1 Tuesday, 9 October 2001
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.33 a.m.
5 JUDGE ROBINSON: Sir Ivan.
6 MR. LAWRENCE: May I ask the Chamber permission to allow --
7 THE INTERPRETER: Microphone, please. Microphone, please.
8 JUDGE ROBINSON: Your microphone.
9 MR. LAWRENCE: Sorry. May I ask the Chamber's permission to allow
10 Mr. Kolundzija to make a statement now?
11 JUDGE ROBINSON: He will make a statement now?
12 MR. LAWRENCE: Yes.
13 JUDGE ROBINSON: Yes.
14 Mr. Kolundzija.
15 THE INTERPRETER: Microphone.
16 THE ACCUSED KOLUNDZIJA: [Interpretation] Good morning, Your
17 Honours. Good morning, Your Honours. Thank you for allowing me this
18 opportunity to say a few words.
19 Today, to my plea of guilty, I would like to add my sincere human
20 regret. I'm sorry for all the families of the people who were in
21 Keraterm. All my life I tried not to do unto others as I would not like
22 to be done unto me.
23 About the existence of the camp, I learnt only when I was assigned
24 there as a reserve policeman. Throughout the time I worked there, I
25 viewed all people equally, regardless of whether I knew them or not. The
1 events that followed demonstrated that I was naive. It is true that I
2 complained many times about the conditions for the people in Keraterm, but
3 I see that it was not enough. It is true that I allowed of my own will
4 people to be brought food, blankets, and clothing for the detainees, but I
5 see that that, too, was not enough. I prevented all sorts of harm to be
6 done to the detainees. I see now that it was not enough, although this
7 did not happen while I was so-called shift leader. I never protected only
8 those people whom I knew. I think I acted the same towards everyone. For
9 all my mistakes, I bear responsibility.
10 It is true that the massacre in Room 3 happened in the night
11 shift, when I was on duty. God is my witness that I tried everything to
12 save the people, to prevent the crime, but unfortunately I did not succeed
13 against a large number of armed people. For the rest of my life, I won't
14 be able to forget that bloody night, nor will I be able to forget all that
15 happened to my townspeople who were unjustly contained in the Keraterm
16 camp. It is hard for me to remember those people in those conditions and
17 to realise that I didn't do more for them.
18 I never wanted to stay in Keraterm, and I did not agree with the
19 conditions, but I believed if I stayed, I could help to lessen the evil
20 and to ease the suffering. As an ordinary reserve policeman, or the
21 so-called shift leader, I thought I had done all I could.
22 Before the war, I socialised with all people. I was friends with
23 everyone, regardless of their nationality and faith. Even today, I have
24 no prejudice in that respect.
25 I am aware now that at the time I was a tool in the hands of
1 others, and this I deeply regret. I express regret and remorse for all
2 the acts, including my acts in situations when I could have done more and
3 didn't. I am aware that this is no compensation to my own people of
4 Prijedor, but I do hope that I will be contributing to a new beginning.
5 My remorse will certainly not remove the scars of a painful past, but I
6 sincerely hope that it will help heal the wounds.
7 Once again, I apologise and I am sorry for everything that
8 happened. For the sake of our children's future and all of our futures, I
9 will do my utmost to prevent this or anything like this from ever
10 happening again. Thank you.
11 JUDGE ROBINSON: You may sit.
12 Sir Ivan.
13 MR. LAWRENCE: Your Honours, this International Chamber was set up
14 to bring justice to those who have committed the gravest crimes and the
15 greatest harm to humanity. As you've sat in judgement over the weeks and
16 the months and even the years listening in case after case to the dreadful
17 inventory of man's inhumanity to man, and as you very sadly will continue
18 to do so for the future, I very much doubt whether you will have heard or
19 are likely to hear evidence about a defendant such as you have heard about
20 Dragan Kolundzija, who when given the opportunity to do great harm did
21 less harm and more good for the victims of this civil war. Yet the
22 Prosecution are asking for a sentence of five years' imprisonment, the
23 same as the International Tribunal considered appropriate for Erdemovic,
24 who although under duress and very cooperative, nevertheless on his own
25 admission murdered 70 to 120 Bosnian men and boys.
1 In our respectful submission, a sentence of anything like as long
2 as that for Kolundzija would be unnecessary, inappropriate, unfair, and
3 would harm the credibility of this Tribunal. Moreover, such a sentence
4 would surely send the wrong message to anyone who might find himself as a
5 guard in a prison camp, like Kolundzija, at some time and someplace in the
6 future, for wouldn't such a sentence if it's too harsh and too severe make
7 such a person think, "Why should I show my head above the parapet? Why
8 should I disobey orders and risk imprisonment or death to improve the camp
9 conditions or stop some of the killing? Won't the Prosecution only argue
10 that it proves that I had the power to do good and should be punished for
11 not doing more, as the Prosecution have argued in this case? If I do
12 nothing to help, there may be no evidence that I ever had such power, so
13 why should I be damned for doing good?" Wouldn't that be likely to happen
14 if this Chamber gave Kolundzija no more credit than the Prosecution say
15 you should?
