Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Tuesday, 31 July 2001

2 [Sentencing Proceeding]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.30 p.m.

6 JUDGE ROBINSON: Will the Registrar call the case, please.

7 THE REGISTRAR: Yes, Your Honours. Case number IT-95-9/1-S.

8 JUDGE ROBINSON: May we have the appearances?

9 MR. McCLOSKEY: Good afternoon, Mr. President, Your Honour. My

10 name is Peter McCloskey on behalf of the Office of the Prosecutor, and I'm

11 accompanied today by Gramsci Di Fazio and Aisling Reidy and Janet

12 Stewart.

13 JUDGE ROBINSON: And for the accused.

14 MR. BRASHICH: Good afternoon, Your Honour. Deyan Brashich and

15 Nikola Kostich for the Todorovic Defence.

16 JUDGE ROBINSON: Thank you. This hearing has been convened so

17 that the Trial Chamber may deliver its sentencing judgement in the case of

18 Prosecutor versus Stevan Todorovic.

19 Judge Fassi Fihri, who is a member of the Chamber, is absent

20 because he is indisposed. However, he concurs with the judgement.

21 I will, at the outset, present a brief chronology of the case

22 before turning to the matters addressed in the judgement itself.

23 The accused, Stevan Todorovic, was initially charged in a joint

24 indictment with five other accused for crimes alleged to have been

25 committed in the municipality of Bosanski Samac in Bosnia and Herzegovina

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1 between April 1992 and December 1993. Stevan Todorovic was charged in his

2 capacity as Chief of Police in Bosanski Samac with ten counts of crimes

3 against humanity, including persecution, deportation, murder, and inhumane

4 acts; nine counts of grave breaches of the Geneva Conventions; and eight

5 counts of violations of the laws or customs of war.

6 In November 2000, approximately two years after the initial

7 appearance of the accused, a joint motion was filed notifying the Trial

8 Chamber of an agreement between the accused and the Prosecution pursuant

9 to which Stevan Todorovic would plead guilty to Count 1 of the indictment

10 and the Prosecution would withdraw all other counts against him.

11 On December 13, 2000, Stevan Todorovic entered a plea of guilty on

12 Count 1 of the indictment. This plea was subsequently confirmed before

13 the full Chamber. Having satisfied itself that the requirements set forth

14 in Rule 62 bis had been met, the Trial Chamber entered a finding of guilt

15 against Stevan Todorovic. The proceedings against Todorovic were formally

16 separated from those against the other accused at this time.

17 At the sentencing hearing held on 4th May 2001, the Trial Chamber

18 admitted certain witness statements submitted by the Defence, as well as

19 two expert reports on the medical and psychological condition of Stevan

20 Todorovic. The Defence was given leave to call two witnesses in addition

21 to one of the medical experts, Dr. Lecic-Tosevski. Prior to the Defence

22 presenting its closing arguments, Stevan Todorovic himself made a

23 statement to the Chamber.

24 Following the practice of the Tribunal, for the purposes of this

25 hearing, I will briefly summarise the findings of the Chamber in this

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1 case, but I emphasise that this is only a summary and that it forms no

2 part of the judgement. The only authoritative account of the Chamber's

3 findings and of its reasons for those findings is to be found in the

4 written judgement itself, and copies of the judgement will be made

5 available to the parties at the close of this hearing.

6 This sentencing judgement is based upon the Trial Chamber's

7 acceptance of Stevan Todorovic's guilty plea and the consequent conviction

8 of the accused on Count 1 of the indictment for persecution as a crime

9 against humanity under Article 5 of the Statute of the Tribunal.

10 At the outset, the judgement addresses the gravity of the crime of

11 which Todorovic stands convicted. As the Appeals Chamber stated in the

12 Celebici case, the gravity of the offence is the primary consideration in

13 imposing sentence. This involves an assessment of both the criminal

14 conduct forming the basis for the conviction as well as any aggravating

15 circumstances. The judgement sets forth in summary form details of the

16 criminal conduct underlying Stevan Todorovic's conviction for the crime of

17 persecutions, including his participation in the beating and murder of

18 Anto Brandic, the beatings of several other individuals, among them (redacted)

19 (redacted), Silvestar Antunovic, Hasan Bicic, Kemal Bobic, (redacted)

20 (redacted), Abdulah Drljacic, Zlatko Dubric, (redacted), and Hasan

21 Subasic, and the sexual assault of six men at the police station in

22 Bosanski Samac. Stevan Todorovic has also admitted participating in the

23 unlawful detention, the cruel and inhumane treatment, and the deportation

24 and forcible transfer of Bosnian Muslims, Bosnian Croats, and other

25 non-Serb civilians in the municipality of Bosanski Samac.

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1 As a component of the overall gravity of the offence, the Chamber

2 has taken into account as aggravating factors the accused's position of

3 superior authority as chief of police in Bosanski Samac and the cruel

4 manner in which he perpetrated several of the criminal acts underlying his

5 conviction. In light of the above, the Chamber concludes that Stevan

6 Todorovic's crime was particularly grave.

7 The Chamber then examines any mitigating factors and finds that

8 there are four factors in this case which may be considered in mitigation

9 of sentence, namely, the accused's guilty plea, his substantial

10 cooperation with the Prosecution, his expressed remorse for his crimes,

11 and the question of his allegedly diminished mental capacity.

