position, as we
6 understand it, is the Plavsic case has held that it is not an independent
7 factor but is instead subsumed under the overall gravity of the offence.
8 It should first be noted in that respect that the Plavsic sentencing
9 Chamber explicitly stated that the vulnerability of the victims is indeed
10 capable of amounting to an aggravating factor. In that case, however, it
11 was held to be subsumed within the overall gravity of the offence and
12 basically considered under that particular rubric.
13 Now, in some sentencing systems, where there is a quantifiable
14 value attached to a sentencing factor, then the question of where that
15 circumstance falls and under which factor it's assessed, whether the
16 overall gravity of the offence or under a specific sentencing -- a
17 specific aggravating factor can have a quantifiable impact on the
18 sentence. But in a system such as ours, where the question is whether or
19 not the Court should assess that as a significant factor, I think it is of
20 little moment whether it falls under the overall gravity of the offence or
21 whether it's looked as a potential "aggravating factor" so long as the
22 Court considers it and assesses it with its proper weight and accords it a
23 proper evaluation, and that's what we seek here.
24 Very quickly with respect to behaviour and good conduct while in
25 custody or the issue of counsel's cooperation with the Court, we recognise
1 they have been cited in various cases. It's our position, however, that
2 those are not factors which were intended to fall within the meaning of
3 mitigated sentences. In the first place, accused persons receive credit
4 for appropriate behaviour while in custody, both in the form of
5 appropriate privileges and ultimately in the form of good-time credits;
6 and with respect to cooperation with the Court, we feel that that's an
7 obligation of the lawyers as officers of the court and one which is not
8 intended to be invoked as a mitigating factor.
9 A question has been raised about the timing of the entry of the
10 plea, and the Defence has asserted that a plea would have been entered at
11 an even earlier stage had it -- had discussions with the Prosecution
12 proceeded in a different way and had the -- more specifically, had the
13 indictment been framed in a different manner. I note, first of all, that
14 I don't think there's been any suggestion that the Defence should receive
15 less credit because of the timing of the plea. So I'm not sure how much
16 weight they seek to be attached to that factor. But irrespective of how
17 much weight they seek, I don't think the record supports the invocation of
18 that circumstance as a mitigating factor. As it stands, the record shows
19 little more than fruitless discussions between the parties. In addition,
20 the assertion that the language -- the factual allegation language of the
21 indictment was the only factor standing between the plea of not guilty and
22 a plea of guilty, I think is contradicted by the fact that the plea
23 agreement itself contained more factors than that and -- and obviously the
24 resolution of the case through a guilty plea required more discussion than
25 simply about the factual language of the indictment.
1 There's been some discussion about -- some allusion, at any rate,
2 to duress, and we really think we should -- any evaluation of that issue
3 must begin with the distinction between duress and the issue of following
4 orders. Duress within our jurisprudence means imminent threats to the
5 life of an accused if he refuses to commit a crime. And obviously doesn't
6 refer to the more commonplace and everyday use of the term. It is our
7 position that the facts as asserted by the Defence do not support duress
8 within the meaning of the Tribunal's jurisdiction.
9 We would point the Court to the Erdemovic case and cite the
10 contrast between the circumstances of those two cases. In the Erdemovic
11 case, the accused refused the order and then was expressly told that if he
12 did not comply he would be killed. That is not the scenario that unfolded
13 here. The suggestion that such a risk nevertheless existed is clearly
14 more speculative than the circumstance cited and relied upon in Erdemovic.
15 And furthermore, it should be evaluated at least in the context of the
16 accused's asserted request to leave the Intervention Squad based on the
17 events at Koricanske Stijene.
18 But I cited the distinction between "duress" and "following
19 orders," and that should be pursued. Article 7(4) of the Statute of the
20 Tribunal provides that the fact that an accused person acted pursuant to
21 an order of a government or a superior may be considered in mitigation of
22 punishment. Now, the Prosecution accepts that the accused was acting
23 under orders. As a general matter, we note that the mere fact of
24 receiving an order does not necessarily reduce an accused's culpability
25 for a crime. One can readily imagine a circumstance where a superior
1 gives an order to a subordinate who is as fully committed to the objective
2 as the superior and the -- a fulfilment of the order indicates no more
3 than the realisation of a mutually desired objective. Here, however, we
4 accept that the accused had good relations with his Muslim neighbours
5 before the conflict, and we -- more importantly, we accept that his
6 involvement in the Intervention Squad and in the crimes to which he pled
7 guilty reflected his acceptance of the authority of the Bosnian Serb
8 leadership from top to bottom and the goals and the rationales they
9 espoused. And to the extent that the mitigating impact, the mitigating
10 effect of 7(4) reflects the distinction that must be made between leaders
11 and the person they use as tools to implement their illegal objectives,
12 then this factor is relevant here for the Court's consideration.
13 I will only turn briefly to the psychiatrist's report. I'm not
14 going to question Dr. Gallwitz's expertise, but perhaps for reasons beyond
15 his control, I think the report is superficial and betrays a lack of
16 understanding of the circumstances of the conflict or of the offence. And
17 I will only add that -- that the -- the focus of the report on the
18 distinction between a kind of platonic ideal state in which a wholly
19 independent judgement can be made, a sort of glass-bubble scenario, is
20 contrasted with the number of factors or number of influences including
21 age, indoctrination, the brutality of war, obedience, all of which, I
22 submit, are essentially -- or essentially represent a litany of the
23 circumstances of war applying to everyone involved in that conflict.
24 Finally, with respect to the factors I wanted to enumerate and
25 then I will address the other fact, the other two factors I mentioned,
1 that's the application of BiH law, of Bosnian law. As I understand the
2 Defence submission, they are suggesting the following: That there were
3 two kinds of penalties available in Bosnia in 1992; one up to a period of
4 15 years, the other in Article 38 provided that the Court could impose a
5 sentence of imprisonment for a term of 20 years for criminal acts eligible
6 for the death penalty. It's the Defence's position that once the death
7 penalty was abolished, it therefore left no hook for that provision. And
8 because, in their view, a term of 20 years could only be imposed for
9 criminal acts eligible for the death penalty, then the sentencing law
10 reverted to the more lenient 15-year provision.
