Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Monday, 15 October 2007

 2                          [Appeals Hearing]

 3                          [Open session]

 4                          [The appellant entered court]

 5                          --- Upon commencing at 9.59 a.m.

 6                          [Appeals Chamber and legal officer confer]

 7            JUDGE LIU:  Well, good morning, ladies and gentlemen.

 8            Mr. Registrar, may I ask you to call the case, please.

 9            THE REGISTRAR:  Good morning, Your Honours.  This is case number

10    IT-96-23/2-A, the Prosecutor versus Dragan Zelenovic.

11            JUDGE LIU:  Thank you very much.

12            May I ask Mr. Zelenovic if you can hear me and follow the

13    proceedings in a language you understand through the translation.

14            THE APPELLANT: [Interpretation] Yes.

15            JUDGE LIU:  Thank you very much.  You may sit down.  If you have

16    any problem in following the proceedings, please inform me as soon as

17    possible.

18            Well, we now call for the appearances.

19            For the Prosecution, please.

20            MS. BRADY:  Good morning, Your Honours.  Helen Brady appearing on

21    behalf of the Prosecution together with Julia Thibord and our case

22    manager, Sebastiaan van Hooydonk.  Thank you.

23            JUDGE LIU:  Thank you very much.

24            And for the Defence of Mr. Zelenovic, please.

25            MR. JOVANOVIC: [Interpretation] Good morning, Your Honours. I'm

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 1    Zoran Jovanovic, attorney-at-law.  I'm representing Mr. Zelenovic. Thank

 2    you.

 3            JUDGE LIU:  Thank you very much.

 4            As the registrar just announced, this is an appeal hearing in the

 5    case of the Prosecutor against Dragan Zelenovic.

 6            At the outset, I'll briefly summarise the appeal which is pending

 7    before the Appeals Chamber and the manner in which we'll proceed today.

 8            The appeal deals with crimes committed in Foca municipality and

 9    its surrounding villages from April to July 1992.  At the time of the

10    events, Mr. Zelenovic was a member of the so-called Dragan Nikolic Unit, a

11    military unit in Foca which in the beginning of the war was part of the

12    Bosnian Serb Territorial Defence and from the summer of 1992 onwards part

13    of the Bosnian Serb army.

14            Mr. Zelenovic was a soldier and a de facto a military policeman.

15    He pled guilty and has admitted individual criminal responsibility of the

16    crimes he was charged for.

17            Dragan Zelenovic appeals from a judgement rendered on the 4th

18    April, 2007 by Appeal Chamber -- by Trial Chamber I, composed of

19    Judge Orie, presiding; Judge Van Den Wyngaert; and Judge Moloto.

20            The Trial Chamber found Mr. Zelenovic guilty on all charges

21    contained in the plea agreement; namely, seven counts of crimes against

22    humanity, three of which charged torture as provided for by Article 5(f)

23    of the Statute and four of which charged rape, as provided for by Article

24    5(g) of the Statute.  Dragan Zelenovic was sentenced to a single sentence

25    of imprisonment of 15 years.

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 1            Dragan Zelenovic filed his Notice of Appeal on the 27th April

 2    2007, setting out two grounds of appeal.  On the 25th May, 2007, he filed

 3    his appeals brief, while the Prosecution filed the response brief on 25th

 4    June 2007.  Zelenovic's reply brief was filed on the 3rd of July, 2007.

 5            I will now briefly summarise the grounds of appeal.

 6    Dragan Zelenovic brings two grounds of appeal.  In his first ground of

 7    appeal, Dragan Zelenovic alleged that the Trial Chamber erred by not

 8    adequately assessing the mitigating circumstances in the sentencing

 9    judgement; namely, first, the appellant's admission of guilt which gives

10    psychological benefit for victims who will not be required to give

11    evidence; and second, the appellant's cooperation with the Prosecution in

12    general.

13            Under his second ground of appeal, Dragan Zelenovic submits that

14    the Trial Chamber erred by not taking into account the appeal judgement in

15    the case of Prosecutor versus Radovan Stankovic before the State Court of

16    Bosnia and Herzegovina.

17            During this appeal hearing, counsel may argue the grounds of

18    appeal in order that they consider most suitable for the -- for the

19    presentation, but I would urge them not just to repeat verbatim or to

20    extensively summarise what is in the briefs.

21            I also wish to note that by letter of 8th October 2007, the

22    Appeals Chamber has invited the parties to address specific issues during

23    the hearing.  The Appeals Chamber also noticed that the Defence filed a

24    response in written form to those questions -- to those questions on the

25    11th of October, 2007.  The Prosecutor made a reply orally during this

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 1    hearing, if the case may be.

 2            These invitations are made, I want to address, without a prejudice

 3    to any other matters the parties or the Appeals Chamber may wish to raise

 4    and in no way constitute an expression of an opinion on the merits of the

 5    appeals.

 6            I would now like to briefly recall the appeal is not a trial de

 7    novo and the appellant must not merely repeat his case from the trial

 8    level.  Rather, in accordance with Article 25 of the Statute, the

 9    appellant must limit his arguments to alleged errors of law which

10    invalidate the decision or allege the error of fact occasioning a

11    miscarriage of justice.

12            Additionally, it should be recalled that the appellant has the

13    obligation to provide the precise references to materials supporting his

14    arguments on appeal.

15            During the proceedings, if any party requires private session,

16    please just inform us.

