Tribunal Criminal Tribunal for the Former Yugoslavia

Page 200

1 Wednesday, 31 March 2004

2 [Sentencing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-02-59-S, the Prosecutor versus Darko Mrdja.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 Before I ask the appearances, Mr. Mrdja, could you confirm to me

11 that you can hear me in a language you understand.

12 THE ACCUSED: [Interpretation] Your Honour, yes, I can hear you.

13 Thank you.

14 JUDGE ORIE: Thank you. Please be seated, Mr. Mrdja.

15 THE ACCUSED: [Interpretation] Thank you.

16 JUDGE ORIE: May I have the appearances. Prosecution first.

17 MR. TIEGER: Good afternoon, Mr. President, Your Honours. Alan

18 Tieger and Tim Resch on behalf of the Prosecution, assisted by case

19 manager Skye Winner.

20 JUDGE ORIE: Thank you, Mr. Tieger. And for the Defence.

21 MR. DIMITRIJEVIC: Good afternoon, Your Honours. Vojislav

22 Dimitrijevic, Defence counsel, and my learned colleague Mr. Otmar

23 Wachenheim as co-counsel.

24 JUDGE ORIE: Thank you, Mr. Dimitrijevic. First of all, good

25 afternoon to everyone in this courtroom and those assisting us just

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1 outside of this courtroom.

2 We are sitting today to deliver our sentencing judgement of Darko

3 Mrdja for his participation in the murder of approximately 200 civilians

4 and the inhumane acts (through attempted murder) of 12 civilians at

5 Koricanski Stijene, in Bosnia and Herzegovina, on the 21st of August,

6 1992.

7 What now follows is only a summary of the written judgement and

8 does not form part of that. The full text of the judgement will be made

9 available to the Prosecution, to Defence counsel, and the public at the

10 close of this session.

11 We will briefly set out the context and facts of the case before

12 going on to review the factors which we took into consideration in

13 determining sentence.

14 Darko Mrdja was born on the 28th of June, 1967, in Zagreb,

15 Croatia. He grew up in Tukovi, in the municipality of Prijedor, in Bosnia

16 and Herzegovina and worked at the nearby mine in Omarska. In 1992, during

17 the conflict in Bosnia and Herzegovina, he was a member of a special

18 police unit known as the Intervention Squad serving under the Bosnian Serb

19 authorities in Prijedor.

20 On the 26th of April, 2002, Judge Liu confirmed the indictment

21 issued by the Prosecution against Mrdja and it initially charged three

22 counts, extermination as a crime against humanity under count 1, murder as

23 a violation of the laws or customs of war under count 2, and inhumane acts

24 as a crime against humanity under count 3.

25 On the 13th of June, 2002, Darko Mrdja was arrested and was

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1 subsequently transferred to the Detention Unit of the Tribunal. On the

2 17th of June, 2002, he appeared before the Tribunal and entered a plea of

3 not guilty.

4 One year later, on the 24th of July, 2003, Darko Mrdja entered

5 into a plea agreement with the Prosecution. In accordance with the plea

6 agreement, the Prosecution withdrew, with the consent of the Trial

7 Chamber, the charges under count 1 of the indictment and Mrdja admitted

8 responsibility for murder and inhumane acts (through attempted murder)

9 under counts 2 and 3 of the indictment. He also agreed to cooperate with

10 the Prosecution. Thereafter, at the hearing of the 24th of July, 2003,

11 Mrdja pleaded guilty to counts 2 and 3. The Trial Chamber accepted this

12 plea after being satisfied that it had been made voluntarily, that it was

13 informed and unequivocal, and that there was sufficient factual basis for

14 the crimes and for Mrdja's participation in them.

15 What now follows is a summary of the facts which form the basis of

16 Mrdja conviction as described in the plea agreement.

17 In August 1992, an armed conflict was under way in Bosnia and

18 Herzegovina. The conflict involved a widespread and systematic attack

19 upon the non-Serb civilian population in the municipality of Prijedor.

20 Mrdja has acknowledged that the times to which he has pleaded guilty were

21 part of this widespread and systematic attack.

22 On the 21st of August, 1992, Mrdja was a member of the Prijedor

23 Intervention Squad, to which I just referred. On this day, Mrdja, in his

24 official capacity as a police officer, participated in the escorting -- in

25 escorting an organised convoy of Muslim and other non-Serb civilians from

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1 Tukovi and the Trnopolje camp in the Prijedor area in the direction of the

2 municipality of Travnik. The convoy consisted of buses and trucks loaded

3 with civilians.

