Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 7 February 2012

 2                           [Sentencing Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.15 p.m.

 6             JUDGE MORRISON:  Thank you.  Can I have appearances, please.

 7             MR. ROGERS:  Good afternoon, Your Honour.  Paul Rogers on behalf

 8     of the Prosecution together with Mr. Kyle Wood and our Case Manager today

 9     Ms. Carmela Javier.

10             JUDGE MORRISON:  Thank you.

11             MS. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honours.

12     For Jelena Rasic's Defence, Mira Tapuskovic and our legal assistant,

13     Liane Aronchick.

14             JUDGE MORRISON:  At a hearing on Tuesday, the 31st of 2012, this

15     Trial Chamber accepted the plea agreement concluded between the

16     Prosecution and Jelena Rasic in respect of five counts of contempt of the

17     Tribunal set out in an Amended Indictment filed jointly by the parties on

18     the 24th of January, 2012.

19             The Trial Chamber found that Jelena Rasic's guilty plea was

20     voluntary, informed, and unequivocal and held that there was a sufficient

21     factual basis for the crimes for which she pleaded guilty.  The

22     Trial Chamber then convicted Jelena Rasic for contempt of the Tribunal

23     and heard oral submissions by the parties regarding sentencing.

24             Today, the Trial Chamber sits to sentence Jelena Rasic.  It has

25     considered the parties' oral sentencing submissions as well as the

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 1     written submission filed by the Defence on the 27th of January, 2012, and

 2     corrected on the 30th of January, 2012.  It has also considered two

 3     medical reports by Dr. Vera Petrovic, dated the 26th of January and the

 4     1st of February 2012, filed ex parte confidentially on the

 5     6th of February, 2012.  The Chamber issues the following oral judgement

 6     with written reasons to follow.

 7             Rule 77(G) of the Rules of Procedure and Evidence stipulates that

 8     the maximum penalty that may be imposed upon a person found to be in

 9     contempt of the Tribunal shall be a term of imprisonment not exceeding

10     seven years or a fine not exceeding 100.000 euro or both.

11             The Prosecution has made submission in respect of sentencing and

12     has addressed the arguments of the Defence in this respect.  The Defence

13     submits that Jelena Rasic's sentence should be three months' imprisonment

14     or should the Chamber determine a higher sentence that it be suspended.

15             The crimes which Jelena Rasic has admitted to having committed

16     are grave.  Procurement of false evidence in any situation amounts to a

17     direct interference with the administration of justice.  When perpetrated

18     before an international criminal jurisdiction, such as the Tribunal, such

19     interference has far-reaching consequences.  This crime would therefore

20     ordinarily result in a considerable term of imprisonment.

21             With respect to aggravating circumstances, the Chamber notes the

22     position of trust in which Jelena Rasic found herself at the time of her

23     crimes.  Members of the Defence teams are obligated to act

24     conscientiously with full respect of the law and applicable rules,

25     something which certainly also holds true for any professional involved

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 1     in the proceedings before the Tribunal.  As officers of justice, they

 2     must at all times be aware of their duties and must never allow

 3     themselves to affect others, such as prospective witnesses, in a criminal

 4     manner.  However, Jelena Rasic did just that.

 5             The Chamber also notes her persistent and repetitive criminal

 6     conduct.  This is evidenced by her bringing the statements to

 7     Mr. Tabakovic, Mr. X and Mr. Y for correction at a point when she knew

 8     that the statements were false.

 9             With respect to mitigating circumstances, it is plain to us, and

10     also a matter alluded to and accepted by the Prosecution, that

11     Jelena Rasic was not, and could not have been the original instigator of

12     the broader criminal conduct of procuring false evidence.  It is obvious

13     that another or others connected to the Lukic case in some way were

14     responsible for recruiting her as a relatively young and inexperienced

15     person to commit these offences.  In this respect, the Chamber has also

16     considered the personal circumstances of the accused, including that she

17     was relatively young at the time of the crimes and that she was

18     inexperienced in the role of investigator to which she was put by the

19     Milan Lukic Defence.

20             The Chamber notes that it has not been argued that Jelena Rasic

21     received any personal benefit from the crimes.  It has considered the

22     extensive and unambiguous expression of remorse of Jelena Rasic as set

23     out in the Defence written submission and her good character and lack of

24     prior conviction.

25             The guilty plea also weighs in as mitigation.  The fact that

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 1     Jelena Rasic decided to plead guilty at what amounts to the last moment

 2     before trial was to commence does not change the Chamber's opinion on

 3     this point.  However, the Chamber's of the view that it is not possible

 4     to consider in mitigation the fact that Jelena Rasic agreed to be

 5     interviewed by the Prosecution given that she did not participate

 6     truthfully.  That said, the fact that she did not tell the truth on

 7     several points material to the Prosecution's investigation, thereby

 8     refraining from co-operation with the Prosecution, is not an aggravating

 9     factor and has not been so considered by the Chamber.