17            This hearing will proceed according to the scheduling order issued

18    on the 20th September 2007.  Counsel for Dragan Zelenovic will present his

19    submissions for 30 minutes and the Prosecution will present his response,

20    also for 30 minutes.  Counsel for Dragan Zelenovic will have 15 minutes to

21    present his reply, and then Mr. Zelenovic, should he wish to address the

22    Bench, will have 15 minutes to do so.

23            I wish to remind the parties that Judges may interrupt them at any

24    time to ask questions or they may prefer to ask questions following each

25    party's submission.

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 1            Having said that, I would now to invite the counsel for

 2    Dragan Zelenovic to present the submissions in support of his appeal.

 3            Now, Mr. Jovanovic, you have the floor, please.

 4                          Submissions by Mr. Jovanovic:

 5            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.  Thank you

 6    for the time allotted to me by the Chamber.  In accordance with the

 7    scheduling order, the Defence will comply with the instructions of the

 8    Appeals Chamber and we will not be repeating the claims made in the

 9    appellate proceedings so far and our appellate brief, so I believe that I

10    will take less time than was anticipated.

11            The first ground for appeal by Mr. Zelenovic's Defence has to do

12    with the fact that with his admission of guilt, Mr. Zelenovic relieved the

13    victims from the obligation to testify in this case.  The Trial Chamber in

14    determining his sentence gave weight to this circumstance, but it was in a

15    general -- generalised manner, the Defence contends, contrary to the

16    decisions reached by the other Trial Chambers and the jurisprudence of the

17    Tribunal.

18            It is quite logical that if a -- if an accused pleads guilty to

19    the charges, all the witnesses who were slated to testify in that case do

20    not have to do so.  The Defence believes that in this specific case - and

21    we do not want to set aside the fact that the sentence must reflect the

22    gravity of crimes - we contend that this is a category of victims that is

23    particularly sensitive and vulnerable.  We would like to remind the

24    Chamber that the witnesses who were on the witness list for the

25    Prosecution in this case, that they had already testified in the Kunarac

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 1    case, in the Gojko Jankovic case, and in the Radovan Stankovic case that

 2    was tried before the State Court of Bosnia and Herzegovina. These are rape

 3    victims.

 4            In all those cases, witnesses had to undergo examination-in-chief,

 5    cross-examination, and the Defence in those cases relied on the claim that

 6    their testimony was not truthful.

 7            According to the expert report that was attached to the appellate

 8    brief by the Defence, is a circumstance that re-traumatises those

 9    witnesses.  They have to relive all those events.  They also have to be

10    cross-examined by the Defence, and in light of the consequences they

11    suffer, this is by no means a pleasant experience.  This is why the

12    Defence believes that these circumstances should be given more weight,

13    this despite the fact that the Trial Chamber was not under an obligation

14    to give weight to each particular mitigating circumstance and to -- to

15    provide the reasoning for giving this weight.

16            This is a peculiar case.  We're talking about the mass rapes, as

17    they were qualified, in Foca.  Mr. Dragan Zelenovic is the only person to

18    plead guilty to those crimes.  The fact that by doing so he spared the

19    victims and the fact that this means that their testimony so far is

20    validated by his admission of guilt, this should be given proper weight.

21            The Trial Chamber actually relied on the jurisprudence of the

22    Tribunal so far, and that is that all the witnesses in a case where there

23    was a guilty plea are relieved of the obligation to testify.

24            The Defence therefore believes that the Trial Chamber erred when

25    it considered this mitigating circumstance in a generalised manner.  We

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 1    believe that the Trial Chamber should have given more weight to the expert

 2    report attached to the brief, to the sentencing brief provided by the

 3    Defence after the plea agreement.  And also we believe that in the current

 4    practice before this Tribunal every time the Trial Chamber took this

 5    position, that a guilty plea relieves the witnesses from the obligation to

 6    testify, those Trial Chambers never had before them this kind of expert

 7    report dealing with this kind of victims, explaining the state of mind of

 8    the victims of such crimes, after -- even after so many years, and the

 9    consequences that calling such witnesses to appear before a tribunal to

10    testify would have for them.

11            The second aspect that the Defence would like to argue now has to

12    do with the cooperation by Mr. Dragan Zelenovic with the Office of the

13    Prosecutor.  The Trial Chamber considered this to be some kind of initial

14    cooperation, following the reports of the Prosecution and the Defence on

15    this matter.

16            Now I would like to ask the Chamber to go into private session for

17    reasons that are indicated in the reply that the Defence submitted

18    regarding the confidentiality of a part of the appeal filed by the

19    Defence.

20            JUDGE LIU:  Yes.  Any objections?

21            MS. BRADY:  No, no objection, Your Honour.  Just to state that the

22    Prosecution would have preferred in the interest of transparency to make

23    all submissions relating to cooperation public.  However, in light of the

24    fact that the Prosecution agreed with Mr. Zelenovic during the sentencing

25    phase, that these discussions would remain confidential, given his wish to

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 1    retain the confidentiality, we're not in a position to waive it.  Thank

 2    you.

 3            JUDGE LIU:  Thank you very much.

 4            After hearing of the two parties, we decided to go to the private

 5    session.

 6            Now we are in the private session, please.

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24                          [Open session]

25            THE REGISTRAR:  We are in open session, Your Honours.

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 1            JUDGE LIU:  Thank you.