4 At a location on the road along the Ilomska River between Skender

5 Vakuf and Mt. Vlasic, the convoy stopped. Mrdja and other members of the

6 Intervention Squad actively implemented orders to separate military-aged

7 men from the rest of the convoy. Mrdja personally selected men from the

8 convoy with the awareness and the expectation that they would be murdered.

9 A large number of men, estimated in excess of 200, were loaded onto two

10 buses.

11 Mrdja and the other members of the Intervention Squad took the

12 separated men in the two buses to Koricanski Stijene. The men from one of

13 the buses were ordered off the bus, escorted to the side of the road above

14 a deep ravine, ordered to kneel, and were then shot and killed. The men

15 from the other bus were taken off in smaller groups of two or three and

16 were then shot and killed. Together with the other members of the

17 Intervention Squad, Mrdja personally and directly participated in the

18 unloading, guarding, escorting, shooting, and killing of the unarmed men

19 at Koricanski Stijene. Except for 12 men who survived the massacre, all

20 of the men taken from the two buses were murdered.

21 We will now give an overview of the factors we have taken into

22 consideration in assessing the seriousness of the crime. We will then

23 briefly discuss the aggravating and mitigating circumstances applicable in

24 the present case.

25 Seriousness of the crimes.

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1 In determining the seriousness of the crimes, we have given

2 consideration to the scope and general nature of the offences committed,

3 the role played by Darko Mrdja, and the impact of the crime upon the

4 victims and their families.

5 In relation to the scope of the crimes, it has not been possible

6 to determine the precise number of civilians killed by Mrdja himself.

7 However, his participation in a large-scale massacre in which about 200

8 civilians were killed is uncontested.

9 As for Mrdja's role, he was not the architect of the massacre.

10 Together with other members of the Intervention Squad, he was acting in

11 furtherance of superior orders. Nevertheless, we conclude that the fact

12 that Mrdja personally participated in the selection of the civilians who

13 were going to be killed and in their subsequent murder and attempted

14 murder of 12 of them, knowing that a widespread and systematic attack

15 against civilians was under way makes these crimes charged especially

16 serious.

17 Lastly, we evaluated the seriousness of Mrdja's crimes in light of

18 their impact upon the victims and their effects upon the victims'

19 families. In so doing, we examined the statements of some of those who

20 survived the massacres, which were presented by the Prosecution. Further,

21 at the hearing of the 24th of July, 2003, we heard two witnesses,

22 Mr. Mujkanovic, a survivor of the crimes, and Ms. Karabasic, the president

23 of the Izvor Association of Prijedor Women. The significant effect of the

24 crimes upon the victims' families adds to the seriousness of the crimes.

25 As to the impact of the crimes on the victims, we are convinced beyond a

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1 reasonable doubt that most of them were subjected to a level of suffering

2 which significantly exceeded the level of suffering usually suffered by

3 victims of murders and inhumane acts. We have considered the level of

4 suffering inflicted on the victims as an aggravating factor.

5 We conclude that the sentence should reflect all of the cruelty

6 and inhumanity embodied in Darko Mrdja's direct participation in the

7 shooting of more than 200 civilians of which all but 12 were killed.

8 Aggravating and mitigating circumstances.

9 In addition to the aforementioned ground of aggravation relating

10 to the impact of the crimes upon victims, we have considered the two

11 aggravating circumstances put forth by the Prosecution, namely the

12 vulnerability of the victims and Mrdja's position of authority. With

13 regard to the former, we consider that the fact that the victims were

14 civilians cannot as such be taken into account as an aggravating factor as

15 it is already an element of murder as a violation of the laws or customs

16 of war and of inhumane acts as a crime against humanity. However, we have

17 found that the fact that a considerable number of victims had previously

18 been detained in camps and were therefore particularly vulnerable should

19 indeed aggravate the sentence. Moreover, we have found that the position

20 of Darko Mrdja as a policeman is an aggravating factor, but we do not

21 attach much weight to that.

22 The Trial Chamber also examined a total of seven mitigating

23 circumstances pleaded by the Prosecution and the Defence; that is, duress

24 and compliance with superior orders, cooperation with the Prosecution, the

25 guilty plea itself, Mrdja's remorse, Mrdja's personal circumstances, the

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1 length of time which elapsed between the crime and the trial, and the fact

2 that Mrdja must serve his sentence in a country outside the area of the

3 former Yugoslavia where he used to live with his family.

