The Prosecutor v. Dragan Nikolic - Case No. IT-94-2-S

“Sentencing Judgement”

18 December 2003
Trial Chamber II (Judges Schomburg [Presiding], Agius and Mumba)

Procedural Background

· On 4 November 1994, Dragan Nikolic (“Accused”) was indicted by the Tribunal.¹ The Indictment charged him with counts of grave breaches of the Geneva Conventions, crimes against humanity and violations of the laws or customs of war² for his responsibility as a commander in the Susica detention camp near the town of Vlasenica, Vlasenica municipality, Bosnia and Herzegovina (“BiH”).

· On 16 May 1995, the Trial Chamber initiated proceedings pursuant to Rule 61 of the Rules of Procedure and Evidence (“Rules”)³ after it proved impossible to serve the Indictment and execute the arrest warrants.⁴ It heard 15 viva voce witnesses in public hearings between 9 and 13 October 1995. On 20 October 1995, the Trial Chamber issued its decision on the Rule 61 proceedings whereby it determined that there were reasonable grounds to believe that Dragan Nikolic had committed all the crimes in the Indictment.⁵ An international arrest warrant was issued against him that same day.⁶

· On or about 20 April 2000, the Accused was apprehended by the multinational Stabilisation Force (“SFOR”) in BiH.⁷ He was transferred to the Tribunal the next day.

· At his 28 April 2000 initial appearance, the Accused pleaded not guilty to all 80 counts of the First Amended Indictment of 12 February 1999.

· On 18 March 2002, the Accused pleaded not guilty to the Second Amended Indictment of 15 February 2002.

· At the 27 June 2003 Status Conference, the Accused pleaded not guilty to the Third Amended Indictment.⁸

· On 2 September 2003, the Prosecution and Defence filed a Confidential Joint Plea Agreement Submission (“Plea Agreement”). The factual basis of the Plea Agreement was taken from the Indictment.

· On 4 September 2003, the Plea Hearing took place. The Trial Chamber accepted the Plea Agreement and entered a finding of guilt after Dragan Nikolic pleaded guilty to Counts 1 to 4 of the Indictment.

· The Sentencing Hearing commenced on 3 November 2003 and concluded on 6 November 2003.

Sentencing Judgement

The Trial Chamber entered a single conviction against Dragan Nikolic under Count 1 of the Indictment, namely persecutions as a crime against humanity, incorporating Count 2 (murder as a crime against humanity), Count 3 (rape as a crime against humanity ) and Count 4 (torture as a crime against humanity). It sentenced Dragan Nikolic to 23 years of imprisonment.⁹

Reasoning

Range of sentences

While Article 24 of the Statute¹¹ and Rule 101 of the Rules of Procedure and Evidence¹² of the Tribunal provide a non-exhaustive list of factors to be taken into account by Trial Chambers in determining the sentence for offences falling within the Tribunal’s jurisdiction, neither the Statute nor the Rules provides for a concrete range of penalties. The determination of the appropriate sentence is left to the discretion of the Trial Chamber which has the responsibility to “come as close as possible to justice for both victims and their relatives and the Accused”.¹³

On 25 September 2003, the Trial Chamber issued proprio motu an order requesting Dr. Ulrich Sieber, Director of the “Max-Plank-Institute für ausländisches und internationals Strafrecht” in Freiburg, Germany, to submit an expert report (“Sentencing Report ”) on the “range of sentences for the crimes […] to which the Accused [had] pleaded guilty”. This report addressed the sentencing law in the former Yugoslavia, in member States of the Council of Europe and in other major legal systems.

Sentencing in the former Yugoslavia¹⁴

The Sentencing Report comprised both a normative and an empirical section, the latter being based on semi-standardised interviews with 17 judges from different parts of the former Yugoslavia. It addressed in detail the applicable law in the territory of the former Yugoslavia with regard to the crimes charged in the Indictment. It also addressed the range of sentences available under the laws of BiH when the crimes to which the Accused had pleaded guilty were committed. Under the Federal Criminal Code of 1976/77, the maximum term of imprisonment was 15 years, except for offences punishable with the death penalty, committed under “particularly grave circumstances” or causing “especially grave consequences”, in which case the maximum term of imprisonment was 20 years. Murder was punishable with imprisonment of not less than five years and in aggravated cases with imprisonment of no less than 10 years or the death penalty, such as for murder in a cruel way, carried out violently, by endangering the life of others, or by motive of greed. Rape was punishable with between one and 10 years of imprisonment, the lower limit being set at three years in aggravated cases. Grievous bodily injury was punishable with between six months and five years of imprisonment. If committed “in time of war, armed conflict or occupation”, such offences were qualified as war crimes and were punishable with imprisonment of a minimum of five years or with the death penalty.