 2            You may proceed, please.

 3            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

 4            The Trial Chamber invited the parties to comment on the decision

 5    in the case of the co-accused Radovan Stankovic in the proceedings before

 6    the State Court of Bosnia-Herzegovina.  The judgement has become final.

 7    After the trial, the nonfinal judgement became available to the public

 8    once it was handed down by the Trial Chamber.

 9            The Defence contends that if the Trial Chamber invited the parties

10    to comment on the judgement and sentence of the co-accused,

11    Radovan Stankovic, under the initial indictment before this Tribunal and

12    if the Trial Chamber considered that such a judgement should be

13    considered, the Defence feels it was not given due weight, in spite of the

14    fact that this Tribunal is not bound by the legislation of the countries

15    of the former Yugoslavia or the jurisprudence before the national courts

16    in those countries.

17            The Defence contends that this judgement should be taken into

18    account in such a manner as to show the differences -- to reflect the

19    differences in the actions of Dragan Zelenovic compared to others in

20    connection with the events in Foca.

21            Mr. Radovan Stankovic has been sentenced to 20 years in prison,

22    according to the final judgement; whereas, Mr. Zelenovic has been

23    sentenced to 15 years.  The Defence has already stated the differences in

24    its brief, and these differences justify the different sentence.

25            If the proceedings conducted before the State Court of Bosnia and

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 1    Herzegovina indicated the significance of Mr. Dragan Zelenovic's guilty

 2    plea before this Tribunal, this should be taken into account.

 3            There were numerous problems in the proceedings before the State

 4    Court of Bosnia-Herzegovina.  Mr. Radovan Stankovic's actions were such as

 5    to threaten and humiliate the witnesses.  Ultimately, he evaded serving

 6    his sentence, although he was sentenced to 20 years of prison in Foca,

 7    where the crimes were committed; however, he escaped.

 8            Mr. Dragan Zelenovic is the only accused, if we take into

 9    consideration the proceedings against Kunarac et al., Jankovic, and

10    Stankovic, he is the only one who actually by his guilty plea confirmed

11    the events that had taken place there.  And although - I repeat - this

12    Tribunal is in no way bound by the jurisprudence or the legislation of the

13    states of the former Yugoslavia, the Defence still feels that in the

14    interests of justice these facts should be given due weight.  And bearing

15    in mind that the -- that the sentence must correspond to the gravity of

16    the crimes, this circumstance and the judgement in the Prosecutor versus

17    Radovan Stankovic case should throw light on the significance of

18    Dragan Zelenovic's guilty plea, and this should be taken into account when

19    meting out the sentence of Mr. Zelenovic.

20            These are all the reasons put forward by the Defence in its

21    appeal, which the Defence contends should have an influence on the

22    sentence.

23            Let me end by saying something that is well known:  The

24    Prosecution has challenged the grounds of appeal of the Defence and

25    considers that the Trial Chamber has given due weight to all the

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 1    mitigating circumstances.  Let me, however, remind you that in these

 2    proceedings, the Prosecution had proposed a sentence of 10 to 15 years in

 3    prison, so my assumption is that had a lower sentence been handed down,

 4    the Prosecution would have been in agreement with it.  I suggest therefore

 5    that the Appeals Chamber take into consideration all these arguments and

 6    hand down a milder sentence for Dragan Zelenovic.

 7            Thank you.

 8            JUDGE LIU:  Thank you very much, Mr. Jovanovic.

 9            Any questions from the Bench?  I noticed Judge Schomburg.

10            Judge Schomburg, you may have the floor.

11            JUDGE SCHOMBURG:  Thank you, Mr. President.

12                          Questioned by the Court:

13            JUDGE SCHOMBURG:  First of all, a technical question that we can

14    discuss both here today and later on in the judgement is the Annex to your

15    submission of 11 October 2007.  I know it's in the public domain because

16    in -- in the Internet, but it is -- is it your intention to tender these

17    documents into evidence or you want to ask the Chamber that the Chamber

18    proprio motu admit -- admits this into evidence?

19            MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.  It's an

20    integral part of the response by the Chamber to the parties.  The Defence

21    has submitted information confirmed by the Prosecution and it was

22    handed -- this was -- this letter was handed to the Defence today.  The

23    date is the 27th of March, before the Trial Chamber's decision was issued,

24    but it became available to the public in written form on the 17th of

25    April.  So the Defence used the information it had when answering Your

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 1    Honours' questions.  The Defence feels that the Chamber could proprio motu

 2    adopt this information and enter it into the evidence.

 3            JUDGE SCHOMBURG:  Okay.  Thank you.

 4            Then there's the first follow-up question:  You submit that the

 5    Trial Chamber erred when handing down the judgement.  What would you have

 6    expected from the Trial Chamber?  In particular, with a view to the

 7    mandatory expeditiousness of hearing a criminal case, should the Trial

 8    Chamber have waited until the appeal judgement was rendered, as we know

 9    now, the 17th of April, 2007?

10            MR. JOVANOVIC: [Interpretation] No, Your Honours, absolutely not.

11    It need not have waited.  It shouldn't have waited.  The Defence in its

12    submission on the sentencing did not put forward any position on this.  It

13    is the Prosecution that raised the issue of the judgement not being final;

14    however, the Chamber asked the parties to express their views on this.