16 In our respectful submission, it must be in the public interest
17 for this Chamber to be seen to be showing mercy to those who, like
18 Kolundzija, might be encouraged to behave better towards their fellow
19 human beings despite personal risks, for if one of the purposes of the
20 Tribunal is, as I believe has been said on a number of occasions, not only
21 in judgements but when the Tribunal was set up, to help to bring about
22 better behaviour, then how better than to effect this than give merciful
23 sentence when mercy is due.
24 Your Honours, in our written sentencing brief, Mr. Ostojic and I
25 analysed the procedure, the law, the facts as the Chamber would consider
1 in carrying out the sentencing procedure, the factual basis of the plea,
2 how the gravity of Kolundzija's offence may be limited, and particularly
3 how the absolute horror of the Room 3 massacre should no longer be seen to
4 be a part of the evidence underlying the charge of persecutions as far as
5 Kolundzija is concerned, and I hope that the Chamber won't think it
6 necessary for me to reiterate those matters and, therefore, not to take up
7 the Chamber's valuable time unnecessarily.
8 And may I particularly adopt, without repeating them, on behalf of
9 Kolundzija, the observations of my learned friend Mr. Greaves in dealing
10 with the camp conditions and the references in paragraphs 27 to 35 of the
11 Prosecution's sentencing brief and Mr. Petrovic's remarks also about the
12 circumstances of the setting up of Keraterm camp, its actual purpose, and
13 the conduct. And may I just limit my remarks to giving, quite simply, a
14 list of the reasons why we invite the Chamber to reduce the sentence upon
15 Kolundzija below that which the Prosecution call for.
16 In our respectful submission, there are 13 strong reasons, some
17 very strong, based upon the agreed facts and the evidence which has
18 emerged in this case why Kolundzija does not deserve a sentence of
19 anything like five years' imprisonment.
20 Firstly, in the Todorovic case, the plea agreement said -- I refer
21 to it at page 15 of our sentencing brief, paragraph 5:
22 "Since the accused's plea to count 1 of the indictment also
23 encompasses all the allegations detailed in counts 2 to 27, the Office of
24 the Prosecutor will accept the plea to count 1 in satisfaction of the
25 remaining counts on the indictment."
1 Kolundzija's plea is not in satisfaction of the other counts; that
2 is, the activity he pleads to in count 3 does not encompass any other
3 activities. So this isn't a case where, as often arises, a court may say
4 the defendant is fortunate that the prosecution have let him off so
5 lightly by not going on with the other counts. There was no evidence upon
6 which the Prosecution could rely on any other counts. Kolundzija didn't
7 take part in the Room 3 massacre; he didn't have command responsibility.
8 In short, there's been no plea bargain here. And the Chamber will want to
9 sentence him on the extent of his culpability for count 3, paragraph 36(e)
10 alone, no more, no less.
11 Secondly, Kolundzija wasn't a guard at Keraterm camp of choice, he
12 wasn't a volunteer choosing to do harm to Muslims and Croats because he
13 hated them; he was a conscript in time of war, ordered to be a police
14 reserve guard at the camp. He couldn't refuse, because he would have been
15 sent to the front to be shot. He had no alternative, if he wanted to
16 live, but to serve where he was ordered to go, as any soldier must.
17 The evidence, at page 39 of our sentencing brief, Witness DN said:
18 "He didn't have it easy, and you can see it. You can see it on
19 the man, that he really wasn't happy there, that he was forced to be
20 there. You could see that the fact that he was there was not of his own
21 will, that he had to be there, that he had been ordered to be a guard."
22 And at page 34, Witness E said:
23 Q. So your testimony today on the basis of these
24 numerous conversations that you had with Kole was
25 that he disagreed with the things that went on in
2 A. [redacted].
6 Q. You weren't a serving soldier, so you weren't under
7 any orders. Why did you refuse to do this work?
8 A. I thought it would be better for me to stay and at
9 least identify the bodies and at least register the
10 bodies, so I think it was more of a favour to their
11 loved ones if I did that.
12 Q. Right. So what you're saying is you felt you could
13 do more good by staying and helping. Is that what
14 you're telling us?
15 A. Yes.
16 Q. Did you think about running away, leaving town,
17 refusing to take part in the horror that was
18 unfolding? Did you think about that?
19 A. Yes, I did.
20 Q. What constraint was there upon you to stop you doing
22 A. One could not leave.
23 Q. Why not?
24 A. The Republika Srpska, the men of military age, were
25 not allowed to leave.
1 Q. What happened if you had left?
2 A. I probably would have been arrested and sent to the
3 front line.
4 And then Dr. Dusan Lakcevic, the academic expert with 36 years of
5 experience in the Yugoslav police force, said, again at page 25:
6 "As it is all over the world, and so it is in the Republika
7 Srpska: Persons who fail to respond to the call-up are held criminally
9 Obviously the same thing would happen if he had deserted. We have
10 a case of a young man born in 1976 who failed to respond to the call-up
11 for recruitments, national service. He was sentenced to two years'
12 imprisonment by the military court in Banja Luka. Vladisava Vekic, who
13 was a doctor, a neuropsychiatrist, who was found guilty of the criminal
14 offence of failing to respond to a call-up and for avoidance of military
15 service, was sentenced to eight years' imprisonment.
16 So Kolundzija was forced, obviously, and nevertheless made the
17 best of it by bravely taking risks to improve the conditions at Keraterm
18 camp. And at page 37, you have the evidence of Witness P:
19 "When Kole took over the shift, he asked, 'Why is hall 3 locked?'