Applicability of the principle of lex mitior

The issue of the applicability of the principle of lex mitior had been raised by the Defence. According to this principle, if a law is amended one or more times after the commission of a given criminal act, the law which is the less severe in relation to the offender should be applied. Following its analysis of the applicable law in the territory of the former Yugoslavia in 2003¹⁵, the Trial Chamber noted that were the principle of lex mitior to be applied to the present case, the range of sentences would have been restricted to a fixed term of imprisonment of between 20 and 45 years instead of a term up to and including the remainder of the convicted person’s life as is provided in Rule 101(A) of the Rules. It found that the principle of lex mitior as contained inter alia in the International Covenant on Civil and Political Rights of 1966 (“ICCPR”) and the American Convention on Human Rights of 1978 (“ACHR”)¹⁶ constitutes an “internationally recognised standard” regarding the rights of the accused.¹⁷ Nevertheless, it found that this principle “applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction”.¹⁸ The Trial Chamber further found that “[i]n the event of concurrent jurisdiction, no state is generally bound to apply the sentencing range or sentencing law of another state where the offence was committed”.¹⁹ Indeed, with respect to the concurrent jurisdiction of the Tribunal and jurisdictions in the former Yugoslavia, the Appeals Chamber held in the Celebici Appeals Judgement that:

“Trial Chambers are not bound by the practice of courts in the former Yugoslavia in reaching their determination of the appropriate sentence for a convicted person. This principle applies to offences committed both before and after the Tribunal’s establishment. The Appeals Chamber can therefore see no reason why it should constitute a retrospective increase in sentence to impose a sentence greater than what may have been the maximum sentence available under domestic law in the former Yugoslavia at the time the offences were committed.”²⁰

The Trial Chamber concluded that it was not bound to apply the more lenient range of sentences applicable under the law of the Republika Srpska which had only to be taken into consideration as merely “one factor among others when determining sentence”.²¹

Sentencing in other countries

In addition to analysing the sentencing procedure applied in the former Yugoslavia with respect to the crimes to which the Accused had pleaded guilty, the Sentencing Report addressed the sentencing ranges in 23 other countries from all around the world. This overview showed that “in most countries a single act of murder attracts life imprisonment or the death penalty, as either an optional or a mandatory sanction ”.²² The Trial Chamber found that “[w]hen adopting the Statute in 1993, the Security Council was apparently cognisant of this practise and decided to vest broad discretion to the judges in determining sentences, instead of giving concrete sentencing ranges for specific offences”.²³ It further noted that in view of the United Nations’ general policy on the abolition of the death penalty, the Security Council had limited the applicable sentences to imprisonment.²⁴

Bearing these principles in mind, the Trial Chamber then turned to the gravity of the crime and the aggravating circumstances.

Aggravating circumstances

Position of authority

The Trial Chamber found that, as a commander in the Susica camp, Dragan Nikolic had “an overall responsibility to protect the detainees from abuse and to ensure that the conditions under which they were forced to live were humane” but that he instead chose to “mistreat the detainees, thereby setting an example for the guards to follow and contributing to an environment of impunity”.²⁵ It found that he had “deliberately and callously committed the crimes in the Indictment”, that he had not been “under any orders from his superiors [or] under any compulsion or pressure to behave in this manner” and that he had used his position of authority to “intimidate the detainees and prevent them from resisting”. Accordingly, the Chamber found that “the Accused’s abuse of his superior position in the camp in principle aggravate[d] his crimes”.²⁶

Vulnerability of the victims

In the Banovic Sentencing Judgement, the Trial Chamber ruled that “the position of inferiority and the vulnerability of the victims as well as the context in which the offences were committed [were] relevant factors in assessing the gravity of the crime”.²⁷ The present Trial Chamber found that the victims had been subjected to a position of special vulnerability and accepted this factor as especially aggravating: “the victims were particularly vulnerable and treated rather as slaves than inmates under the Accused’s supervision”.²⁸