15    The first instance judgement handed down a sentence of 15 years to

16    Mr. Stankovic.  He was found guilty.  And the Defence felt at the time

17    that the charges were far graver than the ones defined in the agreement

18    between the Prosecution and the Defence, but the Chamber did not take this

19    judgement into account, saying that it was not final. The moment it became

20    final, the Defence put forward its position in connection with this

21    judgement.

22            JUDGE SCHOMBURG:  Thank you.  You brought me to the final

23    question.  I am in para 11 of the Trial Chamber judgement.  It reads that

24     "As regards the plea agreement" -- and I quote:  "In response to a

25    question by the Trial Chamber, the Prosecution explained that the

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 1    exclusion of certain victims referred to in the indictment from the plea

 2    agreement was based on a consideration of the available evidence."

 3            Can I take it from this that the cooperation in the plea agreement

 4    as such was limited to that -- to those crimes of rape and torture which

 5    were more or less undisputable because Mr. Kunarac inter alia is already

 6    finally convicted and would always be available as a witness against your

 7    client?  So what indeed was your contribution to this plea agreement?  Is

 8    it correct as it is reflected in the judgement that only when there was

 9    available evidence your client admitted his guilt?

10            MR. JOVANOVIC: [Interpretation] Your Honour, talks with the

11    Prosecution began very soon after Dragan Zelenovic was transferred to The

12    Hague from Sarajevo.  The Russian Federation, where Mr. Dragan Zelenovic

13    was arrested and detained, extradited Mr. Zelenovic to Sarajevo, not

14    directly to The Hague, in spite of the fact that there was an indictment

15    before this Tribunal.  And Sarajevo transferred him to The Hague.  And in

16    spite of the 11 bis motion, the Defence very soon started talking to the

17    Prosecution and achieved an agreement with the Prosecution, regardless of

18    the possible referral of this case under Rule 11 bis to Sarajevo,

19    regardless of the venue where the proceedings might have been held or the

20    evidence that might have been adduced, a plea agreement was reached

21    between the Defence and the Prosecution.

22            JUDGE SCHOMBURG:  I'm awfully sorry, but you didn't answer my

23    question.  My question was that -- is it correct when I read the Trial

24    Chamber judgement to that end that only those acts of torture and acts of

25    rape included in the first indictment formed part of the plea agreement

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 1    because it was based on a -- as it reads here, "on a consideration of the

 2    available evidence"?  So that, to put it very directly to you, but all

 3    that was already proven in prior cases, there was an admission of

 4    evidence, however not where additional witnesses would have been -- would

 5    have to be heard.

 6            MR. JOVANOVIC: [Interpretation] Your Honours, Mr. Dragan Zelenovic

 7    admitted what he did.  I do not know whether the Prosecution would have

 8    adduced any additional evidence to the evidence produced in the Kunarac et

 9    al. case or whether there was additional evidence which might have been

10    adduced before the court in Sarajevo had the 11 bis motion been granted,

11    but Mr. Zelenovic admitted everything he had been charged with, regardless

12    of what facts had been established in the Kunarac et al. case and

13    regardless of whether in the proceedings against Dragan Zelenovic the

14    Prosecution might have adduced additional evidence, further evidence.

15            He admitted what he did, and he spoke about everything he knew.

16    And finally, the Trial Chamber found his admission of guilt to be sincere.

17    And not just an act of calculating what evidence had been proved and what

18    facts were known.

19            JUDGE SCHOMBURG:  Thank you.

20            JUDGE LIU:  Thank you, Judge Schomburg.

21            I see no other questions from the Bench.  Thank you,

22    Mr. Jovanovic.  You may sit down, please.

23            MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.

24            JUDGE LIU:  Now we would like to turn to the Prosecution.

25            Ms. Brady, you have the floor, please.

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 1                          Response by Ms. Brady:

 2            MS. BRADY:  Thank you, Your Honours.  I'm just doing a bit of

 3    housekeeping here.

 4            Mr. Zelenovic committed or was complicit in over 30 rapes.  He

 5    admitted these crimes.  He was convicted for these crimes.  And he was

 6    sentenced to 15 years.  He now comes to this court and he asks you to

 7    reduce it, claiming that the Trial Chamber gave insufficient weight to

 8    two mitigating factors:  His plea - in particular, the beneficial effect

 9    on relieving his rape victims from testifying - and his cooperation with

10    the Prosecution.

11            In effect, Your Honours, he's asking this Chamber to re-weigh to

12    his benefit these two mitigating factors which the Trial Chamber already

13    considered.  Since the appellant has not shown that the Trial Chamber

14    abused its discretion by giving insufficient weight to either factor, his

15    argument should be dismissed.

16            In all the circumstances, it cannot be said that a 15-year

17    sentence was excessive.

18            I'll turn first, if I may, to his -- the first sub-error in his

19    first ground, relating to the guilty plea and the benefit in relieving the

20    victims from testifying.

21            The Trial Chamber expressly stated that it gave considerable

22    weight to Mr. Zelenovic's guilty plea.  We see this in paragraphs 68 and

23    46 of the judgement.  And it expressly acknowledged that one reason for

24    doing this was the beneficial effect in relieving the victims from

25    testifying, and this was especially bearing in mind the crimes that they

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 1    endured.  It wasn't, as he submits, in a generalised manner at all.

