BBC Russian

Page 5

�1�� Monday, 15 October 2007

�2�� [Appeals Hearing]

�3�� [Open session]

�4�� [The appellant entered court]

�5�� --- Upon commencing at 9.59 a.m.

�6�� [Appeals Chamber and legal officer confer]

�7�� JUDGE LIU:� Well, good morning, ladies and gentlemen.

�8�� Mr. Registrar, may I ask you to call the case, please.

�9�� THE REGISTRAR:� Good morning, Your Honours.� This is case number

10�� IT-96-23/2-A, the Prosecutor versus Dragan Zelenovic.

11�� JUDGE LIU:� Thank you very much.

12�� May I ask Mr. Zelenovic if you can hear me and follow the

13�� proceedings in a language you understand through the translation.

14�� THE APPELLANT: [Interpretation] Yes.

15�� JUDGE LIU:� Thank you very much.� You may sit down.� If you have

16�� any problem in following the proceedings, please inform me as soon as

17�� possible.

18� ��Well, we now call for the appearances.

19�� For the Prosecution, please.

20�� MS. BRADY:� Good morning, Your Honours.� Helen Brady appearing on

21�� behalf of the Prosecution together with Julia Thibord and our case

22�� manager, Sebastiaan van Hooydonk.� Thank you.

23�� JUDGE LIU:� Thank you very much.

24�� And for the Defence of Mr. Zelenovic, please.

25�� MR. JOVANOVIC: [Interpretation] Good morning, Your Honours. I'm

Page 6

�1�� Zoran Jovanovic, attorney-at-law.� I'm representing Mr. Zelenovic. Thank

�2�� you.

�3�� JUDGE LIU:� Thank you very much.

�4�� As the registrar just announced, this is an appeal hearing in the

�5�� case of the Prosecutor against Dragan Zelenovic.

�6�� At the outset, I'll briefly summarise the appeal which is pending

�7�� before the Appeals Chamber and the manner in which we'll proceed today.

�8�� The appeal deals with crimes committed in Foca municipality and

�9�� its surrounding villages from April to July 1992.� At the time of the

10�� events, Mr. Zelenovic was a member of the so-called Dragan Nikolic Unit, a

11�� military unit in Foca which in the beginning of the war was part of the

12�� Bosnian Serb Territorial Defence and from the summer of 1992 onwards part

13�� of the Bosnian Serb army.

14�� Mr. Zelenovic was a soldier and a de facto a military policeman.

15�� He pled guilty and has admitted individual criminal responsibility of the

16�� crimes he was charged for.

17�� Dragan Zelenovic appeals from a judgement rendered on the 4th

18�� April, 2007 by Appeal Chamber -- by Trial Chamber I, composed of

19�� Judge Orie, presiding; Judge Van Den Wyngaert; and Judge Moloto.

20�� The Trial Chamber found Mr. Zelenovic guilty on all charges

21�� contained in the plea agreement; namely, seven counts of crimes against

22�� humanity, three of which charged torture as provided for by Article 5(f)

23�� of the Statute and four of which charged rape, as provided for by Article

24�� 5(g) of the Statute.� Dragan Zelenovic was sentenced to a single sentence

25�� of imprisonment of 15 years.

Page 7

�1�� Dragan Zelenovic filed his Notice of Appeal on the 27th April

�2�� 2007, setting out two grounds of appeal.� On the 25th May, 2007, he filed

�3�� his appeals brief, while the Prosecution filed the response brief on 25th

�4�� June 2007.� Zelenovic's reply brief was filed on the 3rd of July, 2007.

�5�� I will now briefly summarise the grounds of appeal.

�6�� Dragan Zelenovic brings two grounds of appeal.� In his first ground of

�7�� appeal, Dragan Zelenovic alleged that the Trial Chamber erred by not

�8�� adequately assessing the mitigating circumstances in the sentencing

�9�� judgement; namely, first, the appellant's admission of guilt which gives

10�� psychological benefit for victims who will not be required to give

11�� evidence; and second, the appellant's cooperation with the Prosecution in

12�� general.

