Tribunal Criminal Tribunal for the Former Yugoslavia

Page 564

1 Wednesday, 4 April 2007

2 [Sentencing Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 1.46 p.m.

6 JUDGE ORIE: Good afternoon, Mr. Registrar. Would you please call

7 the case.

8 [French on English channel]

9 THE REGISTRAR: Good morning, Mr. President, Your Honours. This

10 is case number IT-96-23/2-S, The Prosecutor versus Dragan Zelenovic.

11 JUDGE ORIE: Thank you. Mr. Registrar. Yes, I received French on

12 channel 4. I now receive either live or English on channel 3. I now

13 receive again English on channel 4.

14 JUDGE MOLOTO: I have nothing.

15 JUDGE ORIE: You cannot hear anything?

16 JUDGE MOLOTO: No, nothing.

17 [Trial Chamber and registrar confer]

18 [Trial Chamber confers]

19 JUDGE ORIE: This Trial Chamber is sitting today to deliver its

20 sentencing judgement in the case of The Prosecutor versus Dragan

21 Zelenovic. For the purposes of this hearing, the Trial Chamber will

22 summarise briefly its findings, and we emphasise that this is a summary

23 only and that the authoritative account of the Trial Chamber's finding is

24 to be found in a written sentencing judgement, which will be made

25 available at the end of this session.

Page 565

1 Mr. Zelenovic was charged with seven counts of torture and rape as

2 crimes against humanity, and seven counts of torture and rape as a violations

3 of the laws or customs of war. He is charged as individually responsible,

4 pursuant to Article 7(1) of the Statute. The crimes charged took place in

5 there Foca municipality in Bosnia and Herzegovina from July to October,

6 1992.

7 Some years after an indictment against Mr. Zelenovic had been

8 issued by this Tribunal, Mr. Zelenovic left his home and travelled to

9 Russia under a false name in order to avoid detection and arrest. He was

10 arrested by Russian authorities on the 22nd of August, 2005; and on

11 the 8th of June, 2006, he was transferred to Bosnia and Herzegovina. From

12 there, he was transferred to the Tribunal and detained at the United

13 Nations Detention Unit.

14 The Referral Bench was at this time already seized of a

15 Prosecution motion pursuant to Rule 11 bis to transfer the case of

16 Mr. Zelenovic to Bosnia and Herzegovina for trial there. However, on 14th

17 of December, 2006, the Prosecution and Defence in this case filed a joint

18 motion for consideration of a Plea Agreement between Mr. Zelenovic and the

19 Office of the Prosecutor, according to which Mr. Zelenovic agreed to plead

20 guilt to three counts of torture and four counts of rape as crimes against

21 humanity.

22 During a hearing before this Trial Chamber on the 17th of January

23 2007, Mr. Zelenovic pleaded guilty to the mentioned seven counts of crimes

24 against humanity. At that same hearing, the Trial Chamber accepted the

25 guilty pleas and found Mr. Zelenovic guilty accordingly. The facts

Page 566

1 underlying the guilty plea are set out in a factual statement attached to

2 the plea agreement. The Trial Chamber will now summarise these facts.

3 Dragan Zelenovic was born on 12 February 1961 in Foca, eastern

4 Bosnia-Herzegovina. During the indictment period, Mr. Zelenovic was a

5 soldier and, de facto, a military policeman in the Bosnian Serb

6 Territorial Defence, and from the summer 1992 onwards in the Bosnian Serb

7 army.

8 The political and military take-over of Foca municipality started

9 with the Serb forces shelling the town of Foca with heavy artillery in the

10 beginning of April 1992. This attack was part of an armed conflict in

11 Bosnia-Herzegovina between forces of the government of Bosnia-Herzegovina

12 and Serb forces. The attacks on Foca and the surrounding villages, most

13 of which were under defended and had no military targets, lasted until

14 mid-July 1992.

15 During and after the take-over of Foca town and its surrounding

16 villages and municipalities, Muslim and other non-Serb inhabitants were

17 subjected to widespread and systematic pattern of abuses designed to

18 remove the majority of them from the municipality. Muslim and other

19 non-Serb inhabitants were methodically rounded up, beaten, and sometimes

20 killed. Men and women were separated and transported to various detention

21 facilities where they are subjected to humiliating and degrading

22 treatment.

23 After extended periods of detention, the detainees were deported

24 or forcibly transferred to Montenegro or locations controlled by the

25 government of Bosnia-Herzegovina. As a consequence of the attack on the

Page 567

1 civilian population of Foca and its surrounding municipalities, Muslim

2 civilians were, to a very large extent, expelled from the region.