11 Now, we submit that that would clearly reflect a kind of anomaly
12 in the law and an odd technicality in violation of the spirit of the law,
13 which indicates that there's a death penalty but the Court could also
14 impose 20 years. One would find it odd that the abolition of the death
15 penalty would similarly be intended to undercut the -- the penalty -- the
16 non-death penalty provision of that same law. And, in fact, that rational
17 approach to legislation is indeed found in the law, we submit. The
18 Defence cited Article 38. They did not cite Article 37, which provides
19 that the death penalty may not be imposed as the only principal punishment
20 for a certain criminal act. And that was in effect at the same time that
21 Article 38 came into effect. It's our submission that Article 37 reflects
22 the rational spirit, rational interpretation of the law, that is, that
23 these are alternative personalities, that for the gravest crimes the Court
24 could impose a sentence of either 20 years or the death penalty. The
25 abolition of the death penalty simply meant that now the Court could only
1 impose the 20 years. That's our submission with respect to BiH law.
2 Your Honour, it's my responsibility at this point, I think to
3 address the principal factors affecting the determination of sentence in
4 the case; the gravity of the offence on the one hand and the acceptance of
5 responsibility through a guilty plea and cooperation on the other. In our
6 sentencing brief, we have cited the applicable case law in this
7 institution regarding the significance of the gravity of the offence. I
8 will only state that the -- that Chambers have over and over reaffirmed
9 the principal that it is the gravity of the offence, it is the primary
10 consideration in the imposition of sentence. And we have also highlighted
11 for the Court in our sentencing brief the factors which the Court must
12 consider in making that assessment, essentially including the individual
13 circumstances of the crime, as it was stated in the Krstic case. This
14 presupposes taking into account quantitatively the number of victims and
15 qualitatively the suffering inflicted on the victims.
16 The gravity of this crime, Your Honour, is perhaps best
17 exemplified by the sheer impossibility of doing that which I know every
18 member of this Chamber would seek to do, and that is consider individually
19 the victims. This impossible task, we submit, reveals perhaps more
20 clearly than anything else the magnitude of this crime. Nevertheless, in
21 making that effort, we urge this Chamber, as we indicate in our brief, to
22 consider the despair of those who were torn from their loved ones a short
23 distance from safety, the terror of those who -- who waited while their
24 comrades fell, and the agony of those who did not perish immediately but
25 died in -- died slowly of their injuries and of exposure.
1 And of course, the Court must also consider those who survived
2 and the indirect victims, the families.
3 I then turn to the accused's entry of plea and his cooperation.
4 I will won't go beyond the details already provided to the Chamber
5 earlier, and I will leave any more detailed submissions to the Defence.
6 It's my obligation, however, to observe, for the benefit of this Chamber,
7 that this is a factor of considerable importance and that the accused has
8 substantially and meaningfully cooperated in a manner that merits
9 substantial consideration.
10 Your Honours, we have attempted to assess and to balance all of
11 the factors that are relevant to sentence and that affect the imposition
12 of sentence here, and we've done that in full recognition of the fact that
13 there is no single sentence that can fully satisfy all of the sometimes
14 competing considerations that apply to sentencing in any given case. On
15 the one hand here, even the maximum sentence cannot fully capture the
16 gravity of the crime. And on the other hand, crimes against too many
17 other victims will go completely unredressed unless this institution is
18 able to deploy its resources in the most efficient and most effective
19 manner, including securing the cooperation of insider witnesses.
20 In addition, I should note, as a recent editorial observed about
21 information from insider witnesses and from perpetrators, that information
22 provides a truth that the international community and history could
23 otherwise not have acquired.
24 So in this case, the Prosecution has considered what has been
25 accomplished by this plea of guilty and acceptance of responsibility, and
1 it includes some of the following factors: One of the most significant
2 crimes of this conflict can no longer be denied or simply dismissed as the
3 responsibility of a few madmen. This crime was committed pursuant to
4 orders, orders of the authorities, and that fact, Your Honours, must be
5 incorporated into an understanding of the conflict of anyone in the region
6 who has the courage to inquire.
7 I think we know that in a country where the only hope for the
8 future is that its people can live together, the first step, the
9 fundamental step, is an acknowledgment of the suffering and the crimes of
10 the past. I think it's fair to say that the accused's acceptance of
11 responsibility and his cooperation have struck a blow against a
12 long-standing wall of denial, a wall that must eventually either fall or
13 that will forever block the path to the future.
14 Your Honours, for all of the reasons I've cited and for those
15 which appear in our sentencing brief, the Prosecution respectfully
16 reaffirms its recommendation that a sentence be imposed in the range of 15
17 to 20 years. Thank you very much.
18 JUDGE ORIE: Thank you, Mr. Tieger.
19 Before I give the opportunity to the Defence for their closing
20 arguments, may I just ask you. There's one issue; you relied several
21 times on the impact of the -- of these events on the families. There is,
22 however, jurisprudence in this Tribunal in the case of the Prosecutor
23 versus Krnojelac where it is specifically said that such effects - that's
24 effects not on the victims themselves but on the family members - are
25 irrelevant to the culpability of the offender and that it would be unfair
1 to consider such effects in determining sentence. Have you thought about
2 that or will you give it some thought when the Defence gives its closing
3 argument? Have you considered that there is at least one decision in this
4 Tribunal that would oppose against taking into consideration what you said
5 we should take into consideration?
6 MR. TIEGER: Your Honour, I -- thank you for the opportunity to
7 address that. I will tell you candidly that that matter is one that was
8 not fully briefed. I would welcome the opportunity, because I think it is
9 a significant issue, to respond to the Court, the Court's inquiry in a
10 more fulsome way. I could certainly offer the Court our position on it
11 and our reaction to Krnojelac. But if the Court would permit, I would ask
12 for the -- for permission to submit a more reasoned and well-researched
14 JUDGE ORIE: Yes. I do understand that I've surprised you a bit
15 with it.
16 Let's see, on the other hand, there's also a major interest to be
17 served by finishing by today, so let's -- you could at least give it some
18 thought --
19 MR. TIEGER: Thank you, Your Honour.
20 JUDGE ORIE: -- whether you would agree with this case or not.
21 Mr. Dimitrijevic, is it you who is going to give the closing
22 argument of the Defence?
23 MR. DIMITRIJEVIC: Yes. Thank you --
24 JUDGE ORIE: Yes. Please proceed.
25 MR. DIMITRIJEVIC: -- Your Honour.
1 Before I start with my closing arguments, you put me, Your
2 Honour, one question regarding the documents in the sentencing brief --
3 JUDGE ORIE: Yes.
4 MR. DIMITRIJEVIC: -- attached to the sentencing brief. And I
5 looked at that. I don't know why, but page 786 is the English version of
6 document under the page 789. And I didn't find page 785, because we
7 didn't put those page numbers. That's --
8 JUDGE ORIE: Yes.
9 MR. DIMITRIJEVIC: So that's basically -- if you will allow me, I
10 will proceed.
