Tribunal Criminal Tribunal for the Former Yugoslavia

Page 93

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

24 Prosecution.

25 MR. TIEGER: Thank you. Good afternoon, Mr. President, Your

Page 94

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

6 Wachenheim.

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

Page 95

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

8 hearing.

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

21 hearing.

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.

Page 96

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

23 are:

24 First, the gravity of the offence;

25 Second, the individual circumstances of the accused;

Page 97

1 Third, aggravating or mitigating circumstances, and;

2 Fourth, the general practices regarding sentencing in the former

3 Yugoslavia.

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

Page 98

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

Page 99

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

Page 100

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

Page 101

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

19 him.

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

Page 102

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

Page 103

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

Page 104

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.

Page 105

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

Page 106

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.

Page 107

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

6 problem.

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

Page 108

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

22 municipality.

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?

Page 109

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

9 began.

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?

Page 110

1 A. To Omarska.

2 Q. And Mr. Mujkanovic, approximately how long were you held in

3 Omarska?

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

7 soldier.

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?

Page 111

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

4 too.

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.

Page 112

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

7 around.

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

Page 113

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

17 taken?

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

Page 114

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

Page 115

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

Page 116

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]

8 [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.

Page 117

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.

Page 118

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

17 1992.

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.

Page 119

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

Page 120

1 your life. Therefore, I again would like to thank you. And you are

2 excused.

3 Madam Usher, could you please escort the witness out of the

4 courtroom.

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

10 minutes.

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?

Page 121

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.

Page 122

1 Examined by Mr. Resch:

2 Q. Good afternoon, ma'am. Could you please state your name for the

3 record.

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

8 municipality.

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

24 Slovenia?

25 A. Yes. I left by bus with a lot of other women and children. The

Page 123

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

17 Bihac.

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

25 honour.

Page 124

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

12 there.

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

Page 125

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

Page 126

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

24 Koricani?

25 A. No. None of the families went there up until that date. It

Page 127

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

Page 128

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

Page 129

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

20 again.

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.

Page 130

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

18 there.

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

Page 131

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

Page 132

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

Page 133

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

8 us.

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.

Page 134

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

Page 135

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

19 proceed.

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

Page 136

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

6 born.

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.

Page 137

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

7 safely.

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,

Page 138

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.

Page 139

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]

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23 [Open session]

24 JUDGE ORIE: We are in open session again. Please proceed.

25 MR. TIEGER: Thank you, Your Honour.

Page 145

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

6 manifest.

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

Page 146

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

Page 147

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

Page 148

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,

Page 149

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

Page 150

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

Page 151

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

15 need.

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

Page 152

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

Page 153

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

Page 154

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

13 Drljaca.

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

Page 155

1 that is very close to 21st of August. It's not -- that's how we consider

2 that.

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

Page 156

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

Page 157

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.

Page 158

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

19 correct.

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.

Page 159

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

Page 160

1 think?

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

10 6.00.

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

Page 161

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

Page 162

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.

Page 163

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

Page 164

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,

Page 165

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

Page 166

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.

Page 167

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

Page 168

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

Page 169

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

13 response.

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.

Page 170

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

Page 171

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

6 said:

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.

Page 172

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

Page 173

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,

Page 174

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

Page 175

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

11 meaning.

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

Page 176

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

Page 177

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

Page 178

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

Page 179

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

11 justice.

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.

Page 180

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

16 report.

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

Page 181

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

15 thinking."

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.

Page 182

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

6 Statute.

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

Page 183

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.

Page 184

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

Page 185

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

17 war?

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,

Page 186

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

6 Bosnia-Herzegovina.

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

Page 187

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

Page 188

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

16 6.

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

20 that.

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

Page 189

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

Page 190

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 --

Page 191

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

Page 192

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.

Page 193

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.

Page 194

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.

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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.

Page 197

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

Page 198

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

Page 199

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.

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