3 Mr. Zelenovic was involved in the attack on Foca town and its

4 surrounding villages and the subsequent arrest of civilians between

5 mid-April and mid-July 1992. The parties agree that an armed conflict

6 existed in Bosnia and Herzegovina at all times relevant to the indictment.

7 Further more, the parties agree that Mr. Zelenovic's criminal acts

8 and omissions were part of a widespread or systematic attack against the

9 civilian population, especially the Muslim population of Foca

10 municipality.

11 Finally, the parties agree that Mr. Zelenovic was aware of the

12 existence of the armed conflict and of the widespread and systematic

13 attack on the non-Serb, primarily Muslim, civilian population and of the

14 fact that his conduct occurred within and contributed to that attack.

15 The crimes to which Mr. Zelenovic has pleaded guilty took place in

16 several different detention centres in Foca municipality where Muslim

17 women and girls were held.

18 On the 3rd of July, 1992, Mr. Zelenovic, along with other men,

19 arrested a group of about 60 Muslim women, children, and elderly men from

20 a village in Foca municipality and took them to a temporary detention

21 facility called Buk Bijela. At the detention centre, Mr. Zelenovic and

22 other men separated the women from the children. They started to

23 interrogate the women, and in the course of these interrogations the women

24 were threatened with sexual assault and murder.

25 During one of the first days of detention, Mr. Zelenovic and

Page 568

1 another man interrogated Witness 75 about her village and whether the

2 villagers had weapons. Witness 75 was warned by the other men that she

3 would be raped by soldiers and killed afterwards, if she did not answer

4 truthfully. When Mr. Zelenovic and the other interrogator found that the

5 victim did not answer their questions adequately, she was taken by a

6 soldier to another room where ten soldiers raped her in turn.

7 Mr. Zelenovic knew that his action in respect of the interrogation

8 and his failure to act with regard to the threats of rape and death

9 against Witness 75 substantially assisted in the commission of this crime

10 against her.

11 Around the same time in July 1992, Mr. Zelenovic and three

12 unidentified soldiers interrogated Witness 87, a 15-year-old Muslim girl,

13 in a room at Buk Bijela. During the interrogation, Mr. Zelenovic and the

14 three soldiers accused the girl of not telling the truth and raped her.

15 During the rape, one of the soldiers threatened the victim by putting a

16 gun to her head.

17 Within ten days of being detained at Buk Bijela, the group of

18 women, children, and elderly were transferred and detained together with

19 other persons in two classrooms at Foca High School. On one occasion,

20 Mr. Zelenovic, together with other men, selected four women and girls from

21 the classrooms, among them Witness 75 and Witness 87. Mr. Zelenovic led

22 them to another classroom where soldiers were waiting. He then decided

23 which woman should go with which soldier. Mr. Zelenovic raped Witness 75,

24 while the other soldiers raped the other women and girls.

25 Between 8 and 13 July 1992, Witness 75 and Witness 87 were taken

Page 569

1 from Foca High School to various locations on three separate occasions.

2 On the first, the women were taken to an apartment owned by Mr. Zelenovic.

3 There, he and three other men raped Witness 75. Mr. Zelenovic also raped

4 Witness 87 on that occasion. On the second occasion, the women were taken

5 to another apartment, where Mr. Zelenovic again raped them. On the third

6 occasion, Mr. Zelenovic took the women to an abandoned house in Gornji

7 Polje where he raped Witness 87.

8 On 13 July 1992, the detainees at Foca High School were

9 transferred to Partizan Sports Hall where they were detained for one

10 month, after which most detainees were deported to Montenegro. The

11 detainees were all Muslim civilians from villages in Foca municipality.

12 Living conditions at Partizan Sports Hall were brutal, and the detention

13 was characterised by inhumane treatment, starvation, and physical and

14 psychological torture, including sexual assaults.

15 On one occasion in July 1992, Mr. Zelenovic and other men took

16 Witness 87 away from Partizan Sports Hall and raped her. On another

17 occasion, in August, Witness 87 and Witness 75 were taken from Partizan

18 Sports Hall and detained in a house known as Karaman's House. From there,

19 at the end of October the same year, Mr. Zelenovic and two co-perpetrators

20 took Witness 87, Witness 75, and two other women to an apartment in Foca.

21 There, Mr. Zelenovic raped Witness 87, while the co-perpetrators raped the

22 other women.

23 Mr. Zelenovic pleaded guilty to all the incidents of torture and

24 rape mentioned.

25 We now come to sentencing considerations.

Page 570

1 The Prosecution has recommended that Mr. Zelenovic be sentenced to

2 imprisonment within the range of ten to 15 years, while the Defence has

3 recommended a term within the range of seven to ten years.