13�� Under his second ground of appeal, Dragan Zelenovic submits that

14�� the Trial Chamber erred by not taking into account the appeal judgement in

15�� the case of Prosecutor versus Radovan Stankovic before the State Court of

16�� Bosnia and Herzegovina.

17�� During this appeal hearing, counsel may argue the grounds of

18�� appeal in order that they consider most suitable for the -- for the

19�� presentation, but I would urge them not just to repeat verbatim or to

20�� extensively summarise what is in the briefs.

21�� I also wish to note that by letter of 8th October 2007, the

22�� Appeals Chamber has invited the parties to address specific issues during

23�� the hearing.� The Appeals Chamber also noticed that the Defence filed a

24�� response in written form to those questions -- to those questions on the

25�� 11th of October, 2007.� The Prosecutor made a reply orally during this

Page 8

�1�� hearing, if the case may be.

�2�� These invitations are made, I want to address, without a prejudice

�3�� to any other matters the parties or the Appeals Chamber may wish to raise

�4�� and in no way constitute an expression of an opinion on the merits of the

�5�� appeals.

�6�� I would now like to briefly recall the appeal is not a trial de

�7�� novo and the appellant must not merely repeat his case from the trial

�8�� level.� Rather, in accordance with Article 25 of the Statute, the

�9�� appellant must limit his arguments to alleged errors of law which

10�� invalidate the decision or allege the error of fact occasioning a

11�� miscarriage of justice.

12�� Additionally, it should be recalled that the appellant has the

13�� obligation to provide the precise references to materials supporting his

14�� arguments on appeal.

15�� During the proceedings, if any party requires private session,

16�� please just inform us.

17�� This hearing will proceed according to the scheduling order issued

18�� on the 20th September 2007.� Counsel for Dragan Zelenovic will present his

19�� submissions for 30 minutes and the Prosecution will present his response,

20�� also for 30 minutes.� Counsel for Dragan Zelenovic will have 15 minutes to

21�� present his reply, and then Mr. Zelenovic, should he wish to address the

22�� Bench, will have 15 minutes to do so.

23�� I wish to remind the parties that Judges may interrupt them at any

24�� time to ask questions or they may prefer to ask questions following each

25�� party's submission.

Page 9

�1�� Having said that, I would now to invite the counsel for

�2�� Dragan Zelenovic to present the submissions in support of his appeal.

�3�� Now, Mr. Jovanovic, you have the floor, please.

�4�� Submissions by Mr. Jovanovic:

�5�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.� Thank you

�6�� for the time allotted to me by the Chamber.� In accordance with the

�7�� scheduling order, the Defence will comply with the instructions of the

�8�� Appeals Chamber and we will not be repeating the claims made in the

�9�� appellate proceedings so far and our appellate brief, so I believe that I

10�� will take less time than was anticipated.

11�� The first ground for appeal by Mr. Zelenovic's Defence has to do

12�� with the fact that with his admission of guilt, Mr. Zelenovic relieved the

13�� victims from the obligation to testify in this case.� The Trial Chamber in

14�� determining his sentence gave weight to this circumstance, but it was in a

15�� general -- generalised manner, the Defence contends, contrary to the

16�� decisions reached by the other Trial Chambers and the jurisprudence of the

17�� Tribunal.

18�� It is quite logical that if a -- if an accused pleads guilty to

19�� the charges, all the witnesses who were slated to testify in that case do

20�� not have to do so.� The Defence believes that in this specific case - and

21�� we do not want to set aside the fact that the sentence must reflect the

22�� gravity of crimes - we contend that this is a category of victims that is

23 ��particularly sensitive and vulnerable.� We would like to remind the

24�� Chamber that the witnesses who were on the witness list for the

25�� Prosecution in this case, that they had already testified in the Kunarac

Page 10

�1�� case, in the Gojko Jankovic case, and in the Radovan Stankovic case that

�2�� was tried before the State Court of Bosnia and Herzegovina. These are rape

�3�� victims.