20 And he was told why, and he ordered to open the hall 3, that is, to unlock
21 it. After a while, Sikirica came back to the camp."
22 And I refer to this only because it has been relied upon as a
23 passage by my learned friend for Sikirica:
24 A. But we had already come out of hall 3. He started
25 shouting and asking who allowed to unlock the door
1 and let out the inmates from Room 3. Kole said that
2 he personally had opened the door and allowed the
3 men to come out. Sikirica said to lock it, and Kole
4 said, 'No, I won't, because I'm the shift commander
5 and during these 12 hours while I'm the commander,
6 this hall will stay open. It won't be locked.' It
7 stayed open until night-time, as usual.
8 Q. He appeared to be going against the orders of a
10 A. That's how it looked. That's how it appeared.
11 Q. In order to let you breathe and keep the door open?
12 A. Yes.
13 Q. He was disobeying the order of a superior and might
14 be punished?
15 A. He knew what could have happened and he knew what he
17 Q. He was being brave at the moment?
18 A. Yes, to the benefit of the inmates.
19 And there is evidence that nevertheless, notwithstanding that he
20 was a conscript, that he was forced to be there, that it wasn't in his
21 interest to do what he was doing, he complained - which was his only
22 official power - to his superior, Zivko Knezevic.
23 And at page 29 of our brief, Witness DK said:
24 Q. Were you questioned -- were you present on, I
25 suggest, three occasions when Kole complained to
1 Knezevic about shortages, about outsiders coming
2 onto the camp causing trouble, three occasions, I am
3 suggesting, which you were present when such
4 complaints were made? Would that be right?
5 A. Yes.
6 Q. Do you remember an occasion when Kole got angry with
7 Knezevic and Knezevic said, "No one will pull guns
8 on the military in any circumstances"?
9 A. Yes.
10 Q. "You can try to talk them out of it, but under no
11 circumstances must weapons be used." There was such
12 an occasion that you can recall?
13 A. Yes.
14 Q. Do you remember an occasion in June when Kole became
15 a shift leader, when he complained to Knezevic about
16 guards like Banovic who were coming onto the camp
17 and detaining detainees?
18 A. Yes.
19 Q. Was Knezevic's response, "Discipline is my job, not
20 your job. Get back to Keraterm"?
21 A. Yes.
22 Q. Do you remember in the course of complaining on
23 this or other occasions Kole saying he wanted to be
24 sent somewhere else, not Keraterm, because he
25 couldn't carry on working in a place like that?
1 A. Yes.
2 Q. And was Knezevic's angry reply, "Yes. We will send
3 you to the battle front"?
4 A. Yes.
5 Q. And was Kole being quite brave in arguing with
7 A. Well, yes, he was brave, but to no avail.
8 Q. If you didn't obey orders coming from Zivko
9 Knezevic, what would have happened to you?
10 A. We would have been thrown out of the police force
11 and sent to the front, to the army. And at that
12 point when you were kicked out the police, you would
13 be sent to the worst part of the front line, which
14 at the time was the Vozuca.
15 Q. If you were sent to the front, what would your life
16 expectancy be?
17 A. It would depend on luck.
18 Q. Luck whether you were killed or not?
19 A. Yes.
20 And the evidence was that after the horrific Room 3 massacre,
21 Kolundzija's spirit did break. One witness said he threw his gun down in
22 anger at the feet of Zivko Knezevic and he ran away in complete shock and
23 couldn't return for duty for some days. That was the evidence.
24 So the obvious truth is that Kolundzija was under constant
25 constraint or duress and that it's totally unrealistic for the Prosecution
1 to say he could have quit in protest. He stayed. He made a choice, his
2 personal convenience over his conscience.
3 It's true that he may feel remorse at not doing so, which may be
4 why he pleaded and what he said from the dock, but it doesn't alter the
5 fact, does it, that in expecting him to have run away, the Prosecution are
6 expecting a far higher standard of behaviour from a conscript than any one
7 of us would, if we were honest, have been likely to have exhibited. In
8 fact, some might consider it to have been cowardly for Kolundzija to have
9 cut and run. Braver by far to stay and do some good and save some lives
10 than none at all, as some of the passages I have read show.
11 In any event, superior orders is no defence, but Article 7(4) of
12 the Statute says that it may be considered in mitigation, and we
13 respectfully submit that it should be so considered here.
14 Thirdly, the extent of Kolundzija's contribution to the harm done
15 at Keraterm was very limited indeed. The limited extent of violence is
16 specifically relied on as a mitigating factor by the Tribunal, set out in
17 the judgement of the Aleksovski case, and here it is conceded that
18 Kolundzija participated in no violence at all.
19 As for his participation in the general harm done and misery
20 inflicted at Keraterm camp over the seven weeks he was there, that was
21 very small, for the evidence was that in this camp where beatings, abuse,
22 and even murders were an almost daily occurrence, Kolundzija murdered no
23 one. It's now accepted that he played no part in the Room 3 massacre. He
24 beat no one. He mistreated no one. No guard on his shift murdered, beat,
25 or even mistreated a detainee.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 And if I may just interpose that I object to one part of
2 Mr. Ryneveld's sentencing speech yesterday. It is not a common
3 denominator in this case between the three defendants that there were
4 beatings on the various shifts. There were no beatings on Kolundzija's
6 Why did the guards not murder or beat a detainee? On the
7 evidence, because Kolundzija would not condone such behaviour. Surely he
8 must be given very considerable credit for the small amount of harm he
9 participated in.
