Trial Chambers

The Prosecutor v. Dusko Sikirica, Damir Dosen and Dragan Kolundzija - Case No. IT-95-8-T

"Sentencing Judgement"

13 November 2001
Trial Chamber III (Judges Patrick Robinson [Presiding], Richard May and Mohamed El Habib Fassi Fihri)

Rule 101 of the Rules of Procedure and Evidence - Sentencing factors - Mitigating circumstances - Guilty plea.

An accused who enters a guilty plea any time after the commencement of the trial still stands to receive some credit, even though he would have received more, had the plea been made prior to the commencement of the trial.

Procedural Background

The Reasoning

Dusko Sikirica admitted to killing one of the detainees in the camp by shooting him in the head. Moreover, the accused admitted that there was considerable evidence concerning the murder of other individuals at the Keraterm camp during the period of his duties. It was agreed however that there was no evidence of his presence during the massacre of over one hundred people in Room 3 or that he participated in any way in that massacre. In addition to the killings, Dusko Sikirica admitted that there was evidence that beatings, rape and sexual assault, harassment, humiliation and psychological abuse of the detainees occurred in the camp. The accused further admitted that there was ample evidence that the detainees were subjected to inhumane conditions during their confinement there.

Aggravating circumstances: the Trial Chamber regarded as aggravating factors (1) "Dusko Sikirica's failure in his duty to prevent outsiders from coming into the camp to mistreat the detainees"6 and (2) his "position of authority within the camp […] in respect of the murder of one of the detainees in the camp". It underscored that "this act must have left the impression that this conduct was encouraged (or at least not subject to sanction) and contributed to the overall atmosphere of terror that existed in the camp over the relevant period."7

Mitigating circumstances: although the Trial Chamber took into account his expression of remorse, it found that the primary factor to be considered in mitigation of Dusko Sikirica's sentence was his decision to enter a guilty plea8.

It emphasised that "[a] guilty plea facilitates the work of the Tribunal in two ways." First, by entering a plea of guilt before the commencement of his trial, an accused saves the Tribunal "the time and effort of a lengthy investigation and trial." Second, "notwithstanding the timing of the guilty plea, a benefit accrues to the Trial Chamber because a guilty plea contributes directly to one of the fundamental objectives of the Tribunal", i.e. "its truth-finding function."9

Accordingly, the Trial Chamber found that "while an accused who pleads guilty to the charges against him prior to the commencement of his trial will usually receive full credit for the plea, one who enters a plea of guilt any time thereafter will still stand to receive some credit", even though he would have received more, "had the plea been made prior to the commencement of the trial."10

Therefore, it held that "despite the lateness of his guilty plea, Dusko Sikirica should receive some credit for the plea."11

In order to accept the expressed remorse as a factor in mitigation, the Trial Chamber must be satisfied that it is sincere. In this regard, it recalled the statement of Dusko Sikirica during the sentencing hearing in which he expressed remorse for his crimes. It held the opinion that "his expression of remorse was sincere" and took it "into account in mitigation of sentence."12

The accused admitted that there was evidence that beatings occurred during his shift and that he was aware of them. However, there was also evidence that on several occasions Damir Dosen attempted to prevent mistreatment of the detainees. The accused also admitted that beatings caused both serious physical and mental harm to the victims and mental harm to those who witnessed them. Damir Dosen also accepted that there was ample evidence to show that the detainees were subjected to inhumane conditions during their confinement at the Keraterm camp.