 2            And I remind Your Honours of paragraphs -- of paragraph 49, where

 3    the Trial Chamber recognised that.  And I quote from the judgement:  "In

 4    cases such as the present, involving serious crimes, such as torture and

 5    rape, with severe consequences for the victims, a guilty plea is likely to

 6    save the victims from reliving the trauma through testifying about the

 7    crimes committed against them."

 8            And it was correct in doing this.  We agree for the reasons that

 9    Mr. Jovanovic has put forward about rape victims being particularly

10    sensitive and the re-traumatisation they may go through by testifying

11    about these matters and we can agree that this was indeed the first plea

12    of its kind in the Foca area.  But to give this factor heightened weight

13    because of the particularly humiliating or traumatising nature of the

14    crimes he committed against the victims, as he urges, would run counter to

15    the fundamental sentencing principle that the gravity of the crime should

16    be the principal consideration in determining its sentence.

17            In other words, a guilty plea cannot get more weight because it

18    admits worse crimes.

19            The fact remains that Mr. Zelenovic is responsible for a litany of

20    very serious crimes.  Mr. Zelenovic raped women and girls on a serial

21    basis.  He raped some women multiple times and in multiple ways.  He

22    participated in gang-rapes of some of his victims.  His criminal conduct

23    lasted a period of months.  He would select his victims from an already

24    vulnerable group of young women and girls imprisoned in detention centres.

25    He and his fellow soldiers would remove them from these centres and take

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 1    them to other places where they would rape them.

 2            Mr. Zelenovic personally raped one victim or assisted other men to

 3    do so on eight separate occasions.  And this girl was 15 years old at the

 4    time.  Twice he gang-raped her with three other soldiers.  On one occasion

 5    a soldier putting a gun to her head.  And he raped another victim three

 6    times; once in a gang-rape with three other soldiers and on another

 7    occasion aiding and abetting 10 other men to do so.

 8            In light of the inherent gravity of his crimes, the trauma of

 9    repeated and multiple rapes which his victims experienced, it cannot be

10    said that the Trial Chamber discernibly erred by sentencing him to 15

11    years.  And we ask you to dismiss this first sub-ground of his -- this

12    first sub-error within his first ground.

13            If I may, Your Honours, now turn to his second sub-error in his

14    first sub-ground -- in his first ground, relating to his cooperation with

15    the Prosecution.  And as I said before, while we would have preferred to

16    make all these submissions in open court in public, because of the

17    agreement that was given to Mr. Zelenovic during discussions, we are bound

18    by that promise and hence I must go into private session now.

19            JUDGE LIU:  Yes.  Shall we go to the private session.

20            MS. BRADY:  Oh, excuse me, Your Honours.  Before -- before we go

21    into private session, I would just like to reiterate our position on this

22    ground.

23            The appellant has not shown that the Trial Chamber gave

24    insufficient weight to his cooperation.  It's clear that, if you look at

25    paragraph 52, that the Trial Chamber already considered and weighed, as it

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 1    was bound to do, both aspects of his cooperation:  The actual cooperation

 2    he had provided, he had given to the Prosecution, which the Prosecution --

 3    which the Trial Chamber called "some initial cooperation"; as well as his

 4    willingness or commitment to cooperate. And in the latter factor, the

 5    Trial Chamber called his willingness or commitment to cooperate together

 6    with the plea the main mitigating factors in the case.  That's at

 7    paragraph 56.

 8            Since he's failed to show the Trial Chamber discernibly erred in

 9    that evaluation, we ask you to dismiss this ground.

10            And now, Your Honours, if I may continue in private session.

11            JUDGE LIU:  Yes.  Shall we go to the private session.

12                          [Private session]

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25                          [Open session]

Page 31

 1            THE REGISTRAR:  We're in open session, Your Honours.

 2            JUDGE LIU:  Thank you.

 3            You may proceed, Ms. Brady.

 4            MS. BRADY:  Thank you, Your Honours.

 5            I've now finished responding to both sub-grounds of his first

 6    ground of appeal, and now Ms. Thibord will address you on his final

 7    sub-ground, relating to the Stankovic judgment of the Bosnian State Court.

 8    Thank you.

 9            JUDGE LIU:  Thank you.

10            MS. THIBORD:  [Microphone not activated]

11            THE REGISTRAR:  Microphone.

12            MS. THIBORD:  Good morning, Your Honours.  I will now address the

13    second ground of appeal, which concerns the sentence imposed by the Court

14    of BiH upon Radovan Stankovic.

15            As already said in answer to your second question, we agree with

16    Mr. Jovanovic.  The sentence was not made public until the 17th of April.

17            Now, Zelenovic compares his sentence with Stankovic, but he fails

18    to show that the Trial Chamber gave him an unfair or manifestly excessive

19    sentence.  As submitted in our response brief at paragraph 30 to 32, the

20    crimes of Zelenovic and Stankovic were in both cases very serious.  In

21    both cases, the victims were brutally and repeatedly raped.  Given

22    similarities in the facts and given the suffering of the victims in both

23    cases, it's hard and somehow inappropriate to determine which crimes are

24    graver.

25            Now, if we take into account Zelenovic's guilty plea, he did

Page 32

 1    receive a sentence which is five years lower than Stankovic.  There is no

 2    manifest disparity.  However, such comparison is not relevant.

 3            The Tribunal should not consider sentences rendered by domestic

 4    courts, even in the event of a Rule 11 bis transfer.