10 Fourthly, not only was he not violent to detainees, he went out of
11 his way to prevent and stop violence being done to detainees by other
12 guards and violent or drunken visitors to the camp and to stop them from
13 abusing detainees. And the Chamber will recall that the entrance to the
14 camp wasn't locked, nor perimeter barbed wire, and visitors, particularly
15 the army, could come in quite easily.
16 At page 38A of our brief, Witness W said:
17 A. He would prevent Zigic his intention or any other
18 unknown persons that would come into the camp from
19 abusing us and beating us. Us, us. Not only me,
20 but us.
21 Q. You told us that Kole prevented access to camp by
22 other individuals who sought to persecute and murder
23 detainees at the Keraterm camp; isn't that correct?
24 A. That's right.
25 At page 31 of our brief, Witness A:
1 A. On one occasion it happened that a stray soldier, if
2 I call him that, came from the road. From where, I
3 don't know. And he was there and asked that
4 somebody come out from the dormitory. I forget his
5 name. And then Kole did not allow that and that
6 soldier said, "Well, then, I'll open fire on the
7 dormitory." And Kole got his automatic rifle and
8 said, "Yes, friend. If you open fire on their
9 dormitory, I'll open fire on you."
10 Q. You quoted an instance when Kole came during another
11 shift to save a prisoner who was being beaten. Do
12 you recall that?
13 A. Yes, I recall that very well. One night, several
14 people were called out to be beaten. I recognised
15 the scream of my neighbour. His last name was
16 Seferovic. Suddenly I saw Kole running in the
17 compound. He said, "What are you doing? Go back
18 to your room." And he said it rather curtly, and
19 people went back. So further mistreatment and
20 beating was prevented.
21 Salko Saldumovic said:
22 Q. Was there an occasion when you heard him shouting at
23 some guards on Fustar's shift to stop hitting
25 A. I did hear it.
1 Q. Showing that he would not tolerate that kind of
3 A. Yes, certainly. It meant he was not going to
4 tolerate violence, yes.
5 Witness W:
6 A. Zigic once came and wanted to enter the compound,
7 but Dragan Kolundzija prevented him. And as far as I
8 can see there from hall 2, the discussion was so
9 vehement that Kolundzija had to pull a firearm and
10 point it at him. But he didn't use it, and Zigic
12 Q. Does the name Adem Blazevic mean anything to you?
13 A. It means that Kole prevented him from being beaten
14 by Zigic once. They called Kole to stop it, to
15 prevent it, and that's what Kole did.
16 And at page 35A -- 35, Witness E:
17 A. And if somebody came and hit an inmate, then we hit
18 him and tell him to leave us alone.
19 Q. You remember seeing soldiers coming to the gate of
20 Keraterm seeking to come in, wanting to come in and
21 Kole turning them away and that he would swear at
22 them and say that he would not come in whilst he was
23 on duty? Do you recall that?
24 A. Yes. Yes. Yes, that's right.
25 Q. When he came during Kole's shift, Zigic did not
1 perpetrate any mistreatment; is that correct?
2 A. Kole did not allow any mistreatment.
3 Kole, Kolundzija, must surely be given substantial credit for
5 Fifthly, although Kolundzija is pleading guilty to being a party
6 to the bad and, in the end, appalling camp conditions, surely the degree
7 of his blameworthiness must be further limited, because the evidence is he
8 went out of his way to improve the conditions of Keraterm camp, and the
9 Prosecution now concede that guards had no power to change the basic
10 conditions of overcrowding, food and water shortage, or lack of sanitary
11 and hygiene care in the camp. Nevertheless, there was voluminous evidence
12 that he tried to improve those conditions on the camp, those conditions
13 that he did have some control over.
14 So on his shift, detainees were never forbidden to go to the
15 toilet. They could leave their rooms for fresh air, to talk to their
16 friends. They were allowed to wash themselves and their clothes. They
17 were allowed to phone their families. Those families were allowed to come
18 and visit at the camp, bringing food and blankets and medicines, and even
19 insecticides. Kole tried to get food to the very hungry and the youngest
20 detainees, even the leftovers from the food that was provided for the
21 guards. He did arrange for food to be brought in. He even took detainees
22 home to wash, shower, and bathe. And he took them to a well so they could
23 draw fresh, icy water to drink. All that's in the evidence and in the
24 excerpt cited in our written sentencing brief and in the affidavits which
25 have now been appended.
1 And the Prosecution are quite wrong on the evidence in saying he
2 didn't just give -- he just gave preferential treatment to those he knew.
3 That's not the evidence. Mr. Ryneveld yesterday said, "If you knew
4 Kolundzija, you were in a much better position to receive favourable
5 treatment," though he resiled a little from that when Your Honour Judge
6 Robinson, I think, tested him on it.
7 Can I just refer you to some of the actual evidence? At page 39,
8 Witness DN said:
9 Q. Isn't it also true, sir, that Dragan Kolundzija
10 allowed and permitted food or access to food from
11 the outside to other detainees that he hadn't known
12 or didn't know prior to the war or prior to
14 A. Yes, it's true about others that he didn't know.
15 The food came for them. He helped everybody. He
16 always said, "You'll be out of here," and he boosted
17 our morale a little.
