"Sentencing Judgement"

31 July 2001
Trial Chamber III (Judges Robinson [Presiding], May and Fassi Fihri)

Procedural Background

• The accused Stevan Todorovic was initially charged in a joint indictment with five other co-accused for crimes alleged to have been committed in the municipality of Bosanski Samac in Bosnia and Herzegovina between April 1992 and December 1993. In his capacity as Chief of Police in Bosanski Samac, Stevan Todorovic was charged with ten counts of crimes against humanity, including persecution, deportation, murder and inhumane acts, nine counts of grave breaches of the Geneva Conventions, and eight counts of violations of the laws or customs of war.

• On 30 September 1998, the accused made his initial appearance at which he pleaded not guilty to all the charges.

• On 29 November 2000, a joint Motion was filed notifying the Trial Chamber of an agreement between the accused and the Prosecution according to which Stevan Todorovic would plead guilty to Count 1 of the Second Amended Indictment, and the Prosecution would withdraw all other counts against him. The Prosecution and Defence agreed that the Prosecution would recommend to the Trial Chamber a sentence of no less than five years' and no more than twelve years' imprisonment and that neither party would appeal any sentence imposed by the Trial Chamber falling within that range.

• On 13 December 2000, before Judge Robinson, Stevan Todorovic entered a guilty plea on Count 1 of the Indictment. On 24 January 2001, the accused confirmed his guilty plea before the full Trial Chamber which was satisfied that the requirements set forth in Rule 62 bis of the Rules of Procedure and Evidence1 in relation to guilty pleas had been met and thus entered a finding of guilt against the accused. On the same day, the Trial Chamber issued an Order in which it formally separated the proceedings against Stevan Todorovic from those against the other co-accused.

• At the sentencing hearing held on 4 May 2001 the Trial Chamber admitted certain witness statements submitted by the Defence and two expert reports on the medical and psychological condition of Stevan Todorovic. The Defence was given leave to call two witnesses as well as a medical expert, Dr. Lecic-Tosevski. Before the Defence presented its closing arguments, the accused himself made a statement to the Trial Chamber.
  

The Reasoning

Sentencing Factors

The Trial Chamber first observed that while the Appeals Chamber held in its Judgements rendered on 24 March 2000 and 20 February 2001 in the cases The Prosecutor v. Zlatko Aleksovski3 and Zejnil Delalic et al.4 "that retribution and deterrence are the main principles in sentencing for international crimes […], these purposive considerations merely form the backdrop against which an individual accused's sentence must be determined." The Trial Chamber added that the principle of retribution "must be understood as reflecting a fair and balanced approach to the exaction of punishment for wrongdoing." It explained that "[t]his means that the penalty imposed must be proportionate to the wrongdoing; in other words, that the punishment be made to fit the crime." The Trial Chamber expressed the view that this principle was reflected in the account which it was obliged to take of the gravity of the crime. It reiterated that the Appeals Chamber held that deterrence "is a consideration that may legitimately be considered in sentencing"5 and further recognised the "general importance of deterrence as a consideration in sentencing for international crimes"6. The Trial Chamber interpreted "this to mean that deterrence is one of the principles underlying the determination of sentences, in that the penalties imposed by the Tribunal must, in general, have sufficient deterrent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so." Accordingly, while the Trial Chamber recognised "the importance of deterrence as a general consideration in sentencing", it did "not treat deterrence as a distinct factor in determining sentence in this case."

Gravity of the crime

The Trial Chamber then addressed the gravity of the crime of which Stevan Todorovic stood convicted. It referred to the Celebici Appeals Chamber Judgement in which the Appeals Chamber stated that "the gravity of the offence is the primary consideration in imposing sentence." (Para. 731) The Trial Chamber considered that this involved "an assessment of both the criminal conduct forming the basis for the conviction and any aggravating circumstances." The Trial Chamber set forth details of the criminal conduct underlying Stevan Todorovic's conviction for the crime of persecutions, including his participation in the beating and murder of Anto Brandic, the beatings of several other individuals, among them Father Jozo Puskaric, Silverstar Antunovic, Hasan Bicic, Kemal Bobic, Hasan Ceribasic, Abdulah Drljacic, Zlatko Dubric, Roko Jelavic and Hasan Subasic, and the sexual assault of six men at the police station in Bosanski Samac. Stevan Todorovic also admitted to having participated in the unlawful detention, the cruel and inhumane treatment, and the deportation and forcible transfer of Bosnian Muslims, Bosnian Croats and other non-Serb civilians in the municipality of Bosanski Samac.

Aggravating circumstances

As a component of the overall gravity of the offence, the Trial Chamber took into account as aggravating circumstances the accused's position of superior authority as Chief of Police in Bosanski Samac, and the cruel manner in which he perpetrated several of the criminal acts underlying his conviction. In light of the above, the Trial Chamber concluded that Stevan Todorovic's crime was particularly serious.