Depravity of the crimes

The Trial Chamber found it “hard to imagine how murder, torture and sexual violence could be committed in a harsher and more brutal way than employed by the Accused, assisted by others”.²⁹ It considered the depravity of the crimes as an especially aggravating factor. With regard to the beatings (charged in the Indictment as torture), the Trial Chamber considered that, due to their seriousness and the particular viciousness with which they were committed, these crimes amounted to the “highest level of torture” and had “all of the makings of de facto attempted murder”.³⁰

Multiplicity of victims

The Trial Chamber found that “[a]lthough most of the detainees were not direct victims of the Accused’s brutal acts of murder, torture and sexual violence […], each and every detainee of the camp was an immediate victim of the more insidious forms of abuse, specifically the inhumane living conditions and the atmosphere of terror created by the murders, beatings, sexual violence and other mental and physical abuse”.³¹ It accepted the multiplicity of victims as an especially aggravating factor.

Relation to the victims

Muslims from the municipality of Vlasenica, where the Accused had spent most of his life up until the war, accounted for a large proportion of the thousands of detainees that passed through Susica camp. The Trial Chamber found that “under certain circumstances the knowledge of or even the friendship with a victim may amount to an aggravating factor”.³² However, it stated that it did not have enough “detailed facts about individual relationships ” the Accused may have had with the victims and so did not attach any weight to this factor in determining sentence.

Having regard for only the gravity of the crime and the aggravating circumstances, the Trial Chamber found that “no other punishment could be imposed except a sentence of imprisonment for a term up to and including the remainder of the Accused’s life ”. ³³ It then turned to the mitigating circumstances.

Mitigating circumstances

Plea agreement and guilty plea

In order to assess the mitigating effect of a guilty plea, the Trial Chamber analysed the Sentencing Report of the Max Plank Institute and found that “there are primarily pragmatic grounds for reducing sentence if a guilty plea results from the willingness of an offender to co-operate in the administration of justice”.³⁴ It found that further justification for a reduction was provided by: “remorse, acknowledgment of responsibility and sparing the victims from testifying and being cross-examined ”.³⁵ It further held that in considering a reduction of sentence, “the stage of proceedings at which the offender pleads guilty and the circumstances in which the plea is tendered” were relevant factors.³⁶

The Trial Chamber then turned to the reasons given in the jurisprudence of the Tribunal and the International Criminal Tribunal for Rwanda (“ICTR”) for a guilty plea to be considered in mitigation:

- showing of remorse³⁷ and repentance;³⁸
- contribution to reconciliation³⁹ and establishing the truth;⁴⁰
- encouragement of other perpetrators to come forth;⁴¹
- fact that witnesses are relieved from giving evidence in court;⁴²
- fact that a guilty plea saves the Tribunal the “effort of a lengthy investigation and trial”.⁴³

The Trial Chamber recognised the importance of Dragan Nikolic’s guilty plea as “an expression of his honesty and readiness to take responsibility, and coupled with his expression of remorse and his co-operation with the Prosecution, as a contribution to reconciliation in Vlasenica municipality”.⁴⁴

In determining the sentence, the Trial Chamber attached particular importance to such factors as the guilty plea, the Accused’s genuine expression of remorse, reconciliation and the disclosure of additional information to the Prosecution.⁴⁵ It did not attach any weight to the length of the proceedings as a mitigating factor.

Length of proceedings

The Trial Chamber noted that in keeping with all of the leading decisions by the European Court of Human Rights and the decisions of several national courts, the disproportionate length of a procedure may be considered as a mitigating factor in sentencing.⁴⁶ It noted, however, that in most of the cases, it had been held that, in light of Article 6 (1), sentence 1 of the European Convention for Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (“ECHR”)⁴⁷, the “reasonable time” requirement generally comprised solely the time-frame starting from the indictment and/or arrest of the accused and ending with the legally binding, final decision of the court.⁴⁸ It further observed that it had been held that the violation of the accused’s basic right to a fair and speedy trial should only be remedied and compensated if the perpetrator was not himself responsible for the delay of the proceedings.⁴⁹

The Trial Chamber noted that in the present case the Accused had already been well informed about the Indictment against him by the end of 1994 or the beginning of 1995 but had been apprehended by SFOR only in 2000. It found that the time spent in the United Nations Detention Unit could not be regarded as disproportional, given inter alia the lengthy period of time necessary for preparing and deciding his motions on jurisdiction.⁵⁰