18 In the affidavits bundle, at page 30, Meho Sikiric says:
19 "I didn't know Dragan Kolundzija prior to the war. On Kole's
20 shift, it was as if we were at a hotel. When he was there, we were not
21 beaten, mistreated, or killed. We were allowed to freely walk in front of
22 our room, et cetera. Kole behaved properly towards all the detainees."
23 At page 33, the evidence of a protected witness, a Muslim, gave
24 him the opportunity to use the telephone, "allowed my family to bring me
25 food, medicine, insecticide powder, asking nothing in return. Thus I can
1 with certainty swear as I saw, that Kole allowed family members of the
2 other detainees to bring food and medicine to all detainees, regardless of
3 whether he knew them or not."
4 Page 56, the evidence of another Muslim detainee:
5 "I didn't know Dragan Kolundzija prior to the war. My own family
6 was able to bring food and I saw that other families were able to bring
7 food on Kole's shift, regardless of whether Kole knew the detainees or
9 And the evidence of Matanovic, at page 64, a Croat detainee at
11 "I did not know Kole prior to the war. Kole always gave -- I
12 cannot say that Kole only helped me. He helped everyone. He knew to go
13 with his own truck, even as far as from his house to Varmaz, to bring us
14 food. I recall when my nephew had an infected ear. He was in pain so
15 much, he wanted to kill himself or run away so the guards would kill him.
16 When the military doctor arrived, Kole begged him for some antibiotics for
17 my nephew. Kole always gave me food, even so that I could take it back to
18 the other detainees. Kole always stopped at our room and said, 'When you
19 see a truck or a large group of people, please come into your rooms,
20 because there are only ten of us guards and I'm afraid we wouldn't be able
21 to protect you well enough if we had to.'"
22 And he lists a number of good things that Kolundzija did, and he
24 "Kolundzija said, 'We have orders to protect you and not to beat
25 you, mistreat you, or kill you. I know that on my shift, no one will ever
1 kill, mistreat, or insult anyone, because you're all equal to me.'"
2 And he spoke about an incident trying to get the water hydrant
3 switched on. He said:
4 "I know that Kole and his guards behaved to the same to the Room 3
5 detainees as to the rest of us. When we told Kole that the people in Room
6 3 had not been given anything to eat, he sent people to tell them, 'Today,
7 the first people to eat will be those in Room 3.' I remember that because
8 on that day, there was not enough to eat and I went without a meal. Kole
9 often told us that, 'People, if you see any truck that's approaching or a
10 group of many armed soldiers enter your rooms, you know there are idiots
11 out there and many of them went to the battlefield and have gone out of
12 control.' When I left Prijedor, I couldn't sleep for ten months and every
13 child's cry reminded me of the camp. I fear to think how few of us would
14 have survived were it not for Kole."
15 Of course he knew a lot of people, because the camp was in
16 Prijedor, where he had been born and always lived, as did most of the
17 detainees. He could hardly help but assist people that he knew. But
18 there's no evidence at all that it was preferential for those he knew.
19 Furthermore, there's not the slightest evidence he ever
20 discriminated against Muslims and Croats and other non-Serbs, and I've
21 read passages from Matanovic's affidavit, a Croat. There's the evidence
22 at page 14 of our sentencing brief, from Witness A:
23 "I knew him from the town. He socialised with Muslims. I would
24 like to point out one more thing: I don't know how a Muslim flag ended up
25 in the compound. This was a crescent and a star. And Aco is a Muslim.
1 He took the flag and started burning it. Kole appeared and asked him what
2 he was doing, and he said, 'I want to burn the flag.' And then Kole
3 kicked him and said, 'Leave that flag alone. It represents somebody's
5 And at page 38, Witness DK said:
6 "Kole never differentiated between Serbs, Muslims and Croats. He
7 had a truck, he had a private hauling business, and he provided services
8 to private parties and to the state firms and made no distinction between
9 various groups or party affiliations."
10 There's the affidavit of Suad Varmaz at page 1 of the affidavits:
11 "I knew Kole from middle school. I'm certain he was never a
12 nationalist, because we socialised with many persons. Regardless of what
13 nationality they were, and he was always ready and willing to help
14 others. He never said anything derogatory about Muslims or Croats. I'm
15 absolutely certain and can affirm and swear to this. He always respected
17 And he was a Muslim.
18 Then there was Dejanovic, at page 16:
19 "Our circle of friends always had persons of different
20 nationalities. With certainty, I attest and declare that I never noticed
21 any hatred or prejudice in Kole for anyone, regardless of their religion
22 or nationality. Kole was not a nationalist, and this I can affirm based
23 upon the fact that I was chosen to be his best man, godbrother at his
24 wedding, and were he a nationalist, certainly he wouldn't choose someone
25 from another religion such as me."
1 And a mass of other evidence that he didn't discriminate.
2 Isn't it one of the most astonishing features of this case that no
3 fewer than 41 Muslim, Croat victims of this appalling camp and its
4 atrocities, who would have every reason for hating a Serb, have spoken up
5 for him before this Trial Chamber. The Chamber will recall some of their
7 Witness A:
8 "I want to tell the truth about Kole and I want to thank him for
9 helping me and many other prisoners to survive. That was one of the best
10 shifts in the Keraterm camp. He fought for our well-being and our
12 Witness B:
13 "Many also commended Kole's behaviour. There were some who said
14 that all of us should have been killed there and that we should thank Kole
15 for surviving, that he was the one who saved us."