11 JUDGE ORIE: Yes. Please proceed.
12 MR. DIMITRIJEVIC: Honourable Judges, learned colleagues from the
13 Office of the Prosecutor, this Tribunal was established in 1993, in the
14 middle of the war that took place in Bosnia and Herzegovina as a response
15 by the international community to the massive violences of humanitarian
16 law in the former Yugoslavia and particularly Bosnia and Herzegovina. The
17 main goal --
18 THE INTERPRETER: Could Defence counsel please slow down a little
19 for the interpreters.
20 MR. DIMITRIJEVIC: Effective measures --
21 JUDGE ORIE: May I ask you to slow down a little bit.
22 MR. DIMITRIJEVIC: Okay.
23 JUDGE ORIE: And at the same time ask, perhaps, Mr. Wachenheim to
24 check the numbers.
25 I'll give you what is 789 in my file. I'll give you what is 785
1 in my file, which looks very much as if it would be 789, because 5 and 9
2 are easily to be -- if you could please return it to me later.
3 Please proceed.
4 MR. DIMITRIJEVIC: In resolution number 808, dated the 22nd
5 February, 1993, the Security Council of the United Nations, inter alia
7 "Expressing once again its grave alarm at continuing reports of
8 widespread violations of international humanitarian law occurring within
9 the territory of the former Yugoslavia, including reports of mass killings
10 and the continuance of practice of `ethnic cleansing'."
11 We think that one of the events that gave rise to this attitude
12 of alarm by the Security Council and caused it to establish this Tribunal
13 was the Mount Vlasic massacre in Bosnia-Herzegovina on 21st August, 1992.
14 On that day, a convoy was organised by authorities in Prijedor. Almost
15 2.000 non-Serbs were transported to Travnik, a town that was under the
16 control of the Army of Bosnia and Herzegovina, which was loyal to the
17 government in Sarajevo. However, two buses from this convoy, loaded with
18 military-aged men, unfortunately never reached their destination. They
19 were less than 10 kilometres from the front line that divided the Army of
20 Bosnia and Herzegovina and from the Army of Republika Srpska when they
21 were separated from the rest of convoy. While the rest of the convoy
22 continued its journey to Travnik, members of the Intervention Squad, among
23 them Darko Mrdja, took the two bus loads of men to a place nearby known as
24 Koricanske Stijene, where they executed them.
25 The number of dead will probably never be accurately established.
1 Estimates are that between 160 and 228 men were executed. Every human
2 life is unique and unrepeatable. Human lives cannot be treated as mere
3 numbers. That is why the Defence from the very beginning did not insist
4 on establishing of accurate number of murdered victims, because from our
5 point of view it is not realistic that this number will be ever reached.
6 Out of any dispute is that this massacre happened and that a large number
7 of people were killed.
8 By a miracle, 12 men survived. We had an opportunity to hear one
9 of them, Midhet Mujkanovic at this sentence hearing. Any comments about
10 this emotional testimony is superfluous. The Defence does not want to
11 deal with the history of the territory of Bosnia and Herzegovina, where
12 transformation from victim to perpetrator have repeatedly taken place
13 throughout history during the periods between wars. Respectfully, this
14 Trial Chamber had a lot of opportunities, through other cases, and on the
15 basis of its own studying to learn a lot about history, not only Bosnia
16 and Herzegovina but the whole former Yugoslavia.
17 Bearing in mind its responsibilities, the Defence wants to draw
18 the attention of this Honourable Trial Chamber to facts that are, from our
19 point of view, relevant for sentencing in this case. And we shall take
20 this opportunity and examine the points that we -- that were raised by our
21 learned colleagues from the Office of the Prosecutor.
22 Article 24, paragraph 2 of the Statute is a starting point in
23 sentencing. It directs, inter alia, that Trial Chambers should take into
24 account the gravity of the crime and individual circumstances connected
25 with the accused. To apply this article correctly, as the condition sine
1 qua non, this Honourable Chamber must take into account the circumstances
2 of Darko Mrdja. This is logical, because otherwise all who had
3 participated in any form in this crime will liable -- will be liable for a
4 crime with the same gravity.
5 Both crimes that Darko Mrdja is accused originate from the same
6 event; murder, a violence of the laws and customs of war, punishable under
7 Article 3 of the Statute that related to the murder of a large number of
8 men, estimated in excess of 200, and inhuman acts (attempted murder), as a
9 crime against humanity, punishable under Article 5 of the Statute, related
10 to 12 survivors of same event. Darko Mrdja pled guilty on both counts and
11 he was informed about differences between those two crimes. However,
12 following such indictments -- indictment, the Defence concludes that in a
13 situation wherein no one survived, Darko Mrdja would be accused only for
14 one count, murder, a violation of the laws and customs of war, punishable
15 under Article 3 of the Statute. That is why the Defence considers that a
16 crime against humanity, punishable under Article 5 of the Statute
17 (attempted murder), although being grave, in the present case does not
18 bear any additional weight of its own. This does not mean that Darko
19 Mrdja or his Defence contests in any way the existence of conditions
20 necessary to apply Article 5 of the Statute.
21 The Defence welcomes the attitude of the OTP, given in paragraph
22 16 of their sentencing brief that Darko Mrdja was not an architect of the
23 massacre but only one of those who implemented the orders of his
24 superiors. This is consistent with the factual basis of the plea
25 agreement. If you do not take into account these personal circumstances,
1 then those who planned and ordered the crimes would be punished the same
2 as those who implemented the orders.
3 We do not put in any way in question criminal liability of the
4 perpetrators of this crime. Such criminal liability extends to Darko
5 Mrdja as well, and he pleaded guilty in this court. However, something
6 what we want to draw special attention to is the role of Darko Mrdja in
7 this event. We find it necessary to emphasise this, especially due to the
8 fact that as far as we know there is no pending procedure in this Tribunal
9 or in any national court against any of the co-perpetrators or direct
10 superiors. Truthfully, in other Tribunal cases the massacre on Koricanske
11 Stijene has been mentioned but in a heap of other accusations it is lost
12 from sight. Bearing this in mind, the Defence fears that Darko Mrdja's
13 individual circumstances will also be lost. Justification of this fear
14 arises from the title of this case on the ICTY web site. This case has a
15 name "Vlasic Mountain." Such title is only partly accurate. This
16 criminal procedure against Darko Mrdja is most likely only the first part
17 of a procedure that will have a subject Vlasic Mountain massacre. The
18 Defence and Darko Mrdja do not want to minimise his liability as one of
19 the perpetrators, but without -- without his participation and
20 participation of other members of Intervention Squad together, no illegal
21 order would have been executed. However, the Defence insists that
22 individual circumstances are part of the gravity of the crime, because
23 without that there is not individualisation of the guilt. Instead, we are
24 entering the field of objective criminal liability.