4 As to the argument of duress, we have found that the Defence

5 failed to show that Mrdja would have been killed or would have at least

6 suffered serious consequences had he not carried out the orders of his

7 superiors. We accept that the difficult circumstances prevailing at the

8 time of the crime may have had some influence on the criminal behaviour of

9 Mrdja, although we do not accept that those circumstances were such that

10 Mrdja had no alternative but to participate in the massacre of around 200

11 civilians. The absence of any convincing evidence and any meaningful sign

12 that Darko Mrdja wanted to dissociate himself from the massacre at the

13 time of its commission prevented us from accepting duress as a mitigating

14 circumstance. In making this determination, we fully took into account

15 Mrdja's age and low rank.

16 With respect to adherence to superior orders, a discretionary

17 mitigating factor provided for in Article 7(4) of the Statute of the

18 Tribunal, we considered that the orders Mrdja acted on were so manifestly

19 unlawful that he must have been well aware that they violated the most

20 elementary laws of war and the basic dictates of humanity. The fact that

21 Mrdja obeyed such orders, as opposed to acting on his own initiative, does

22 not merit mitigation of punishment.

23 In respect of Mrdja's cooperation with the Prosecution, we accept

24 the Prosecution's submission that it has been significant. This counts as

25 a mitigating circumstance.

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1 We also hold that Mrdja's guilty plea helps to establish the truth

2 surrounding the crimes committed at Koricanski Stijene and may contribute

3 to promoting reconciliation between the peoples of Bosnia and Herzegovina.

4 We note, incidentally, that his plea made it possible to obviate

5 the expense of a lengthy trial and the need for a large number of victims

6 and witnesses to come and testify at the Tribunal. We therefore consider

7 the guilty plea to be a mitigating factor.

8 As to remorse, we hold that the expression of Mrdja's remorse is

9 sincere and should be taken into account in mitigation.

10 We find that Mrdja's personal circumstances, in particular the

11 fact that he was raised under difficult circumstances, his good conduct

12 whilst in detention, and the fact that since the events in August 1992 he

13 has married and has two children, one of whom is chronically ill, should

14 be considered together in mitigation but that little weight should be

15 attached to them in this regard.

16 As for the length of time which elapsed between the crimes and the

17 trial, we note that the Defence seems to confuse this issue with that of

18 the right to be tried within a reasonable period of time. A violation of

19 that right cannot be sustained here, since the relevant time runs only

20 from the moment an accused is either formally charged by the Tribunal or

21 is arrested. Mrdja was indicted on the 26th of April, 2002. Was indicted

22 on that date and was arrested on the 13th of June, 2002, that is, less

23 than two years before the hearings commenced. Furthermore, we are of the

24 view that for crimes such as those charged in the present case of a

25 seriousness justifying their exclusion from statutory limitation, a lapse

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1 of time of almost 12 years between commission of the crimes and sentencing

2 proceedings is not so long as to be considered a factor in mitigation.

3 Finally, we recognise the fact that Mrdja must serve his sentence

4 in a state different from that which his family resides in and whose

5 language he does not speak may constitute an additional hardship for him.

6 This factor is to be taken into account when determining the appropriate

7 sentence, but it is not as such a mitigating circumstance.

8 Mr. Mrdja, would you please rise.

9 Mr. Mrdja, we have duly examined the evidence relevant to an

10 accurate determination of the seriousness of the murders constituting war

11 crimes and inhumane acts (attempted murders) constituting crimes against

12 humanity of which you have been found guilty. The sentence you receive

13 should be proportional to all the seriousness, cruelty, and inhumanity of

14 the massacre which took the lives of around 200 civilians and inflicted

15 considerable suffering upon the survivors and the victims' families. We

16 consider that the special vulnerability of the victims at the time of the

17 commission of the crime and the particularly high level of suffering you

18 inflicted upon them are aggravating factors. Your position of authority

19 as a policeman was also considered an aggravating factor but of limited

20 weight. Moreover, we've taken into account most of the mitigating

21 circumstances you raised. You cooperated in a substantial manner with the

22 Prosecution, you pleaded guilty, and you have expressed remorse. Your

23 personal and family situation also have been considered. We dismissed,

24 however, your submissions with respect to duress, superior orders, and the

25 time which elapsed since the commission of the crimes.

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1 This Trial Chamber hereby sentences you, Darko Mrdja, to 17 years'

2 of imprisonment. You are entitled to credit for time spent in detention,

3 namely 658 days.

4 Please be seated.

5 Where in the summary of the judgement I said that we heard

6 witnesses on the 24th of July, 2003, I should stand corrected since these

7 witnesses were heard during the sentencing hearing, which took place in

8 October of that same year.

9 The Trial Chamber stands adjourned.

10 --- Whereupon the Sentencing adjourned

11 at 3.25 p.m.