Aggravating circumstances: the Trial Chamber expressed the view that Damir Dosen's position as shift leader was "an aggravating factor in relation to this crime." It specified that "[h]e was in a position of trust which he abused: he permitted the persecution of, and condoned violence towards, the very people he should have been protecting." However, the Trial Chamber pointed out that "the amount of aggravation must be limited in light of the limited nature of his authority."13

Mitigating circumstances: the Trial Chamber took into account three elements in mitigation of the accused's sentence, i.e. (1) his guilty plea, (2) his remorse and (3) the assistance he provided to some of the detainees at the Keraterm camp. First, it considered that "despite the lateness of his guilty plea, Damir Dosen should receive some credit."14 Second, the Trial Chamber recalled the statement of the accused during the sentencing hearing in which he expressed remorse for his crimes. It regarded his expression of remorse as sincere and treated it "as a mitigating factor, albeit of limited effect, in the determination of his sentence."15 Third, the Trial Chamber also took into account the evidence that, as shift leader, Damir Dosen often acted to ameliorate the terrible conditions which prevailed in the Keraterm camp in relation to particular detainees. It considered that the accused's acts in this regard constituted "a mitigating factor for purposes of sentencing."16 By contrast, the Trial Chamber did not consider Damir Dosen's alleged diminished mental capacity at the time his crimes were committed as a mitigating factor in the circumstances of this case17.

There was no evidence that the accused personally mistreated or condoned the mistreatment of detainees by others. Dragan Kolundzija accepted that there was evidence that mistreatment occurred regularly at the Keraterm camp during the period when he was a shift leader and he also accepted responsibility for continuing as a shift leader despite being aware of the inhumane camp conditions. The accused admitted, in particular, that there was ample evidence that the detainees were subjected to inhumane conditions during their confinement at the Keraterm camp.

Aggravating circumstances: the Trial Chamber found that Dragan Kolundzija was in a similar position in the camp to that of Damir Dosen, i.e. "a shift leader with limited authority." It stressed that "[b]y continuing as a shift leader, although aware of the conditions, he was abusing his position of trust" which amounted "to an aggravating factor in his case, albeit limited in line with his authority."18

Mitigating circumstances: the Trial Chamber considered two elements in mitigation of sentence, i.e. (1) Dragan Kolundzija's guilty plea and (2) his favourable treatment of the detainees19.

First, it observed that, unlike his two co-accused, Dragan Kolundzija pleaded guilty before the presentation of evidence in the Defence case although after the close of the Prosecution's. The Trial Chamber considered the additional savings to the Tribunal as a result of the accused's more timely guilty plea and that "although not made at the commencement of the proceedings, Dragan Kolundzija should receive close to full credit for his guilty plea."20

Second, on the basis of the ample evidence of Dragan Kolundzija's efforts to ease the harsh conditions in the Keraterm camp for many of the detainees, the Trial Chamber considered that the accused "should receive a significant reduction in his sentence."21

It also recalled that Dragan Kolundzija made a statement during the sentencing hearing in which he expressed remorse for his crimes. The Trial Chamber found it sincere and took it "into account in mitigation of sentence."22

The Sentencing Judgement

The Trial Chamber imposed on Dusko Sikirica, Damir Dosen and Dragan Kolundzija sentences of 15, 5 and 3 years' imprisonment respectively.

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1. The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III, Judgement on Defence Motions to Acquit, 3 September 2001 (summarised in Judicial Supplement No. 27).
2. Paras. 25, 31 and 37.
3. Rule 84 bis (A) of the Rules provides that "[a]fter the opening statements of the parties or, if the defence elects to defer its opening statement pursuant to Rule 84, after the opening statement of the Prosecutor, if any, the accused may, if he or she so wishes, and the Trial Chamber so decides, make a statement under the control of the Trial Chamber. The accused shall not be compelled to make a solemn declaration and shall not be examined about the content of the statement."
4. Para. 116.
5. Para. 111.
6. Para. 139.
7. Para. 140.
8. Para. 148.
9. Para. 149. See The Prosecutor v. Stevan Todorovic ("Bosanski Samac"), Case No. IT-95-9/1-S, Trial Chamber III, Sentencing Judgement, 31 July 2001 (summarised in Judicial Supplement No. 26), para. 81.
10. Para. 150.
11. Para. 151.
12. Para. 152.
13. Para. 172.
14. Para. 193.
15. Para. 195.
16. Para. 195.
17. Paras. 196 and 199.
18. Para. 210.
19. Para. 227.
20. Para. 228.
21. Para. 229.
22. Para. 230.