The Trial Chamber then referred to a recent decision by the German Federal Supreme Court in which it was emphasised that due to the seriousness of the crimes committed in 1943-44 by a now 90 years former camp commander, extraordinary circumstances mitigating the accused’s guilt were not applicable.⁵¹

The Trial Chamber therefore concluded that “neither the length of time between the criminal conduct and the judgement nor the time between arrest and judgement [could] be considered as a mitigating factor”.⁵²

Sentence

Balancing the gravity of the crimes and aggravating factors against the mitigating factors, the Trial Chamber held that it could not follow the Prosecution’s recommendation of a term of 15 years of imprisonment.⁵³ It found that the “brutality, the number of crimes committed and the underlying intention to humiliate and degrade would render a sentence such as that recommended unjust” as it believed it “not only reasonable and responsible, but also necessary in the interests of the victims, their relatives and the international community, to impose a higher sentence than the one recommended by the Parties”.⁵⁴

The Trial Chamber expressed its awareness that “from a human rights perspective each accused, having served the necessary part of his sentence, ought to have a chance to be reintegrated into society in the event that he no longer pose[d] any danger to society and there [was] no risk that he [would] repeat his crimes”. It found however that “at least the term of imprisonment recommended by the Prosecutor would have to be served” before the convicted person was released and reintegrated into society.⁵⁵ It concluded that a sentence of 23 years’ imprisonment was adequate and proportional.