25 At this point we would like to draw your attention to what we
1 think to one error in the Prosecution sentencing brief. In paragraph 7 of
2 this brief, the OTP cites the Krstic judgement and quotes the part of
3 paragraph 698, and quotes: "The seriousness of the crime must weigh
4 heavily in the sentence imposed irrespective of the criminal participation
5 of the individual." However, text of the same paragraph that Defence has
6 says: "The seriousness of the crime must weigh heavily in the sentence
7 imposed irrespective of the form of the criminal participation of the
8 individual." So the OTP dropped from the original words "of the form."
9 We do not consider this error as intentional; however, it is our
10 responsibility to notice it because the sentence has an entirely different
12 So the Defence considers that crimes that are Darko Mrdja accused
13 are serious breaches of international humanitarian and war law; otherwise,
14 there would not be a jurisdiction in this Honourable Tribunal. However,
15 when assessing the gravity of these crimes, we cannot solely rely upon the
16 number of victims but must consider the individual circumstances of Darko
17 Mrdja as well.
18 The Defence in its sentencing brief argues that there are no
19 aggravating circumstances in this case. After consideration of the
20 arguments made by OTP in its sentencing brief and today, at this hearing
21 we remain at the same position, that there are no aggravating
22 circumstances. The OTP considers that vulnerability of the victims is an
23 aggravating factor on the side of Darko Mrdja. With all respect, Defence
24 disagrees. Both of the crimes for which Darko Mrdja have pled guilty have
25 quantitative element defining the status of the victims as a prerequisite
1 of the crimes. Just this attribute of victims was one of the reasons for
2 defining this crime separately from classical criminal law under national
3 laws. In other words, when we deal with the classical criminal offence of
4 murder, under whatever national legislation we can conceive various
5 degrees of vulnerability of victims and some national legislation foresee
6 so-called qualified form of murder.
7 As far as the crimes encompassed by the jurisdiction of this
8 Honourable Tribunal are concerned, because those crimes involve
9 international humanitarian law, they necessarily include vulnerable
10 victims. It seems that the arguments of the OTP in this respect cannot
11 suffer serious criticism. This is especially concerning the arguments
12 that the victims were unarmed and perpetrators heavily armed, that victims
13 were stripped of their rights, refugees in their own country, et cetera.
14 As an argumentum a contrario, we raise the question of whether those
15 crimes can be committed against somebody who is armed, whose rights are
16 being respected, and who is protected by the state.
17 Truthfully, such a position was taken by the Trial Chamber in the
18 Aleksovski case. However, with all due respect, very weak arguments are
19 given to support it. It is said that national legislation foresees
20 situations when handicapped persons are victims. The Defence considers
21 this are -- this is classical -- classic criminal law that we have
22 discussed earlier in reference to particularly qualified forms.
23 On the other side, crimes coming within the Tribunal's
24 jurisdiction are per se qualified and the vulnerability of the victims is
25 subsumed in their gravity. This position was taken by the Trial Chamber
1 in the Biljana Plavsic case, when in paragraph 58 of the sentencing
2 judgement from 23rd February 2003 it refused to consider the vulnerability
3 of victims as an aggravating circumstance. It is also the same position
4 taken by the Trial Chamber in the Drazen Erdemovic sentencing judgement
5 because the vulnerability of victims in this case was not considered as an
6 aggravating factor.
7 The second aggravating factor mentioned in the Prosecutor's
8 sentencing brief is Darko Mrdja's so-called position of authority. The
9 Defence considers that relying in this respect on Kvocka and other
10 judgements is not adequate. To the contrary, from this judgement, one can
11 easily conclude that Darko Mrdja had no position of authority as an
12 aggravating factor. Namely, it is not in dispute that Darko Mrdja had
13 been --
14 THE INTERPRETER: Could counsel please slow down.
15 MR. DIMITRIJEVIC: -- had been mobilised as a policeman.
16 JUDGE ORIE: Could I ask you to slow down. The interpreters have
17 difficulties in following you.
18 MR. DIMITRIJEVIC: Okay.
19 And that he did not receive almost any police training. Unlike
20 Kvocka, Prcac and Radic, he was not a professional policeman. Instead,
21 Darko Mrdja's situation was more like the situation of accused Kos, who
22 was a reserve policeman and to whom this circumstance did not aggravate
23 his sentence. That's how the Defence understands the paragraph 732 of
24 Kvocka judgement.
25 So in conclusion, the Defence submits that in this case the
1 Prosecution failed to establish beyond a reasonable doubt any of
2 aggravating circumstances.
3 Mitigating factors were discussed at length in our sentencing
4 brief. On this occasion, we shall only emphasise the most important
5 points with respect to evidence in this case.
6 Pleading guilty before the commencement of trial is certainly an
7 important mitigating factor in this case. Immediately after Darko Mrdja
8 has been arrested, the Defence in this case tried to negotiate a plea
9 bargain. Darko Mrdja himself was ready to do the same; however, the
10 necessary conditions for that weren't met until later. The factual basis
11 set forth in the initial indictment claimed that he was in command of the
12 Intervention Squad that committed the massacre on Mount Vlasic on 21st
13 August 1992. Besides that, indictment said that he ordered separations of
14 civilians, their shooting, and that he said a sentence, "Here we shall
15 make to exchange life for life and death. You know that." That's why the
16 Defence also disagrees with today's arguments of learned colleague Tieger,
17 because if we make a comparison between factual basis for the plea
18 agreement and something which constitutes factual basis of the indictment,
19 everybody can see major differences and why it was unacceptable for Darko
20 Mrdja to accept his guilt under that indictment.
21 Discovering the truth is -- this is a citation from the Erdemovic
22 case. "Discovering the truth is a cornerstone of the rule of law and a
23 fundamental step on the way to reconciliation: For it is the truth that
24 cleanses the ethnic and the religious hatreds and begins the healing
25 process. The International Tribunal must demonstrate that those who have
1 the honesty to confess are treated fairly as part of process underpinned
2 by principles of justice, fair trial, and protection of the fundamental
3 rights of the individual."