 5            The case law is clear.  And I refer Your Honours to the Jelisic

 6    appeal judgement at paragraph 114 and to the Dragan Nikolic appeal

 7    judgement at paragraph 85.  According to this, Article 24(1) of the

 8    Statute requires to take into account the sentencing practice in the

 9    former Yugoslavia at the time of commission of the crimes.

10            In return, sentences rendered by domestic courts afterwards should

11    not be taken into account, and this for three main reasons:  First, a

12    Trial Chamber when determining a sentence is bound to apply the law of

13    this Tribunal.  Domestic courts, on the other hand, decide sentences on

14    the basis of their own laws.  When an accused is transferred to a domestic

15    court, he's no longer subject to the law of this Tribunal, but this

16    Tribunal remains bound to apply its own law to those tried and sentenced

17    here.

18            Therefore, it cannot and it should not consider sentences rendered

19    under a different law, and it certainly should not modify a sentence on

20    that ground.

21            In fact - and that's my second point - that would undermine the

22    primacy of this Tribunal.  And in this respect, I refer Your Honours to

23    the reasoning of the Appeals Chamber in the Dragan Nikolic judgement at

24    paragraph 84.  Decreasing, or for that matter increasing a sentence based

25    on a sentence issued by a domestic court would set a dangerous precedent,

Page 33

 1    because domestic courts could then unduly influence the sentencing

 2    practice of this Tribunal.

 3            And, third, the Tribunal, and this Chamber in particular, has to

 4    ensure consistency among sentences with this Tribunal and it cannot do so

 5    if it starts looking into sentences rendered by domestic courts outside

 6    this Tribunal and over which the Appeals Chamber has no jurisdiction or

 7    control.  And for all these reasons, this ground of appeal must also be

 8    dismissed.

 9            We ask Your Honours to uphold the Trial Chamber's sentence of 15

10    years.

11            This concludes our submissions, and I'm happy to answer any

12    questions Your Honours may have.

13            JUDGE LIU:  Thank you very much.

14            Yes, Judge Schomburg.

15                          Questioned by the Court:

16            JUDGE SCHOMBURG:  Sorry that I have to address also to you the

17    same questions or similar -- a similar question as I put to Defence

18    counsel.

19            Is it true that Mr. Zelenovic did not agree to plea guilty to the

20    indictment in its entirety?

21            MS. THIBORD:  If Your Honours -- if you'll allow, Ms. Brady will

22    answer this question.

23            MS. BRADY:  It may be easier if I answer that, Your Honours.

24            It is true that he did not agree to plead guilty to the entirety

25    of the indictment.  Having said that, some of the indictment referred to

Page 34

 1    crimes which he was not a participant in.  And in other cases, the

 2    Prosecution made a -- a judgement call on selecting those crimes that he

 3    was involved in which would best reflect the entirety, the totality of the

 4    offences that he committed.  And for some of those reasons, it may have

 5    been because the evidence was not sufficient or the Prosecution did not

 6    believe that the evidence would come up to proof and a variety of other

 7    reasons.  But at the end of the day, the Prosecution agreed with

 8    Mr. Zelenovic that these counts reflecting these crimes would be the best

 9    reflection of the totality of his criminal conduct.

10            JUDGE SCHOMBURG:  Agreed.  However, it reads in para 11 that "A

11    consideration of all available evidence was a basis for the streamlining

12    of the indictment."

13            Can I understand it in this way, that only those charges where the

14    accused voluntarily based confronted with available evidence accepted this

15    plea arrangement that he already had the advantage in the plea bargaining

16    stage?  That is, was more or less already part of a deal?  Because no

17    doubt, he's presumed innocent.  But was there any case at all where there

18    was no evidence available, however he pleaded guilty?

19            MS. BRADY:  Your Honour, I wasn't part of the discussions, but to

20    the best of my knowledge, I do not believe that that was the case.

21            JUDGE SCHOMBURG:  Thank you.

22            JUDGE LIU:  Well, I have a question to ask Ms. Brady concerning

23    with the paragraph 52 of the judgement of the Trial Chamber on this case.

24            As you know, the cooperation with the Prosecution is a condition

25    specifically laid down in the Rules for the plea agreement. I just want to

Page 35

 1    know what is your criteria to judge whether there's a substantive

 2    cooperation on the part of the Defence, whether the willingness or

 3    commitment expressed by the Defence is enough or you would like to see

 4    some, you know, let me say, the concrete results from this cooperation.

 5            MS. BRADY:  Your Honour, the Prosecution does take into account

 6    the use, the ultimate effect of the information, but this is by no means

 7    the only consideration which is given when the Prosecution makes its

 8    determination as to whether cooperation is, in its view, substantial.

 9            The Prosecution examines or looks at whether the information was

10    verifiable, whether it was novel, whether it was reliable, whether it was

11    credible, was it information simply gained through open sources, all of

12    these factors, and makes an evaluation based on that, and it includes, of

13    course, the use, the effect ultimately which is given, whether it was in

14    fact of assistance, but that is by no means the only criteria which guides

15    the Prosecution in its assessment.