16 Witness C:
17 "Kole's shift was the best. It was better than the others."
18 Hajrudin Zebovic:
19 "I believe that other detainees felt that it was easier on us
20 because of those little things that meant a great deal to us. They felt
21 about Kole's shift the same way that I did."
22 Witness M:
23 Q. His reputation as a guard in the camp was a good
25 A. Yes, and I share that view. From the first day, and
1 onward, I never felt that there was any better
2 treatment. He did help people frequently.
3 Witness P:
4 Q. He was being brave
5 A. Yes. It was to the benefit of the inmates.
6 Selko Saldumovic:
7 "Yes, he was kind. I never saw him doing anything that could
8 hurt anyone or inflict anything bad on any of the detainees."
9 Witness W:
10 "It's correct that he tried to alter the conditions of the camp
11 when he was on duty."
12 Witness DN:
13 "Kolundzija was the man, the right man, in his right place, a good
14 man, a fair man."
15 And Suad Varmaz:
16 "He always respected others, which is why he was loved and
17 respected by others."
18 Could there be more cogent evidence that what little harm
19 Kolundzija did was certainly not discriminatory; and being so, does that
20 not remove a great deal of the sting against him for the offence of
21 persecution and entitle him to ask for that matter to be taken into
22 consideration in his mitigation? And may I make this further
23 observation: Wouldn't such victims who have given evidence in such a
24 powerfully supportive way be astonished and saddened if this Chamber were
25 to deal as harshly with Kolundzija as the Prosecution request?
1 Sixthly, Kolundzija accepted the promotion to guard from shift
2 leader in order to help the detainees, not because he was in agreement
3 with the persecution of Muslims and Croats, as the Prosecution allege.
4 The Prosecution have got it quite wrong. They have totally misunderstood,
5 in our respectful submission, the situation. The Prosecution say at page
6 33, paragraph 87 of their sentencing brief:
7 "Not only did he not quit in protest, but he actually accepted a
8 promotion from guard to shift leader in full knowledge that the beatings
9 and murders were taking place and were likely to continue and in full
10 knowledge that the camp conditions were horrendous."
11 And that was repeated before you yesterday by Mr. Ryneveld. One
12 moment's thought is enough to see that he didn't accept promotion to do
13 harm, or he would have done it. Witness after witness would have been
14 called to say he killed, he mistreated, he encouraged his guards to do so,
15 which of course is quite the opposite of the evidence, that once he was a
16 shift leader, he helped detainees because he was now in a better position
17 to help, by stopping violent aggressors who came into the camp, by locking
18 the rooms at night to prevent call-outs, by letting the detainees out to
19 get fresh air every day, by getting food and water and blankets and
20 medicines to them, which he would have had no power to do as an ordinary
21 guard under another shift leader that he did have the power to do, as he
22 was a shift leader.
23 And haven't the victims themselves, in effect, told the Chamber:
24 "Thank goodness Kole was a shift leader. Thank goodness he bothered.
25 Thank goodness he refused to remain one of the nameless and forgotten
1 guards who were in a position to do only harm"? And we ask the Chamber to
2 give Kolundzija credit for being a shift leader so that he could do good,
3 not harm, and to mitigate the sentence accordingly.
4 So as to these six reasons for scaling down the sentence that
5 might otherwise have been appropriate, if the punishment is to fit the
6 extent of the crime, as this very Chamber said in Todorovic, that the
7 penalty must be proportionate to the wrongdoing, then how can what
8 Kolundzija did warrant a sentence at the top end of the scale that the
9 Prosecution are requesting in their three to five assessment of the value
10 of this -- of his crime and their asking for five years? Surely with so
11 little blame, he must be sentenced at the lower, not the higher end of the
12 scale. And there are several more reasons consistent with what the
13 International Tribunal have thought are appropriate reasons for mitigating
14 an accused's sentence.
15 Seventh, he has pleaded guilty, and by so doing has saved the
16 Trial Chamber valuable time and money, as the Prosecution concede in their
17 sentencing brief and yesterday. The Defence hadn't started when he
18 changed his plea, so there's been the saving after week or two of
19 witnesses who would have been called live as the trial continued, and the
20 Prosecution may have wanted to challenge what they had to say. Witnesses
21 of fact, witnesses of character, and expert witnesses.
22 In addition, there would almost certainly have been appeals, if
23 the Chamber will forgive me, on evidential matters such as the 98 bis
24 ruling, the ruling on further Prosecution disclosure, and of course, if
25 the Chamber had convicted Kolundzija of any of the counts, an appeal. And
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 he has waived all those rights and saved all that time.
2 And in addition, insofar as Kolundzija's plea may have
3 precipitated the other pleas, then the time saved is multiplied by the
4 overall proceedings in this matter. And if pleas are to be encouraged in
5 order to save valuable time, and one cannot help noticing that before this
6 case, there have been only three pleas of guilty out of 47 cases completed
7 or awaiting trial at this Tribunal to date. The encouragement must surely
8 come by way of a reduced sentence for pleas of guilty.