�4�� In all those cases, witnesses had to undergo examination-in-chief,

�5�� cross-examination, and the Defence in those cases relied on the claim that

�6�� their testimony was not truthful.

�7�� According to the expert report that was attached to the appellate

�8�� brief by the Defence, is a circumstance that re-traumatises those

�9�� witnesses.� They have to relive all those events.� They also have to be

10�� cross-examined by the Defence, and in light of the consequences they

11�� suffer, this is by no means a pleasant experience.� This is why the

12�� Defence believes that these circumstances should be given more weight,

13�� this despite the fact that the Trial Chamber was not under an obligation

14�� to give weight to each particular mitigating circumstance and to -- to

15�� provide the reasoning for giving this weight.

16�� This is a peculiar case.� We're talking about the mass rapes, as

17�� they were qualified, in Foca.� Mr. Dragan Zelenovic is the only person to

18�� plead guilty to those crimes.� The fact that by doing so he spared the

19�� victims and the fact that this means that their testimony so far is

20�� validated by his admission of guilt, this should be given proper weight.

21�� The Trial Chamber actually relied on the jurisprudence of the

22�� Tribunal so far, and that is that all the witnesses in a case where there

23�� was a guilty plea are relieved of the obligation to testify.

24�� The Defence therefore believes that the Trial Chamber erred when

25�� it considered this mitigating circumstance in a generalised manner.� We

Page 11

�1�� believe that the Trial Chamber should have given more weight to the expert

�2�� report attached to the brief, to the sentencing brief provided by the

�3�� Defence after the plea agreement.� And also we believe that in the current

�4�� practice before this Tribunal every time the Trial Chamber took this

�5�� position, that a guilty plea relieves the witnesses from the obligation to

�6�� testify, those Trial Chambers never had before them this kind of expert

�7�� report dealing with this kind of victims, explaining the state of mind of

�8�� the victims of such crimes, after -- even after so many years, and the

�9�� consequences that calling such witnesses to appear before a tribunal to

10�� testify would have for them.

11�� The second aspect that the Defence would like to argue now has to

12�� do with the cooperation by Mr. Dragan Zelenovic with the Office of the

13�� Prosecutor.� The Trial Chamber considered this to be some kind of initial

14�� cooperation, following the reports of the Prosecution and the Defence on

15�� this matter.

16�� Now I would like to ask the Chamber to go into private session for

17�� reasons that are indicated in the reply that the Defence submitted

18�� regarding the confidentiality of a part of the appeal filed by the

19�� Defence.

20�� JUDGE LIU:� Yes.� Any objections?

21�� MS. BRADY:� No, no objection, Your Honour.� Just to state that the

22�� Prosecution would have preferred in the interest of transparency to make

23�� all submissions relating to cooperation public.� However, in light of the

24�� fact that the Prosecution agreed with Mr. Zelenovic during the sentencing

25�� phase, that these discussions would remain confidential, given his wish to

Page 12

�1�� retain the confidentiality, we're not in a position to waive it.� Thank

�2�� you.

�3�� JUDGE LIU:� Thank you very much.

�4�� After hearing of the two parties, we decided to go to the private

�5�� session.

�6�� Now we are in the private session, please.

�7�� [Private session]

�8�� (redacted)

�9�� (redacted)

10�� (redacted)

11�� (redacted)

12�� (redacted)

13�� (redacted)

14�� (redacted)

15�� (redacted)

16�� (redacted)

17�� (redacted)

18�� (redacted)

19�� (redacted)

20�� (redacted)

21�� (redacted)

22�� (redacted)

23�� (redacted)

24�� (redacted)

25�� (redacted)

Page 13

�1�

�2�

�3�

�4�

�5�

�6�

�7�

�8�

�9�

10�

11�� Pages 13-15 redacted. Private session

12�

13�

14�

15�

16�

17�

18�

19�

20�

21�

22�

23�

24�

25�

Page 17

�1�� JUDGE LIU:� Thank you.

�2�� You may proceed, please.

�3�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

�4�� The Trial Chamber invited the parties to comment on the decision

�5�� in the case of the co-accused Radovan Stankovic in the proceedings before

�6�� the State Court of Bosnia-Herzegovina.� The judgement has become final.