10             Jelena Rasic has at all times complied with the orders issued by

11     the Trial Chamber including with respect to her provisional release.

12     This is weighed in her favour as is the fact that she surrendered

13     voluntarily to officials of the Ministry of the Interior of the Republic

14     of Serbia.  Moreover, the Chamber has considered Jelena Rasic's good

15     behaviour in detention, in particular against the backdrop of the special

16     circumstances of her custody being the only female detainee of the

17     Detention Unit.

18             The Chamber notes the parties' submissions regarding

19     Jelena Rasic's health condition.  The Defence argues that her condition

20     is comparable to some -- to other serious health problems which Chambers

21     have acknowledged as mitigating factors.  It argues that the Chamber

22     should consider in mitigation the effect that detention has on her

23     psychological well-being.

24             The Prosecution submits that Jelena Rasic's condition does not

25     appear to be a pre-existing clinical condition, but rather a reaction to

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 1     the circumstances in which she finds herself as a result of her criminal

 2     behaviour.  It agrees that this may be of some relevance but argues that

 3     it may not be a matter which should weigh heavily.  In respect of the

 4     Defence arguments that a longer sentence be suspended, the Prosecution

 5     submits that it's only in exceptional or rare cases that ill health

 6     should be considered in mitigation.  In other situations it is to be

 7     considered in the execution of the sentence.

 8             The Trial Chamber holds the view that it is only in exceptional

 9     circumstances or rare cases where ill health should be considered in

10     mitigation.  Jelena Rasic's health condition in the present case does not

11     fall within these parameters.  The Trial Chamber will therefore consider

12     her health condition in respect to the execution of the sentence.

13             We find that the serious of Jelena Rasic's crimes fully merits

14     the imposition of a 12-month sentence of immediate imprisonment in the

15     United Nations Detention Unit.  However, we consider that it is

16     appropriate in the current circumstances to suspend eight months of it,

17     including for reasons identified in mitigation.

18             We wish to emphasise the fact that we have especially taken

19     account of the particularly difficult circumstances that would be

20     engendered by her being the only female detainee in the

21     United Nations Detention Unit and the quasi-solitary confinement regime

22     that would follow.  Although the quasi-solitary nature of confinement is

23     neither unlawful in widely accepted jurisprudence nor designed to be

24     punitive, it is the accused's perception of it and the practical impact

25     upon her well-being to which we have given precedence.  In this respect

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 1     we have considered Dr. Vera Petrovic's reports concerning Jelena Rasic's

 2     health condition.  We have also considered Jelena Rasic's comparatively

 3     young age and this is the first time she is sentenced to a prison

 4     sentence.

 5             Turning to sentencing itself therefore, we sentence you,

 6     Jelena Rasic, to 12 months imprisonment.  You'll be given credit for the

 7     78 days for which you have so far been in detention.  You will not have

 8     to serve the last eight months of your sentence unless you are convicted

 9     for another crime punishable with imprisonment, including contempt of

10     court, during two years counting from today.

11             Are there any other matters, Mr. Rogers?

12             MR. ROGERS:  Your Honour, only in relation to the two medical

13     reports which the Prosecution, of course, has not seen.  I wonder if, as

14     they have been referred to in the judgement and form the basis for

15     Your Honours' decision, that we may have sight of them.  They may not be

16     publicly available but the ex-party status, I would ask, be lifted and

17     confidential status remain so the Prosecution may see those two reports.

18             JUDGE MORRISON:  Ms. Tapuskovic.

19             MS. TAPUSKOVIC: [Interpretation] I do not think that the ex parte

20     status of those documents should be abolished.  The Trial Chamber ordered

21     the Registrar to submit it in -- in at that status, and I believe that

22     the Trial Chamber had valid reasons for that.  Therefore, I do not think

23     that these documents need not be -- need not be forwarded to the

24     Prosecution just as it didn't get the previous two.

25             JUDGE MORRISON:  Very well.  What we will do is, as a Chamber, we

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 1     will consider the question of lifting the ex parte nature of those

 2     documents, and we will include that in the written judgement which will

 3     follow on from this oral judgement.

 4             Are there any other matters that either party wishes to raise?

 5             Thank you.  That is the end of today's proceedings, and the court

 6     is now adjourned.

 7                           --- Whereupon the Sentencing Hearing adjourned

 8                           at 2.28 p.m.