9 Of course, the Chamber may say that this wasn't a plea of guilty
10 at the earliest stage so the benefit has to be scaled down. In our
11 respectful submission, that would be unjust in this particular case
12 because had Kolundzija pleaded before the trial, the Chamber wouldn't have
13 known the truth about what happened at Keraterm, and Kolundzija would have
14 inevitably been sentenced to a far longer term of imprisonment unjustly.
15 Because had there been an earlier plea, what evidence would there
16 have been to counter the Prosecution's allegations which they made at the
17 start of this case that Kolundzija had command responsibility under
18 Article 7(3), or that he could have altered the basic conditions of the
19 camp and refused to do so, with the power to discipline and punish people
20 under him, or that guards on his shift that beat, killed, or abused
21 detainees on his shift, or that he condoned the meetings and the
22 mistreatment? That was all part of their opening allegation. There
23 wouldn't have been all that evidence.
24 Had the Chamber sentenced on the basis of those allegations, in
25 the absence of so much evidence to the contrary, wouldn't that have been a
1 great injustice to Kolundzija and his family? Surely justice has been
2 very much assisted by the lateness of the plea, and the Chamber wouldn't
3 want to hold the lateness of the plea against Kolundzija in any way.
4 Eighthly, Kolundzija's change of plea indicates, does it not, a
5 significant degree of remorse? And he said from the dock this morning, "I
6 see now I should have done more," and he kept repeating it. They were his
7 words. And this element the International Tribunal, as national
8 jurisdictions throughout the world have always done, values remorse
9 because it indicates honesty, it helps in establishing the truth of what
10 happened, and in a memorable sentence in the Erdemovic judgement, "For it
11 is the truth that cleanses the ethnic and religious hatreds and begins the
12 healing process."
13 Of course it's always easy for a defendant to say he feels sorry,
14 and often those of us that take part in these proceedings know that the
15 plea has been entered quite simply because there's an advantage. There's
16 been a plea bargain. The Court has indicated that it will reduce a
17 sentence because of the saving of time. But in Kolundzija's case, there's
18 an element that's perhaps far more cogent than any other evidence that
19 indicates real remorse.
20 Your Honours listened to and read our submissions at the end of
21 the Prosecution case that there wasn't sufficient evidence to convict
22 Kolundzija and that he should be acquitted at that stage. The Chamber
23 ruled against those submissions but said that it did so at that stage
24 whilst not considering whether it would have been satisfied beyond
25 reasonable doubt of his guilt.
1 I respectfully ask the Chamber whether on the evidence adduced
2 until then, let alone the evidence that has been subsequently adduced by
3 the witnesses in Kolundzija's favour, a reasonable Tribunal would have
4 been satisfied beyond reasonable doubt. And if the answer is no, then
5 this plea must be about as indicative of true remorse as it's possible to
6 get, because what Kolundzija is saying is, "Even if I am to be acquitted
7 or even if I stand a good chance of being acquitted, still I want to
8 honestly admit my guilt," limited in its extent though it is by a plea of
9 guilty. And if there's true remorse, then that surely is a further reason
10 for reducing the sentence below that for which the Prosecution are
12 Ninthly, Kolundzija has always borne a good character, another
13 factor which the International Tribunal considers for mitigation. He's
14 borne that good character before and since the war in Bosnia. He has not
15 just been without criminal convictions of any kind. It's more than that.
16 Witness after witness has said what a good, kind, honest, decent man
17 Kolundzija was and is. And we have affidavits which the Court has from
18 people who have known him before and after Keraterm who add even more
19 evidence to support his good character. And I thank the Chamber for
20 giving us the extra time yesterday morning to put those affidavits in
22 Tenthly, it follows - and I mentioned it only because it's a
23 factor specifically mentioned as worthy of mitigation in, I think, the
24 Aleksovski judgement - that there's the absence of any prior
25 discriminatory behaviour against Muslims, Croats, or non-Serbs, and I have
1 already directed the Chamber to the evidence that supports this. And no
2 Prosecution witness has given evidence to the contrary because none
4 Eleventh, Kolundzija has comported himself well whilst in the
5 custody of the United Nations Detention Unit, another factor which the
6 International Tribunal says it values. In the Tadic case, it said that.
7 He's always behaved in a gentlemanly fashion, says Mr. McFadden, the head
8 of the facility. He's shown good respect for the management and staff of
9 the Detention Unit and has at all times complied with the rules of
10 detention and the instructions of the guards. On occasion, when there's
11 been friction or tension, he's always shown example to others in helping
12 to defuse such tensions. He is willing and helpful and is engaged in work
13 programmes. He shows respect for his fellow detainees and so makes life
14 more tolerable for all in detention through his attitude and behaviour. A
15 report, we submit, is wholly consistent with the account of Kolundzija's
16 behaviour at Keraterm, which the Chamber has heard. Does that also not
17 require a reduction in sentence?
18 Twelvethly, his age and his family circumstance, a factor valued
19 in the Furundzija judgement. He is 41 years old now, a relatively young
20 man with a young family, aged and unwell parents, and his mother no longer
21 lives in Germany.
22 He has opportunities for future employment, which again have been
23 set out in the affidavit. There are letters from Progress, from
24 Autotransport, from Egzotik Turs, companies that are prepared to employ
25 him. So he has a future ahead of him.