16            The second point I'd make is this:  That there are two aspects to

17    an offender's cooperation for which he should receive credit, and that's

18    what the Trial Chamber did.  The first aspect is the -- what you could say

19    is the actual content of what is provided.  And on that limb, one

20    important aspect will be the use which is made of the information.  But

21    the second component - and this is where, in our submission, the appellant

22    got full credit - the second component is his willingness or his

23    earnestness.  This means that even if a accused because of his low

24    position or because he only knows a certain amount of -- of things, if

25    he -- if he gives the -- that information to the best of his ability,

Page 36

 1    candidly, openly, honestly, that is taken into account in the weight to be

 2    given to cooperation.

 3            And in our submission, the Trial Chamber in fact gave him a -- a

 4    heightened weight to that second factor and some weight to the first

 5    factor about the actual information that he provided, bearing in mind what

 6    the Prosecution had informed it about.

 7            Thank you.

 8            JUDGE LIU:  Thank you.

 9                          [Appeal Chamber confers]

10            JUDGE LIU:  Well, I see there's no questions from the Bench.

11            Now I would like to give the floor to Mr. Jovanovic for 15

12    minutes.

13            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

14                          Reply by Mr. Jovanovic:

15            MR. JOVANOVIC: [Interpretation] First I wish to respond to what my

16    learned friend said in the first part when she said that my client

17    participated in more than 30 rapes.  I don't see this as being established

18    in the plea agreement or the Trial Chamber's judgement.

19            My learned friend also stated that Dragan Zelenovic participated

20    in the rape of women and girls.  Later on, however, she mentioned only one

21    girl, one minor, and eight women.

22            As for Mr. Zelenovic's cooperation with the Office of the

23    Prosecutor, may we go into private session, please.

24            JUDGE LIU:  Yes, let's go to the private session.

25                          [Private session]

Page 37











11    Pages 37-38 redacted. Private session















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14   (redacted)

15                          [Open session]

16            THE REGISTRAR:  We are in open session, Your Honours.

17            JUDGE LIU:  Thank you.

18            You may proceed.

19            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

20            The Prosecution indicated that, as it did in its response, that

21    the Defence in fact wants the fact that the graver the crimes, the

22    better -- the higher the benefit of a guilty plea as a mitigating

23    circumstance, because the witnesses are not obliged to testify.

24            The Defence has repeated this several times, and it always

25    stressed that it never set aside the fact that the gravity of the crimes

Page 40

 1    must be reflected in the sentence.  It merely emphasised the peculiar

 2    character of the witness -- witnesses and victims in this crime.

 3            So regardless of whether a person is a victim of a graver or

 4    less-grave crime - and this Tribunal is always dealing with the gravest

 5    crimes - I'm not talking about the gravity of crime but the category of

 6    victims that find it really hard to be called time and time again to

 7    testify before such Tribunals.

 8            The Defence submitted an expert report to corroborate those

 9    claims.  We're now talking about a difficult category of victim.  We're

10    not talking about people who were beaten up or were victims of other war

11    crimes.  So this is the only sense in which the Defence wanted to bring

12    forward the fact that the category of these victims is what sets them

13    aside, not the gravity of the crime.  We never questioned the gravity of

14    the crime.

15            As regards the judgement of the State Court of Bosnia and

16    Herzegovina in the Radovan Stankovic case, the Defence has always been

17    stressing, including today at this hearing, that the Tribunal was not

18    bound to take into account any decisions of national courts, but the

19    Defence stressed that its emphasis -- that the reason why we brought

20    forward this judgement was because we were invited to do so by the Trial

21    Chamber.  Both parties were invited by the Trial Chamber to present their

22    positions on this, and we were acting in accordance with this request.

23            Secondly, let me just note that in deciding whether a judgement

24    that was imposed on a co-accused tried before the State Court of Bosnia

25    and Herzegovina, the fact that this is a court to which this Tribunal

Page 41

 1    refers its cases, in accordance with the Rule 11 bis, means that this

 2    Tribunal considers that court to be the kind of court that can be trusted.

 3    And in this light, the jurisprudence of that court should be taken into

 4    account in this specific case, the case of the Prosecutor against

 5    Dragan Zelenovic.

 6            Thank you.

 7            JUDGE LIU:  Thank you.

 8                          [Appeal Chamber confers]

 9            JUDGE LIU:  Judge Guney, please.

10   (redacted)

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13   (redacted)

14   (redacted)

15   (redacted)

16            JUDGE LIU:  Yes.  Shall we go to the private session, please.

17                          [Private session]

18   (redacted)

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Page 42











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Page 46

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 4   (redacted)

 5                          [Open session]

 6            THE REGISTRAR:  We are in open session, Your Honours.

 7            JUDGE SCHOMBURG:  Mr. Jovanovic, I only wish to put one question

 8    to you.  I take it that it's an agreed fact that the Stankovic judgement

 9    was available only on 17 April 2007; whereas, the judgement in this case,

10    the sentencing judgement, was rendered on 4 April 2007, and you

11    acknowledged that you would not have expected that the Trial Chamber would

12    have waited until the appeal judgement would be issued.  Thus, I can't see

13    in your submission directing us to any alleged error committed by the

14    Trial Chamber.

15            In the interest of justice, I may ask you:  Do you uphold with the

16    view to these facts and your own submission the second ground of appeal,

17    or would you be prepared in order to focus on the main issues of your

18    appeal to withdraw the second ground of appeal?

19            MR. JOVANOVIC: [Interpretation] Your Honours, as I indicated, the

20    Trial Chamber invited the parties to provide their comments on the

21    judgement of the State Court in the Radovan Stankovic case.  The same

22    position that was taken by the Defence in the appellate brief was that

23    this was relevant for the Trial Chamber, not only for the Appeals Chamber.