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1. Dragan Nikolic was the first person indicted by the Tribunal.
2. Dragan Nikolic, a.k.a. “Jenki” Nikolic, IT-94-2-I, Review of the Indictment, 4 November 1994. The Indictment did not specify the number of counts against the Accused.
3. Dragan Nikolic, a.k.a. “Jenki” Nikolic, IT-94-2-R61, Order Submitting Indictment to Trial Chamber for Hearing, 16 May 1995. This was the first Rule 61 hearing before the Tribunal. On the Rule 61 proceedings in this case, see the Dragan Nikolic case information sheets available on the Tribunal Website at www.un.org/icty under “The ICTY at a Glance/Case Information Sheets”.
4. Two arrest warrants had been issued: one to the administration in Pale and the other to the Republic of Bosnia and Herzegovina.
5. Dragan Nikolic, a.k.a. “Jenki” Nikolic, IT-94-2-R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, p. 23.
6. Dragan Nikolic, a.k.a. “Jenki” Nikolic, IT-94-2-R61, International Warrant of Arrest and Order for Surrender, 20 October 1995.
7. The Accused later challenged the legality of his arrest. See Dragan Nikolic, IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, Judicial Supplement No. 37. See also Dragan Nikolic, IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, Judicial Supplement No. 42.
8. The Third Amended Indictment was accepted by the Trial Chamber during the Status Conference and confirmed in a written decision of 30 June 2003 (Dragan Nikolic, IT-94-2-PT, Decision on the Prosecution’s Motion for Leave to Amend the Second Amended Indictment, 30 June 2003).
9. Dragan Nikolic was entitled to credit for the time he served from his deprivation of liberty (20 April 2000) to the date of the Sentencing Judgement (3 years, 7 months and 29 days). On 16 January 2004, the Accused filed his notice of appeal against the Judgement.
10. The procedure for and appropriateness of plea agreements in cases involving serious violations of international humanitarian law were dealt with in Momir Nikolic, IT-02-60/1-S, Sentencing Judgement (“Momir Nikolic Sentencing Judgement”), 2 December 2003, Judicial Supplement No. 46. This summary will therefore only deal with the range of sentences and the sentencing factors.
11. Article 24 states in relevant part: “1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia. 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”
12. Rule 101 states: “(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life. (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as: (i) any aggravating circumstances; (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia; (iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute. (C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.”
13. Sentencing Judgement, para. 4.
14. Pursuant to Article 24(1) of the Statute and Rule 101(B)(iii) of the Rules, Trial Chambers must take into account the “general practice regarding prison sentences in the courts of the former Yugoslavia” in determining sentence. However it is settled jurisprudence that Trial Chambers are not bound by this “general practice”.
15. The Trial Chamber took into account the new Criminal Code for both entities in the State of BiH and the Brcko District which was enacted by the Office of the High Representative in March 2003, and the March 2003 Criminal Code of the Republika Srpska (see para. 158 of the Sentencing Judgement).
16. Article 15(1) of the ICCPR states in relevant part: “If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”. Article 9 of the ACHR is worded in similar terms.
17. Sentencing Judgement, para. 160. The Trial Chamber referred to the obligation of the International Tribunal under which it must “fully respect internationally recognised standards regarding the rights of the accused” as set out in para. 106 of the Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993, S/25704, 3 May 1993).
18. Sentencing Judgement, para. 163.
19. Ibid., para. 164.
20. Delalic et al., IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”), para. 816, Judicial Supplement No. 23.
21. Sentencing Judgement, para. 165.
22. Ibid., para. 172.
23. Ibid.
24. See Article 24(1) of the Statute.
25. Sentencing Judgement, para. 179.
26. Ibid., para. 183.
27. Banovic, IT-02-65/1-S, Sentencing Judgement (“Banovic Sentencing Judgement”), 28 October 2003, para. 50.
28. Sentencing Judgement, para. 213.
29. Ibid., para. 186.
30. Ibid., para. 213.
31. Ibid., para. 206.
32. Ibid., para. 212.
33. Ibid., para. 214.
34. Ibid., para. 228.
35. Ibid.
36. Ibid.
37. Plavsic, IT-00-39&40/1, Sentencing Judgement (“Plavsic Sentencing Judgement”), 27 February 2003, para. 70, Judicial Supplement No. 40.
38. Ruggiu, ICTR-97-32-I, Judgement and Sentence, 1 June 2000, para. 55. See also Jelisic, IT-95-10-T, Judgement, 14 December 1999, para. 127, Judicial Supplement No. 10: “(A(lthough the Trial Chamber considered the accused’s guilty plea out of principle, it must point out that the accused demonstrated no remorse before it for the crimes he committed.”
39. Plavsic Sentencing Judgement, para. 70; Obrenovic, IT-02-60/2-S, Sentencing Judgement, 10 December 2003, para. 111, Judicial Supplement No. 46.
40. Momir Nikolic Sentencing Judgement, para. 149.
41. Erdemovic, IT-96-22-Tbis, Sentencing Judgement (“Erdemovic 1998 Sentencing Judgement”), 5 March 1998, para. 16.
42. Momir Nikolic Sentencing Judgement, para. 150; Todorovic, IT-95-9/1-S, Sentencing Judgement (“Todorovic Sentencing Judgement”), 31 July 2001, para. 80, Judicial Supplement No. 26.
43. Erdemovic 1998 Sentencing Judgement, para. 16; Todorovic Sentencing Judgement, para. 81.
44. Sentencing Judgement, para. 237.
45. The Trial Chamber attached importance to the Accused’s co-operation with the Prosecution “especially since the information about Susica camp and Vlasenica municipality was [being] heard for the first time before this Tribunal”. It found that, by giving such information, the Accused had contributed and would further contribute to the fact-finding mission of the Tribunal and the future war crimes chambers in his home country (para. 260).
46. ECHR in Frydlender v. France, Application No. 30979/96, § 43, ECHR 2000-VII, and in Vass v. Hungary, Application No. 57966/00 of 25 November 2003; U.S. Supreme Court in Baker v. Wingo, 407 U.S. 514 (1972); BGH, NStZ, 1986, pp. 217-218 (footnote 411 of the Sentencing Judgement).
47. Article 6(1) of the ECHR reads in relevant part: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
48. U.S. Supreme Court in Doggett v. United States (90-0857), 505 U.S. 647 (1992); ECHR in Ferrantelli and Santangelo v. Italy, Application No. 19874/92 of 7 August 1996; BVerfG, BVerfGE 63, 45 (69); BGH, StV, 1992, p. 452 (footnote 412 of the Sentencing Judgement).
49. BVerfG, 2 BvR 153/03, Decision of 25 July 2003, para. 33 at: http://www.bverfg.de (footnote 413 of the Sentencing Judgement).
50. Sentencing Judgement, para. 271.
51. BGH, 1 StR 538/01, Judgement of 21 February 2002, II, 4b, p. 13 at: http://www.bundesgerichtshof.de (footnote 417 of the Sentencing Judgement).
52. Sentencing Judgement, para. 273.
53. The Defence concurred with the sentence proposed by the Prosecution.
54. Sentencing Judgement, para. 281.
55. Ibid., paras. 281-282.