4 I want to take this opportunity to thank also to OTP and
5 Mr. Tieger and Mr. Resch personally for their extraordinary efforts in
6 reaching the truth in this case despite that from the aspect of proving
7 its case the OTP did not have a difficult task and Defence had a very
8 difficult one, because all potential witnesses regarding the real role of
9 Darko Mrdja are themselves exposed to the criminal procedure. However,
10 both parties in this case wanted to reach the truth as an ultimate goal of
12 In addition, a judgement based on a guilty plea before this
13 Tribunal has far more significant effect in the country where I live, and
14 that is Bosnia-Herzegovina, Republika Srpska. In this case, all
15 complaints regarding the alleged partiality of this Tribunal are lost
16 because Darko Mrdja is voluntarily admitting his guilt.
17 The Defence has submitted personal circumstances as mitigating
18 factors in this case. I want to take this opportunity to bring to the
19 attention of this Honourable Trial Chamber the evidence that we have
20 submitted. I only want to stress on this point that Darko Mrdja is known
21 to be a man with a family, that he has two children, one of which is his
22 son Nikola, who is ill. Before he was arrested, he worked very hard in
23 order to preserve their existence. He had good relations with his
24 neighbours, who are different ethnicities. If there had not been a war,
25 Darko Mrdja would probably never have had a conflict with the law.
1 Mrdja's family experiences great hardship due to his arrest. He is not in
2 a position to help them economically but especially emotionally.
3 The Defence want to emphasise again that Darko Mrdja has no prior
4 convictions and there are no other procedures pending against him in any
5 court, either before or after the events at Koricanske Stijene. We want
6 to bring your attention to the statement of Ostoja Barasin, who was the
7 chief of staff and then subsequently became the commander of the 5th
8 Kozara Brigade, where Darko Mrdja served as a military policeman after the
9 event on Koricanske Stijene and for the rest of the war. In this
10 capacity, Darko Mrdja had significant authority in applying force and that
11 he never misused his position. After the war, Darko Mrdja behaved in
12 accordance with the law. From the time when he -- the crimes were
13 committed until he was arrested, almost ten years passed. During that
14 period, Darko Mrdja never broke the law. With such behaviour, Darko Mrdja
15 continued after he was arrested, as can be seen from UN Detention Unit
17 All of this tells us that the events at Koricanske Stijene
18 represent one tragic episode, not a way of life, so from the point of view
19 of rehabilitation -- from the point of view of rehabilitation, he deserves
20 another chance in his life.
21 Darko Mrdja today gave a statement from which we can see his
22 sincere remorse for what he did. However, beside this statement, his
23 behaviour after the crime was committed shows what his attitude regarding
24 this crime. Immediately after, he expressed his desire to be designated
25 to another military unit. I must -- I owe to you some explanation to
1 that. In that time, there was not official requests for such transfer, so
2 the Defence cannot to present you any evidence in that respect. But we
3 have a document from which you can see that the transfer was -- had
4 happened. And also his sister, Dragana Mrdja, gave a statement from which
5 it can also be seen that he immediately, after Koricanske Stijene, was
6 transferred and that he changed in some way his behaviour.
7 We also, despite all criticism attached to expert witness Adolf
8 Gallwitz but -- from various reason not connected with his -- with his
9 authority and his skills and knowledge, I don't -- I think that we have to
10 take a look on this report. And in that report it is said: "As a
11 conclusion we have to state that at the time in question Darko Mrdja acted
12 in a way of reduced self-control caused by acute stress or in a normal
13 emotional reaction, with age, indoctrination, increased brutality,
14 obedience, group-conforming conduct reducing the ability of independent
16 Such conclusion must be considered in light of the behaviour of
17 Darko Mrdja before this incident occurred. He and other members of the
18 Intervention Squad escorted previously similar convoys of members of the
19 non-Serb population to Doboj, but no casualties were reported. So in this
20 case, he committed a crime when he implemented the orders given to him
21 with fear to consequences that would have derived for any policeman who
22 did not obey, especially given that the events occurred during the war.
23 Those orders were undoubtedly illegal and Darko Mrdja knew the fact.
24 However, in circumstances of this case, Darko Mrdja had a grounded reason
25 to believe that he would be killed if he opposed such an order.
1 Thus the Defence submits that in this case there existed duress as
2 a mitigating factor in accordance with Article 7(4) of the Statute. Even
3 if this Honourable Trial Chamber does not share this view, the Defence
4 submits that those circumstances still need to be assessed along with the
5 other individual circumstances, in accordance with Article 24(2) of the
7 Regarding the age, it was already said. I will be very brief
8 because, if I understand correctly, the OTP withdraw that it is a
9 mitigating circumstance. We noticed that -- that in that paragraph was
10 mixed two things, age of -- age of accused and age of victims -- age of
11 victims, those two separate issues. We didn't say that Darko Mrdja's age
12 is something what can be considered as independent mitigating
13 circumstances. That doesn't mean that that circumstance also can be
14 included in some personal circumstances of Mr. Darko Mrdja. So I will not
15 talk about age of victims, but I don't think that is any more aggravating
16 factor in -- from the submission of the Prosecutor.
17 In addition to gravity of the crime and mitigating and
18 aggravating factors, a Trial Chamber must also consider the purpose of
19 punishment and the jurisprudence of the courts in the former Yugoslavia.
20 The Defence submits that, in the interests of justice, the not-so-small
21 jurisprudence of this Tribunal must be also considered.
22 In relation to retribution as one of the goals of punishment,
23 much has been said. The defence agrees that mere revenge cannot be
24 considered as part of the purpose of punishment. That is a history of
25 human civilisation. Evidence that supports this shows statistical data
1 about the level of criminality in the countries where the death penalty
2 exists compared with countries where the death penalty has been abolished.
3 However, the Defence accepts that the punishment must fit the crime.
4 As far as deterrence is concerned, we have to be cautious. There
5 is no doubt that adequate punishment creates a consciousness in potential
6 perpetrators that such behaviour is not allowed. However, a far more
7 important factor in this respect is the level of detection and the per
8 cent of punished perpetrators. That is a great difference when political
9 leaders are concerned, especially those who led Serbs in Bosnia and
10 Herzegovina. Common perpetrators of crimes form a much lower percentage
11 of the accused persons charged before this Honourable Tribunal. However,
12 we expect that in coming years this will change, if not in this Tribunal
13 but in the Court of Bosnia and Herzegovina as well. But even if we have
14 such a situation, it is realistic to expect that many of them who had
15 similar or the same roles as Darko Mrdja and Drazen Erdemovic will not be
16 punished. Such situations can send a wrong signal to all potential
17 perpetrators of mass killings in future conflicts. They can easily learn
18 that such behaviour is against the law but that there is high probability
19 to remain unpunished with necessary measures of precaution.