24    And we believe that the Defence -- that because the Trial Chamber had

25    invited the parties to do so, it should have taken into account the

Page 47

 1    findings in the first instance judgement in the Radovan Stankovic case.

 2    But we believed that the reason why the Trial Chamber did not do so at the

 3    time was because the first instance judgement in that case was not final

 4    at that time.

 5            Of course, the first instance judgement was even more favourable

 6    for the Defence in light of the sentence that was imposed by the State

 7    Court on Radovan Stankovic in determining the sentence for Mr. Zelenovic.

 8            The Defence believed that the first instance judgement -- that the

 9    Appeals Chamber, when it modified the sentence that was imposed by the

10    first instance court, in fact retained the same -- the same arguments and

11    that supports the argument proffered by the Defence that Mr. Zelenovic

12    received a much too severe sentence, if you look at the arguments and the

13    sentence that were imposed by the State Court of Bosnia and Herzegovina.

14            The Defence gives weight to this ground, but it did so only after

15    the Trial Chamber asked the parties to present their arguments on this

16    judgement.  But the main ground for appeal remains the benefit that

17    accrued to the victims because of his -- Mr. Zelenovic's guilty plea and

18    his cooperation with the Prosecution.

19            JUDGE SCHOMBURG:  This exactly was my question, that we, the

20    Appeals Chamber, can focus on the merits of this.  And, again, you have

21    not - correct me if I'm wrong - pointed to any error committed by the

22    Trial Chamber, because the judgement in the Stankovic case was not yet

23    available at that time.

24            Thank you.  So therefore it was my invitation whether it wouldn't

25    be in favour and in the interest of justice to withdraw the second ground

Page 48

 1    of appeal.  This was my question.

 2            JUDGE LIU:  Thank you, Judge Schomburg.

 3            Yes.  Yes, Judge Shahabuddeen, you have the floor, please.

 4            JUDGE SHAHABUDDEEN:  Mr. Jovanovic, this Appeals Chamber, as you

 5    well know, operates on the basis that it would try to determine, one,

 6    whether there are errors of fact in the Trial Chamber's decision and, two,

 7    whether there are errors of law.

 8            Now, we leave aside errors of fact.  I want to invite you to

 9    concentrate on errors of law.  Is there, in your mind, an error of law

10    which the Trial Chamber committed?  If so, what is that error?

11            MR. JOVANOVIC: [Interpretation] Your Honour, the Trial Chamber

12    weighed the mitigating circumstances, and in the view of the Defence,

13    there was an error of law committed because circumstances which should

14    have been considered to be mitigating circumstances were not given

15    sufficient weight.  The mitigating circumstances enumerated in the

16    appellant's brief should have been given greater weight.  The Defence has

17    described these mitigating circumstances.

18            The Trial Chamber did not reject them as mitigating circumstances,

19    but incorrectly assessed the weight of these circumstances.  In spite of

20    the fact that the Trial Chamber is not bound to attach weight to each and

21    every mitigating circumstance, in the view of the Defence, these

22    mitigating circumstances are of such important -- importance that they

23    should have been given due weight and taken into account in the course of

24    sentencing.

25            JUDGE SHAHABUDDEEN:  Thank you, Mr. Jovanovic.  That's very

Page 49

 1    helpful.

 2            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

 3            JUDGE LIU:  Thank you very much, Mr. Jovanovic.  You may sit down.

 4            Now by came to the last part of the proceeding; that is,

 5    Mr. Dragan Zelenovic, should he wish to address the Bench, he will have 15

 6    minutes to do so.

 7            Mr. Zelenovic, you have the floor.

 8                          [The appellant stands up]

 9            THE APPELLANT: [Interpretation] Yes, Your Honour.

10            By admitting my guilt, I must say I admitted it consciously and

11    without any pressure.  From the first day when I arrived in Sarajevo, I

12    knew I was on my way to The Hague.  I was told, "Plead not guilty and you

13    will be referred to Sarajevo and you will serve your sentence there, like

14    Radovan Stankovic."  I spoke to my lawyer and I said, "No, I want to

15    confess my guilt."  I am in a poor state of health, and I would have spent

16    a large part of my sentence in hospital.  And you can see how Stankovic

17    managed to escape in this way.  He got into a car and fled on his way to

18    hospital.

19            But I am the only one from Foca who confessed to his guilt, and I

20    believe, Your Honours, that my remorse for what I have done will help the

21    victims to recover and it will reduce their suffering.  I also hoped that

22    my cooperation with this Tribunal would assist the Tribunal in its work

23    and lead to -- or rather, contribute to reconciliation in Bosnia.

24            That's all I have to say.  Thank you very much, Your Honours.

25            JUDGE LIU:  Thank you, Mr. Zelenovic.

Page 50

 1            Well, I believe that this is all for this morning's proceedings.

 2    And the Bench will withdraw for the deliberation of this case.

 3            The judgement will be delivered in due time upon further

 4    announcement by the Appeals Chamber.  The Bench would like to thank both

 5    parties for their presentation this morning, and our thanks also go to the

 6    interpreters, court reporters, and all those working to make these

 7    proceedings possible.

 8            The hearing is adjourned.

 9                          --- Whereupon the Appeals Hearing adjourned

10                          at 11.43 a.m.