12 The Chamber observes that Todorovic is only the third accused

13 before this Tribunal to have been convicted on the basis of a guilty plea.

14 The Chamber recognises the benefit to the Tribunal in terms of time and

15 resources when an accused enters a plea of guilty and, in particular, when

16 such a plea is entered early on in the proceedings or, in any event,

17 before the trial itself has begun. The Chamber considers that a guilty

18 plea should, in principle, give rise to a reduction in the sentence that

19 the accused would otherwise have received, and the Trial Chamber observes

20 that Stevan Todorovic's trial had not yet commenced when he decided to

21 plead guilty. It recognises the considerable contribution of Todorovic's

22 guilty plea to the efficiency of the work of the International Tribunal

23 and to its search for its truth, and it takes it into account in

24 mitigation of sentence.

25 The Chamber next takes note of the plea agreement pursuant to

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1 which Stevan Todorovic has agreed to cooperate with the Prosecution by

2 providing "truthful and complete information" and by testifying in the

3 case against his former co-accused, and, as requested by the Prosecution,

4 in any other proceedings. The Chamber has regard to the Prosecution's

5 submissions as to the quantity and quality of the information provided by

6 Stevan Todorovic thus far, and it concludes that his cooperation with the

7 Prosecution to date has been substantial and that such cooperation ought

8 to be considered as a mitigating circumstance in this case.

9 It is found that to accept remorse as a mitigating factor in

10 sentencing, the Trial Chamber must be satisfied as to the sincerity of the

11 expressed remorse. In this regard, the Chamber recalls the statement made

12 by Todorovic during the sentencing hearing in which he expressed

13 repentance and remorse for his crimes and the willingness and desire to

14 contribute to the process of reconciliation in Bosnia and Herzegovina.

15 The Chamber therefore treats his remorse as a mitigating factor in

16 determining sentence.

17 In relation to the question whether the accused's alleged

18 diminished responsibility may act in mitigation of sentence, the Chamber

19 found that neither of the two expert reports filed on Stevan Todorovic's

20 medical and psychological status suggest that his condition at the time

21 the crimes were committed was one which would give rise to mitigation of

22 sentence.

23 As it is obliged by the Statute and the Rules to do, the Chamber

24 then turns to consider the general practice regarding prison sentences in

25 the courts of the former Yugoslavia. It found that for the crime of which

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1 Todorovic stands convicted, the punishment prescribed under the Criminal

2 Code of the SFRY ranges from 5 to 20 years' imprisonment. While it must

3 consider the practice of the courts in the former Yugoslavia in imposing

4 sentence, the Chamber recalls that it is not bound by such practice.

5 In the final section of the judgement, the Chamber considers the

6 relative weight to be accorded to each of the above-mentioned factors in

7 determining sentence. At the outset, it is noted that the Defence had

8 urged a comparison between this case and that of Erdemovic, in which the

9 accused was sentenced to five years' imprisonment for his conviction on a

10 count of murder as a violation of the laws and customs of war, but the

11 Chamber finds that case readily distinguishable in that the Trial Chamber

12 in Erdemovic considered duress as a mitigating factor, an element that is

13 absent in this case. For that reason, the Chamber considers that the

14 Erdemovic case is not helpful in providing a benchmark for Todorovic's

15 sentence. The Chamber reiterates the very grave nature of Stevan

16 Todorovic's crime. In particular, it is recalled that the crime of

17 persecution is the only crime against humanity which requires that the

18 perpetrator act with a discriminatory intent. It is found that the

19 gravity of Stevan Todorovic's criminal conduct was aggravated by his

20 superior position and by the manner in which the crimes were committed.

21 Indeed, the Chamber holds that, while mitigating factors have been given

22 considerable weight in the determination of the sentence in this case,

23 this in no way detracts from the gravity of Stevan Todorovic's crime. It

24 is found that Stevan Todorovic's plea of guilty and his substantial

25 cooperation with the Prosecution are of primary importance as mitigating

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1 factors in this case. The Chamber states that had it not been for these

2 factors, he would have received a much longer sentence.

3 I shall now read out the operative paragraph of the sentencing

4 judgement of this Chamber. It is as follows:

5 Stand, Mr. Todorovic.

6 For the foregoing reasons, having considered the arguments of the

7 parties, the evidence presented at the sentencing hearing, and the Statute

8 and the Rules, the Trial Chamber sentences Stevan Todorovic to ten years'

9 imprisonment and states that he is entitled to credit for two years, ten

10 months, and three days in relation to the sentence imposed by the Trial

11 Chamber as of the date of this sentencing judgement, together with such

12 additional time as he may serve pending the determination of any appeal.

13 Pursuant to Rule 103(C), Stevan Todorovic shall remain in the custody of

14 the International Tribunal pending the finalisation of arrangements for

15 his transfer to the state where his sentence will be served.

16 The Registrar is reminded to distribute copies of the judgement to

17 the parties.

18 The hearing is adjourned.

19 --- Whereupon the Sentencing Hearing adjourned at

20 4.48 p.m.