20 That is why the Defence considers that milder punishment can have
21 deterrence effect in this case, because it will encourage much more people
22 involved to admit their guilt. In that case, the percentage of those
23 punished will be much higher. The Defence does not have exact data about
24 the number of such people, but it considers that only in Srebrenica and in
25 this case we deal with more than hundred of perpetrators.
1 We already mentioned the sentencing practices in the courts of
2 the former Yugoslavia. Even that practice does not bind this court. From
3 the context of the previous paragraph we see that the vast majority of
4 perpetrators who acted together with Darko Mrdja will have their
5 proceedings before the newly established Court of Bosnia and Herzegovina.
6 Defence consider that it will be unacceptable, due to the interests of
7 justice, that persons who committed the same crime as perpetrators with
8 all other similar cases be punished drastically different. It must be
9 also considered that those persons will serve their sentence in Bosnia and
10 Herzegovina. That is why the Defence consider that Darko Mrdja should not
11 receive a sentence that cannot receive in domestic court.
12 I must -- I must address here an issue that was raised by
13 Mr. Tieger. Excuse me.
14 JUDGE ORIE: May I ask you one question in this respect. I
15 followed your argument on the abolishment of capital punishment and what
16 consequences it would have. What surprised me a bit is that you mentioned
17 Article 1 of protocol 6. But Article 2, that specifically deals with
18 capital punishment for crimes committed in time of war, is not addressed
19 in whatever way. So this is not an issue that has been addressed by the
20 Prosecution, but I would like to ask you to pay attention to the second
21 article of protocol 6 as well, because that at least deals specifically
22 with the issue that is crimes committed during time of war or in relation
23 to a war.
24 MR. DIMITRIJEVIC: Yes. Yes. I know that article. But that
25 article, if I remember, or conventionally required to -- when establishing
1 such crimes, you must put that it can be -- it can be done only in
2 wartime. Articles what we have in -- regarding this particular criminal
3 procedure we don't have wartime as -- as a factor. So I'm not sure that
4 -- that capital punishment could be executed or judgement can be rendered
5 with -- with capital punishment in this respect.
6 JUDGE ORIE: Didn't you quote Article 142 of the Socialist
7 Federal Republic of Yugoslavia Criminal Code in number 74 of your
8 sentencing brief as the basis, the starting point for your reasoning,
9 which reads: "Whoever, in violence of international law in time of war,
10 armed conflict or occupation orders an attack against civilian population,
11 tortures or inhumane treatment --"
12 THE INTERPRETER: Could you please read slowly. Sorry.
13 JUDGE ORIE: Yes. I apologise.
14 Which reads: "... shall be punished by no less than five years
15 in prison or by the death penalty." Isn't that a -- an article of the
16 Criminal Code which specifically refers to crimes committed in time of
18 MR. DIMITRIJEVIC: Yes, Your Honour. But you have to have a
19 pronounced -- proclaimed time of war. We didn't have at that time in
20 Bosnia-Herzegovina and Republika Srpska particularly.
21 JUDGE ORIE: Yes. It says "in time of war --"
22 MR. DIMITRIJEVIC: Yes.
23 JUDGE ORIE: "-- armed conflict or occupation." Doesn't that
24 refer to an officially declared war, to an armed conflict not amounting to
25 a declared war and, well, occupation of course a different category,
1 but ...
2 MR. DIMITRIJEVIC: Yes. But as a prerequisite, Your Honour, you
3 must have "or war" or something like that but proclaimed by the official
4 body. There is jurisprudence I can provide you that those -- that article
5 in -- is -- death penalty are concerned cannot be applied in
7 JUDGE ORIE: Yes. But why do you quote an article where you say
8 now that it could not be applied, to give it as part of your argument? I
9 mean, you are referring to this article, as I would understand, the
10 article that would at time - not now any more, as you told us - would be
11 the applicable law. And now you say but the requirements were not
12 fulfilled. Was -- for normal murder, was the death -- was the capital
13 punishment prescribed?
14 MR. DIMITRIJEVIC: No. For classic murder, no. It was from five
15 to 15. But only for qualified forms of murder, that means murder two or
16 more men -- people and other circumstances which are enumerated in Article
17 36, paragraph 2 of the Criminal Code.
18 JUDGE ORIE: But why did you quote Article 142 in order to give
19 the basis for your argument that the abolishment -- the abolishing capital
20 punishment would be the reason why it could be not any more than 15 years?
21 I mean, why didn't you refer to other articles and say, "Well, Article 142
22 would not apply at all. Normal murder would be 10 years or 15 years or
23 whatever." Why do you take 142 as a starting point of your argument if
24 you tell us now that it would not have been applied -- applicable because
25 the requirements were not met? I mean, what's the use then of quoting
1 Article 142?
2 MR. DIMITRIJEVIC: Obviously that -- we do not understand. This
3 article is the legal frame for this crime of -- in the courts of Bosnia
4 and Herzegovina. But I say -- what I say to you, that European
5 Convention, which is directly applied in Bosnia-Herzegovina by the
6 constitution of Bosnia-Herzegovina - and constitution is annex of Dayton
7 Peace Agreement --
8 JUDGE ORIE: Yes.
9 MR. DIMITRIJEVIC: -- that abolished death penalty also in
10 respect of this article, because prerequisites for this article to put the
11 capital punishment you -- you don't have it.
12 JUDGE ORIE: May I then ask you in this respect another question:
13 In the text you provided to us, in the -- of the Dayton Agreement, it
14 says, "The rights and freedoms set forth in the European Convention for
15 the protection of human rights and fundamental freedoms shall apply
16 directly in Bosnia and Herzegovina," referring to rights and freedoms.
17 What is the right and the freedom granted to persons under the 6th
18 protocol, Article 1?
19 MR. DIMITRIJEVIC: That death penalty is abolished, if I
20 understand correctly.
21 JUDGE ORIE: Yes. But that's not a right or a freedom of a
22 person. I would say that the second part is that someone should not be --
23 should not be sentenced to death and a death penalty should not be
24 executed. If, for example, I give you Belgian legislation, which still
25 has the capital punishment but has another rule that says, "Well, of
1 course we couldn't impose it and we can't enforce it." But you find in the
2 Criminal Code of Belgium, which is part of the parties of the European
3 Convention, you still find as punishment, capital punishment, but it's
4 clear that this cannot be either imposed or improved and that's the
5 language of the second line of Article 1 of protocol 6, isn't it?