Mitigating circumstances

The Trial Chamber then reviewed the mitigating circumstances and found that four factors in this case could be considered in mitigation of sentence, i.e. the accused's guilty plea, his substantial co-operation with the Prosecution, his expressed remorse for his crimes and the question of his allegedly diminished mental capacity.

The Trial Chamber observed that Stevan Todorovic is only the third accused before the Tribunal to have been convicted on the basis of a guilty plea7. It recognised the benefits to the Tribunal in terms of time and resources when an accused entered a guilty plea, and in particular when such a plea is entered early on in the proceedings or, in any event, before the trial itself began. The Trial Chamber considered that a guilty plea should, in principle, give rise to a reduction in the sentence which the accused would otherwise have received. The Trial Chamber observed that Stevan Todorovic's trial had not yet commenced when he decided to plead guilty. It recognised the considerable contribution of the accused's guilty plea to the efficiency of the work of the Tribunal and to its search for the truth, and took this into account in mitigation of sentence.

The Trial Chamber further noted the Plea Agreement, according to which Stevan Todorovic agreed to co-operate with the Prosecution by providing "truthful and complete information" and testifying in the case against his former co-accused, and, as requested by the Prosecution, in any other proceedings. The Trial Chamber had regard to the Prosecution's submissions as to the quantity and quality of the information provided by Stevan Todorovic thus far. It concluded that the accused's co-operation with the Prosecution to date had been substantial and that such co-operation ought to be considered as a mitigating circumstance in this case.

It found that, in order to accept remorse as a mitigating circumstance in sentencing, the Trial Chamber must be satisfied as to the sincerity of the expressed remorse. In this regard, the Trial Chamber recalled the statement made by Stevan Todorovic during the Sentencing Hearing, at which he had expressed repentance and remorse for his crimes and a willingness and desire to contribute to the process of reconciliation in Bosnia and Herzegovina. The Trial Chamber treated his remorse as a mitigating circumstance in determining sentence.

In relation to the issue of whether the accused's alleged diminished responsibility could act in mitigation of sentence, the Trial Chamber found that neither of the two expert reports filed on Stevan Todorovic's medical and psychological status suggested that his condition at the time the crimes were committed would give rise to mitigation of sentence.

General practice regarding prison sentences in the courts of the former Yugoslavia

The Trial Chamber found that the punishment prescribed under the Criminal Code of the Socialist Republic of Yugoslavia for the crime of which Stevan Todorovic stood convicted ranges from 5 to 20 years' imprisonment. The Trial Chamber held that while it must consider the practice of the courts in the former Yugoslavia in imposing sentence it is not bound by such practice.

Determination of sentence

The Trial Chamber considered the relative weight to be accorded to each of the above-mentioned factors in determining sentence. It noted that the Defence had urged a comparison between this case and that of Drazen Erdemovic, in which the accused was sentenced to five years' imprisonment for his conviction on a count of murder as a violation of the laws or customs of war. However, the Trial Chamber found that case readily distinguishable in that Trial Chamber I in The Prosecutor v. Drazen Erdemovic had considered duress as a mitigating circumstance, an element absent in this case. For this reason the Trial Chamber considered that the Erdemovic case was not helpful in providing a benchmark for Stevan Todorovic's sentence. The Trial Chamber reiterated the very serious nature of the accused's crime. In particular, it recalled that the crime of persecution was the only crime against humanity which required that the perpetrator act with discriminatory intent8. It found that the gravity of Stevan Todorovic's criminal conduct was aggravated by his superior position and by the manner in which the crimes were committed. The Trial Chamber held that while mitigating circumstances had been given considerable weight in the determination of the sentence in this case, this in no way detracted from the seriousness of Stevan Todorovic's crime. It found that Stevan Todorovic's plea of guilt and his substantial co-operation with the Prosecution were of primary importance as mitigating circumstances in the case. The Trial Chamber stated that had it not been for these factors he would have received a much longer sentence.

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1. "If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty and the Trial Chamber is satisfied that:

(i) the guilty plea has been made voluntarily;
(ii) the guilty plea is informed;
(iii) the guilty plea is not equivocal; and
(iv) there is a sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case,

the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing."
2. "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."

3. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (hereinafter the "Aleksovski Appeals Chamber Judgement", summarised in Judicial Supplement No. 13), para. 185.
4. The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (hereinafter the "Celebici Appeals Chamber Judgement", summarised in Judicial Supplement No. 23), para. 806.
5. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A and IT-94-1-Abis, Appeals Chamber, Judgement in Sentencing Appeals, 26 January 2000 (summarised in Judicial Supplement No. 11), para. 48.
6. Aleksovski Appeals Chamber Judgement, para. 185; see also Celebici Appeals Chamber Judgement, para. 803.
7. See The Prosecutor v. Drazen Erdemovic ("Pilica Farm"), Case No. IT-96-22-T, Trial Chamber I, Judgement, 5 March 1998; The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 14 December 1999 (summarised in Judicial Supplement No. 10).
8. See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), paras. 283 to 285; see also The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11), paras. 621 to 636.