4 In determining the appropriate sentence, the Chamber has accessed

5 the gravity of Mr. Zelenovic's crimes, including the nature of the crimes

6 of torture and rape as crimes against humanity, the particular

7 circumstances of the case, and from the form and degree of participation

8 of Mr. Zelenovic. The crimes to which Mr. Zelenovic has pleaded guilty

9 were part of a pattern of sexual assaults that took place over a period of

10 several months and in many different locations and involved multiple

11 victims. Mr. Zelenovic took direct part in the sexual abuse of victims in

12 a number of detention facilities, including multiple rapes of Witness 75

13 and Witness 87.

14 Mr. Zelenovic has been found guilty of personally committing nine

15 rapes, eight of which were qualified as both torture and rape. He has

16 also been found guilty of two instances of rape through

17 co-perpetratorship, one of which was qualified as both torture and rape,

18 and one incident of torture and rape through aiding and abetting. Four of

19 the rapes he took part in were gang-rapes, together with three or more

20 other perpetrators.

21 In one of those instances, he participated as aider and abettor in

22 the gang-rape of Witness 75 by at least ten soldiers, which was so violent

23 that the victim lost consciousness. He participated as co-perpetrator in

24 an incident during which the victim was threatened with a gun to her head

25 while being sexually abused. The Trial Chamber finds that the scale of

Page 571

1 the crimes committed was large and that Mr. Zelenovic's participation in

2 the crimes was substantial.

3 The victims in this case were a particularly vulnerable -- in a

4 particularly vulnerable situation at the time of the commission of the

5 crime. They were unarmed and defenceless and detained under brutal

6 conditions for long periods of time. In addition, Witness 87, who was

7 raped by Mr. Zelenovic on numerous occasions, was about 15 years old at

8 the time of the commission of the crimes.

9 The women and girls in the detention centres lived in constant

10 fear of repeated rapes and sexual assaults. Some became suicidal and

11 others became indifferent to what happened to them. The victims at the

12 detention centres in Foca suffered the unspeakable pain, indignity, and

13 humiliation of being repeatedly violated without knowing whether they

14 would survive the ordeal. The scars left by the sexual assaults were deep

15 and might never heal. This, perhaps, more than anything, speaks about the

16 gravity of the crimes in this case.

17 There are a number of individual circumstances of Mr. Zelenovic

18 that have been accorded weight in mitigation. The Trial Chamber

19 emphasises, however, that such circumstances do not in any way diminish

20 the gravity of the crime.

21 Mr. Zelenovic decided to admit his guilt and plead guilty. There

22 are a number of reasons, applicable in the present case, why a guilty plea

23 should be attached weight in mitigation. The Trial Chamber has considered

24 Mr. Zelenovic's admission of guilt and the decision to face the

25 consequences of his previous acts. The Trial Chamber has also considered

Page 572

1 the effect a guilty plea could have on establishing the truth and

2 contributing to reconciliation in the region and the fact that a guilty

3 plea relieves the victims of horrible crimes from reliving their trauma by

4 being forced to give evidence in court. Finally, the Trial Chamber has

5 considered the time an effort saved by the Tribunal through avoidance of a

6 lengthy trial, although it has given this aspect limited weight.

7 The Trial Chamber has also given weight to Mr. Zelenovic's

8 commitment to cooperate with the Office of the Prosecutor, including

9 giving evidence in court, and the cooperation he has given so far. The

10 Trial Chamber has also considered the remorse expressed by Mr. Zelenovic

11 for the crimes he has committed as a mitigating factor. Finally, the

12 Trial Chamber has given limited weight to the following individual

13 circumstances of Mr. Zelenovic: His family and health situation, his lack

14 of prior convictions, and his good conduct during detention.

15 The Trial Chamber has, in determining the sentence, also

16 considered the general practice regarding prison sentences in the Courts

17 of the former Yugoslavia as well as the case-law of this Tribunal.

18 Mr. Zelenovic, would you please stand.

19 For the reasons summarized above, this Trial Chamber, having

20 considered the facts of the case and the arguments of the parties, the

21 statute and the rules, and based upon the factual and legal findings as

22 determined in the sentencing judgement, hereby sentences you,

23 Mr. Zelenovic, to a single sentence of 15 years of imprisonment. You are

24 entitled to the credit for the period of time you have in custody for the

25 purpose of this case. You were arrested by the Russian authorities on the

Page 573

1 22nd of August, 2005, and are therefore entitled to credit of 591 days.

2 In accordance with Rule 103(C) of the Rules of Procedure and

3 Evidence, you will remain in the custody of the Tribunal pending

4 finalisation of arrangements for your transfer to the state where your

5 sentence will be served.

6 The Trial Chamber stands adjourned.

7 --- Whereupon the hearing adjourned at 2.09 p.m.