6 MR. DIMITRIJEVIC: Yes.
7 JUDGE ORIE: It's not -- I'm asking you what we are talking
8 about, about enjoyment of rights and freedoms or duties upon states or
9 protocol 6 is quite extraordinary in this respect. It doesn't even impose
10 any duty on a state but declares that something is abolished, which of
11 course creates the question: What exactly is abolished? The law which
12 prescribes capital punishment or imposing capital punishment or enforcing
13 capital punishment? It's a rather complicated matter.
14 MR. DIMITRIJEVIC: Yes.
15 JUDGE ORIE: Especially also in relation to Article 2 of protocol
17 MR. DIMITRIJEVIC: Yes.
18 JUDGE ORIE: Which I find only partly addressed in the sentencing
19 brief. If you'd like to make any further comments on that, please do
21 MR. DIMITRIJEVIC: I will go on my last --
22 JUDGE ORIE: Yes.
23 MR. DIMITRIJEVIC: -- part about sentencing practice of this
24 Tribunal. Actually, we do not want to use this opportunity to make
25 analyses in depth of previous Tribunal decisions. First of all, we do not
1 want to provoke a polemic with our learned colleagues from the OTP. From
2 the other side, we know that this Honourable Trial Chamber has far more
3 knowledge about this issue than we have. We also acknowledge the fact
4 that there are no two identical cases, but we wish to assist, we want to
5 emphasise as a starting point the factors to be considered in order to
6 find the most similar cases.
7 First is gravity of crime; B, is similar factual basis (mass
8 killing, one-day event, perpetrator executing orders, some level of
9 duress); guilty plea before the commencement of the trial; remorse; level
10 of cooperation with OTP; personal circumstances as (age, marital status,
11 children, lack of criminal record, good behaviour in UN Detention Unit).
12 Finally, we want to say that Darko Mrdja did commit the crime for which he
13 is accused, but Darko Mrdja confesses his guilt. It is one day of his
14 life. He expressed his remorse. He cooperated with OTP. He has family
15 with ill baby. There is no other criminal procedure against him prior or
16 before this tragic event. He is not criminal by his nature.
17 In respect to all said above, the Defence respectfully suggests
18 to this Honourable Trial Chamber that it would be just to impose a
19 sentence in this case of not more than 15 years of imprisonment, including
20 credit for time spent in the -- in the custody.
21 Thank you for your attention.
22 JUDGE ORIE: Thank you very much, Mr. Dimitrijevic.
23 A few questions. First, Mr. Wachenheim, did you check the source
24 of the --
25 MR. WACHENHEIM: Your Honour, I did, and I apologise for the work
1 we created. It's been an apparent typing error. The right citation is
2 volume 43, and then page 233, instead of 23. And then going on pages 234
3 and 235.
4 JUDGE ORIE: Yes.
5 MR. WACHENHEIM: Sorry.
6 JUDGE ORIE: My next question would be Mr. Tieger has explained
7 more or less what the decision is about. Do you agree with that or do you
8 not agree with that?
9 MR. WACHENHEIM: I do not agree with it.
10 JUDGE ORIE: Okay. Then perhaps for sake of clarify, from the
11 original source, I read - and I will try to translate what I find in the
12 German language but -- into English - it says that: "Being a foreigner as
13 such, taken as such, is not a reason to assume that there is a mitigating
14 factor to be considered. It refers to Article 3 of the German
15 constitution and says that this Article 3 would even a more favourable or
16 more unfavourable position would even forbid to do that on the basis of
17 where somewhere comes from.
18 And then it says - and I'll later repeat it in German - it says:
19 "Special circumstances can, however, in individual cases exceptionally
20 justify a different judgement," or in German [German spoken]. Is this
21 your understanding of what this case tells us? Although you did not agree
22 with Mr. Tieger, but is this a fair representation of what the case is
23 about? And then it continues to say that the lower court did not pay
24 specific attention to issues raised in respect of specific -- special
25 circumstances? Is that a correct understanding of the --
1 MR. WACHENHEIM: This is the correct understanding, Your Honour.
2 And if I might just add, of course --
3 JUDGE ORIE: Yes.
4 MR. WACHENHEIM: -- we do have a lot of foreigners living in our
5 country who might be socially integrated who might speak the language, and
6 in those cases, of course, the mere fact that they are foreigners does not
7 make any difference.
8 JUDGE ORIE: Yes.
9 MR. WACHENHEIM: Thank you.
10 JUDGE ORIE: I do understand.
11 Then, Mr. Tieger, would you be in any need to spend just a few
12 lines on what I put to you earlier about the Krnojelac decision?
13 MR. TIEGER: Thank you, Your Honour. With the miracle of modern
14 technology, it's possible that I may be of assistance.
15 JUDGE ORIE: Yes.
16 MR. TIEGER: Insofar as I can determine the jurisprudence on this
17 issue begins with the Delalic case, which was cited by the Prosecution in
18 its brief in Kunarac.
19 JUDGE ORIE: Yes.
20 MR. TIEGER: And at paragraph 851 or 852 - I can't recall - the
21 Kunarac -- and Kunarac is the case on which the Krnojelac Trial Chamber
22 relied. So the Kunarac Trial Chamber goes back -- excuse me, the
23 Krnojelac Trial Chamber goes back to the Kunarac case. And that reached
24 -- which rejected the Prosecution argument regarding family members as
25 saying that the Delalic case was "not wholly unambiguous," which seemed to
1 have left the door open. And the Prosecution pursued that in the
2 Krnojelac appeal. And in the -- in the Krnojelac appeal, the Appellate
3 Chamber noted that, first, certain national jurisdictions have taken the
4 impact on the family into consideration in imposing judgement.
5 Second, the Appellate Chamber noted that even when specific
6 family relations are not established by the evidence in the case
7 explicitly, that the Trial Chamber should reasonably suppose that victims
8 don't live in isolation but that they are related to other individuals.
9 However, the trial -- the Appellate Chamber found the fact that the Trial
10 Chamber didn't take that factor into account was not a sufficient reason
11 to modify the sentence.
12 Now, I -- and there's one more case that's worth noting, and
13 that's Celebici, in which -- apparently at paragraph 1226 the Trial
14 Chamber said that "The gravity of the offences of the kind charged have
15 always been determined by the effect on the victim or at most on persons
16 associated with the crime and nearest relations," which also seems to
17 suggest the -- a possibility consistent with the Krnojelac Appeal Chamber.
18 The one caveat to my remarks is that the Krnojelac appeal judgement is
19 available only in French, and I received a -- a summary of it.
20 JUDGE ORIE: Yes. Thank you for your response to that question.
21 Then finally, one question to the Defence. And I ask, I hope,
22 that we can finish very soon. So if the interpreters could -- could stay
23 for another couple of minutes, then I hope that we can finish. If there's
24 any problem with that, I'd like to hear it now. I don't hear anything.