1 And as the Trial Chamber said in Erdemovic of that defendant, "He
2 is reformable and should be given a second chance to serve his life afresh
3 upon release while still young enough to do so."
4 And may I add a point without being overpretentious? Since
5 Kolundzija never was or is likely to be a political leader or a man of
6 particularly high standing in the community in his status, that it's
7 obvious, if one reads the affidavits, that in a very small way, his return
8 to normal life in Prijedor may do something to help to restore the ethnic
9 harmony that once existed in that benighted part of what was and what may
10 be, will be again a lovely country.
11 Thirteenth --
12 JUDGE ROBINSON: Sir Ivan, you're quite content to provide a
13 thirteenth reason. No triskaidekaphobia?
14 MR. LAWRENCE: I think for this Court to suggest that 13 is an
15 unlucky number would not be a reasonable observation to make.
16 JUDGE ROBINSON: I think you're quite right. We have no fears
17 like that.
18 MR. LAWRENCE: I certainly don't think that this Court
19 discriminates against those who rely upon number 13.
20 In deciding what punishment Kolundzija deserves, the Chamber will,
21 of course, want to take into account the extent of the punishment he's
22 already received and such: The punishment of separation from his wife
23 Snezana, which needs no affidavits, though there is one from her;
24 separation from his elderly parents, one of whom is unwell and whose end
25 is likely to have been speeded by concern for his son; the separation from
1 his children, who at those ages need a further -- a father present when
2 they're growing up; and the mental anguish leading to the mental illness
3 which he's suffered and about one aspect of which the Court knows because
4 the Court had to adjourn. And that is covered by Professor Maric in his
5 report, and the fortunately temporary mental disorder is covered by
6 Dr. Vera Petrovic in her report; surely evidence of mental suffering
7 already endured as a result of Keraterm and of the trial. And finally,
8 the punishment of two years, four months in custody, which is the
9 equivalent of a three and a half year prison sentence already served.
10 Your Honours, we submit that these are 13 strong grounds for
11 reducing the sentence below that which the Prosecution seek of five years'
12 imprisonment for Kolundzija.
13 I hope I haven't missed any relevant matters. If the Chamber is
14 concerned about retribution, then Todorovic explained that that meant that
15 the penalty must be proportionate to the wrongdoing, and I ask how much
16 wrong did Kolundzija actually do? If the Chamber is concerned about
17 deterrence, then I ask what deterrent sentence would the Chamber want to
18 impose on one who at risk to himself stayed at Keraterm as a shift leader
19 to do so much good? The Chamber may be concerned about the protection of
20 society, and then I ask does society need to be protected against a man
21 who 41 Muslim and Croat victims have spoken up for?
22 So I come to the end of our submissions on Kolundzija's behalf,
23 and I'm most grateful to the Chamber for the consideration that you've
24 shown me.
25 Is the situation not fairly and accurately set out at the
1 conclusion of our written brief at page 41, paragraph 13 that here is a
2 man who's been of excellent character; shown a considerable degree of
3 remorse in pleading guilty, particularly when he might have expected to be
4 acquitted; couldn't have deserted his post without risk of his life; had
5 no powers to control guards who were not on his shift, prevented
6 mistreatment from guards who were on his shift, with no powers to change
7 the basic conditions of the camp; who exercised his only power, which was
8 to complain to his superior on numerous occasions; and who, despite being
9 a Serb at a time of acute secular conflict, nevertheless did much to
10 relieve the misery of Muslim and Croat detainees, even refusing to obey
11 orders at considerable personal risk that no fewer than 41 victims at
12 Keraterm have spoken up for him before this Chamber; and a man, moreover,
13 who has suffered severely since his imprisonment and in which
14 circumstances, in our submission, mitigation must surely be of the highest
16 And does it not follow that the Prosecution have demonstrated a
17 certain unreality in their remarks about Kolundzija's role that a request
18 for a sentence of five years' imprisonment on him is far too high, and we
19 ask the Trial Chamber to say that in all the circumstances of this case,
20 which is unique, Dragan Kolundzija has already been punished enough for
21 what little wrong he's done at Keraterm, and that serving already the
22 equivalent of a three-and-a-half-year sentence, justice would be served in
23 his case by passing such a sentence as will allow him to be released back
24 to his home and to his family at Prijedor forthwith.
25 Thank you very much.
1 JUDGE ROBINSON: Thank you, Sir Ivan.
2 MR. LAWRENCE: Can I just hand up, please, formally the report
3 from Mr. Tim McFadden at the Detention Unit --
4 JUDGE ROBINSON: Yes. And --
5 MR. LAWRENCE: -- as an exhibit.
6 JUDGE ROBINSON: That will be given an exhibit number.
7 THE REGISTRAR: Exhibit D4/3.
8 JUDGE ROBINSON: Is there any other matter that any party wishes
9 to raise? If not, we'll adjourn. We will consider -- yes, Ms. Baly.
10 MS. BALY: Your Honour, there is that one matter that Your Honours
11 asked me to clarify.
12 JUDGE ROBINSON: Yes. That's right, yes.
13 MS. BALY: Perhaps we could move into closed session.
14 JUDGE ROBINSON: Yes. Closed session, yes.
15 [Private session]
13 Page 5775 – redacted – private session
13 Page 5776 – redacted – private session
12 --- Whereupon the hearing adjourned at 10.53 a.m.,
13 sine die