25 THE INTERPRETER: It's no problem, Mr. President.
1 JUDGE ORIE: Thank you very much.
2 Whenever something was invoked by the Defence or, at least, when
3 special attention has been drawn to a certain aspect by the Defence, of
4 course you'll understand that since the Chamber, when dealing with
5 mitigating factors, whatever mitigating circumstances are, of course -
6 because there's no standard - we have no system where we have minimum
7 penalties where you should go under or maximum penalties that higher up if
8 a specific aggravating circumstance exists. We have no system of
9 sentencing guidelines. I mean, to that extent, I would say the system is
10 relatively open in this and it makes less difference than it might make in
11 other systems, whether we're talking about aggravating or mitigating
12 circumstances. But of course the Chamber will -- will balance everything
13 that it has knowledge of. And therefore, I specifically draw the
14 attention of the Defence to -- to those witness statements where it
15 appears that the accused was in possession of a firearm when he was
16 arrested. That has got some -- some emphasis. Nothing has been said on
17 credibility, reliability of any statements that go to another. That gives
18 some indications which might be a basis for other conclusions.
19 I'm specifically referring to the statement of Witness C8, which
20 -- at least, there's a statement which has supported the indictment, that
21 he once met the accused at a couple of years after the war and that he
22 noticed that he was carrying a weapon, although not visible directly but
23 indirectly. Nothing has been said about it. I'm not going to say that
24 you should say anything about it, but I just want to make you aware that
25 this is part of what the Trial Chamber has in its files.
1 Finally, is there anything the Prosecution would like to add or
2 is there anything the Defence would add also in relation to the latest
3 observations in respect of the case law of the Tribunal on sentencing, or
4 do you trust that the Chamber will consider it in full detail?
5 Then finally, Mr. Mrdja, is there anything you'd like to add to
6 what has been said today? And you have an opportunity to do so now.
7 THE ACCUSED: [Interpretation] No, I have nothing to add. Thank
8 you, Your Honour.
9 JUDGE ORIE: Thank you very much. Please be seated, Mr. Mrdja.
10 Then this concludes the --
11 Yes, Mr. Tieger.
12 MR. TIEGER: Your Honour, if we may, we would, before we
13 conclude, we'd like to submit some confidential statements under seal, as
14 discussed with the Court previously. Those are pursuant a request made in
15 the 65 ter for statements that had previously been inadequately or overly
16 aggressively redacted, I think.
17 JUDGE ORIE: Yes. The Defence is aware of the new versions of
18 the statements to be submitted? Is there any opposition from the Defence?
19 It has been agreed?
20 MR. TIEGER: I believe those were the subject of discussion at a
21 65 ter at which the Defence was present. I think it was understood at
22 that time that we would be making that submission. If -- perhaps the
23 Defence does not recall, but maybe if they --
24 JUDGE ORIE: Could we go into private session just for one second
25 so that it could be clarified.
1 [Private session]
20 [Open session]
21 JUDGE ORIE: We are in open session now.
22 MR. RESCH: Your Honour.
23 JUDGE ORIE: Yes. But first Madam Registrar would like to assign
24 a number to the -- but if there's anything that should come first ...
25 Madam Registrar.
1 THE REGISTRAR: The hard copy is S5, and the CD will be Exhibit
2 number S5A, both under seal.
3 JUDGE ORIE: Yes, please proceed, Mr. Resch.
4 MR. RESCH: Your Honour, the final matter - and I'll keep it
5 brief - is the annex which I referred to in our opening statement. I
6 guess I'd submit that this is primarily a technical correction to the
7 annex to the indictment. As I mentioned, our continuing efforts have
8 allowed us to eliminate some of the names which it turned out were
9 duplicates because of the use of a nickname rather than the first name.
10 So the initial annex contained 228 names. The current -- the proposed
11 annex, which we would like to file, has 213 names.
12 JUDGE ORIE: Yes. So that's a lesser number.
13 MR. RESCH: It is.
14 JUDGE ORIE: The Chamber will -- yes, please.
15 MR. RESCH: But there are a few additional names, for example,
16 Edem Fazlic, one of the victims whose body was recovered at the recent
17 exhumation, was not included on the additional list. So where we -- there
18 were five additional names added to the list, so a net reduction of 15.
19 JUDGE ORIE: I don't know whether we could change the indictment
20 or one of the annexes to the indictment to which has already been pleaded
21 guilty. But especially since it seems to lower the number - although a
22 few additional names are there - could we perhaps deal with it as an
23 exhibit which expresses the latest information of the Prosecution and
24 perhaps we couldn't change it any more. We'll consider how to deal with
25 it exactly, but if you could say we primarily request the amendment of the
1 indictment of -- at least the annex of the indictment and subsidiarily we
2 ask to take into consideration a new list and accept it as an exhibit,
3 then we'll deal with it either in the intermediary decision or in our
4 final decision on sentencing. But I first have to ask the Defence whether
5 there's any objection against this suggestion.
6 MR. DIMITRIJEVIC: No. On the contrary; we -- we fully accept
7 that what the Prosecutor said, that is in our interest.
8 JUDGE ORIE: Yes. So at least I think the most important thing
9 is that the Prosecution has now submitted to the Chamber that the number
10 of victims was lower but that a few new victims have been found and that
11 an updated list is now presented to the Chamber.
12 MR. RESCH: Yes, Your Honour. And thank you, we accept the
13 Court's suggestion.
14 JUDGE ORIE: Yes. Okay. Then it will be an exhibit, rather than
15 a request for amendment of the annex to the indictment.
16 Madam Registrar, that would then get ...?
17 THE REGISTRAR: Exhibit Number S6.
18 JUDGE ORIE: Yes. S6. Thank you, Madam Registrar.
19 Is there anything else to be raised at this moment?
20 MR. TIEGER: No, Your Honour. Nothing from the Prosecution.
21 MR. DIMITRIJEVIC: No, Your Honour.
22 JUDGE ORIE: Then thank you very much. We'll then adjourn.
23 And I first of all want to thank the interpreters for assisting
24 us even for a considerable time after 7.00. Thank you very much for your
25 assistance. The same is true, of course, for the technicians and those
1 who are working on the -- on the transcripts.
2 We'll adjourn, and a sentencing judgement will be pronounced in
3 due course. The parties will be informed when it will be; presumably
4 before the recess, before the winter recess.
5 We'll adjourn.
6 --- Whereupon the hearing adjourned at 7.18 p.m.