�7�� After the trial, the nonfinal judgement became available to the public

�8�� once it was handed down by the Trial Chamber.

�9�� The Defence contends that if the Trial Chamber invited the parties

10�� to comment on the judgement and sentence of the co-accused,

11�� Radovan Stankovic, under the initial indictment before this Tribunal and

12�� if the Trial Chamber considered that such a judgement should be

13�� considered, the Defence feels it was not given due weight, in spite of the

14�� fact that this Tribunal is not bound by the legislation of the countries

15�� of the former Yugoslavia or the jurisprudence before the national courts

16�� in those countries.

17�� The Defence contends that this judgement should be taken into

18�� account in such a manner as to show the differences -- to reflect the

19�� differences in the actions of Dragan Zelenovic compared to others in

20�� connection with the events in Foca.

21�� Mr. Radovan Stankovic has been sentenced to 20 years in prison,

22�� according to the final judgement; whereas, Mr. Zelenovic has been

23�� sentenced to 15 years.� The Defence has already stated the differences in

24�� its brief, and these differences justify the different sentence.

25�� If the proceedings conducted before the State Court of Bosnia and

Page 18

�1�� Herzegovina indicated the significance of Mr. Dragan Zelenovic's guilty

�2�� plea before this Tribunal, this should be taken into account.

�3�� There were numerous problems in the proceedings before the State

�4�� Court of Bosnia-Herzegovina.� Mr. Radovan Stankovic's actions were such as

�5�� to threaten and humiliate the witnesses.� Ultimately, he evaded serving

�6�� his sentence, although he was sentenced to 20 years of prison in Foca,

�7�� where the crimes were committed; however, he escaped.

�8�� Mr. Dragan Zelenovic is the only accused, if we take into

�9�� consideration the proceedings against Kunarac et al., Jankovic, and

10�� Stankovic, he is the only one who actually by his guilty plea confirmed

11�� the events that had taken place there.� And although - I repeat - this

12�� Tribunal is in no way bound by the jurisprudence or the legislation of the

13�� states of the former Yugoslavia, the Defence still feels that in the

14�� interests of justice these facts should be given due weight.� And bearing

15�� in mind that the -- that the sentence must correspond to the gravity of

16�� the crimes, this circumstance and the judgement in the Prosecutor versus

17�� Radovan Stankovic case should throw light on the significance of

18�� Dragan Zelenovic's guilty plea, and this should be taken into account when

19�� meting out the sentence of Mr. Zelenovic.

20�� These are all the reasons put forward by the Defence in its

21�� appeal, which the Defence contends should have an influence on the

22�� sentence.

23�� Let me end by saying something that is well known:� The

24�� Prosecution has challenged the grounds of appeal of the Defence and

25�� considers that the Trial Chamber has given due weight to all the

Page 19

�1�� mitigating circumstances.� Let me, however, remind you that in these

�2�� proceedings, the Prosecution had proposed a sentence of 10 to 15 years in

�3�� prison, so my assumption is that had a lower sentence been handed down,

�4�� the Prosecution would have been in agreement with it.� I suggest therefore

�5�� that the Appeals Chamber take into consideration all these arguments and

�6�� hand down a milder sentence for Dragan Zelenovic.

�7�� Thank you.

�8�� JUDGE LIU:� Thank you very much, Mr. Jovanovic.

�9�� Any questions from the Bench?� I noticed Judge Schomburg.

10�� Judge Schomburg, you may have the floor.

11�� JUDGE SCHOMBURG:� Thank you, Mr. President.

12�� Questioned by the Court:

13�� JUDGE SCHOMBURG:� First of all, a technical question that we can

14�� discuss both here today and later on in the judgement is the Annex to your

15�� submission of 11 October 2007.� I know it's in the public domain because

16�� in -- in the Internet, but it is -- is it your intention to tender these

17�� documents into evidence or you want to ask the Chamber that the Chamber

18�� proprio motu admit -- admits this into evidence?

19�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.� It's an

20�� integral part of the response by the Chamber to the parties.� The Defence

21�� has submitted information confirmed by the Prosecution and it was

22�� handed -- this was -- this letter was handed to the Defence today.� The

23�� date is the 27th of March, before the Trial Chamber's decision was issued,

24�� but it became available to the public in written form on the 17th of

25�� April.� So the Defence used the information it had when answering Your

Page 20

�1�� Honours' questions.� The Defence feels that the Chamber could proprio motu

�2�� adopt this information and enter it into the evidence.

�3�� JUDGE SCHOMBURG:� Okay.� Thank you.

�4�� Then there's the first follow-up question:� You submit that the

�5�� Trial Chamber erred when handing down the judgement.� What would you have

�6�� expected from the Trial Chamber?� In particular, with a view to the

�7�� mandatory expeditiousness of hearing a criminal case, should the Trial

�8�� Chamber have waited until the appeal judgement was rendered, as we know

�9�� now, the 17th of April, 2007?

10�� MR. JOVANOVIC: [Interpretation] No, Your Honours, absolutely not.

11�� It need not have waited.� It shouldn't have waited.� The Defence in its

12�� submission on the sentencing did not put forward any position on this.� It

13�� is the Prosecution that raised the issue of the judgement not being final;

14�� however, the Chamber asked the parties to express their views on this.

15�� The first instance judgement handed down a sentence of 15 years to

16�� Mr. Stankovic.� He was found guilty.� And the Defence felt at the time

17�� that the charges were far graver than the ones defined in the agreement

18�� between the Prosecution and the Defence, but the Chamber did not take this

19�� judgement into account, saying that it was not final. The moment it became

20�� final, the Defence put forward its position in connection with this

21�� judgement.

22�� JUDGE SCHOMBURG:� Thank you.� You brought me to the final

23�� question.� I am in para 11 of the Trial Chamber judgement.� It reads that

24�� "As regards the plea agreement" -- and I quote:� "In response to a

25�� question by the Trial Chamber, the Prosecution explained that the

Page 21

�1�� exclusion of certain victims referred to in the indictment from the plea

�2�� agreement was based on a consideration of the available evidence."

�3�� Can I take it from this that the cooperation in the plea agreement

�4�� as such was limited to that -- to those crimes of rape and torture which

�5�� were more or less undisputable because Mr. Kunarac inter alia is already

�6�� finally convicted and would always be available as a witness against your

�7�� client?� So what indeed was your contribution to this plea agreement?� Is

�8�� it correct as it is reflected in the judgement that only when there was

�9�� available evidence your client admitted his guilt?

10�� MR. JOVANOVIC: [Interpretation] Your Honour, talks with the

11�� Prosecution began very soon after Dragan Zelenovic was transferred to The

12�� Hague from Sarajevo.� The Russian Federation, where Mr. Dragan Zelenovic

13�� was arrested and detained, extradited Mr. Zelenovic to Sarajevo, not

14�� directly to The Hague, in spite of the fact that there was an indictment

15�� before this Tribunal.� And Sarajevo transferred him to The Hague.� And in

16�� spite of the 11 bis motion, the Defence very soon started talking to the

17�� Prosecution and achieved an agreement with the Prosecution, regardless of

18�� the possible referral of this case under Rule 11 bis to Sarajevo,

19�� regardless of the venue where the proceedings might have been held or the

20�� evidence that might have been adduced, a plea agreement was reached

21�� between the Defence and the Prosecution.

22�� JUDGE SCHOMBURG:� I'm awfully sorry, but you didn't answer my

23�� question.� My question was that -- is it correct when I read the Trial

24�� Chamber judgement to that end that only those acts of torture and acts of

25�� rape included in the first indictment formed part of the plea agreement

Page 22

�1�� because it was based on a -- as it reads here, "on a consideration of the

�2�� available evidence"?� So that, to put it very directly to you, but all

�3�� that was already proven in prior cases, there was an admission of

�4�� evidence, however not where additional witnesses would have been -- would

�5�� have to be heard.

�6�� MR. JOVANOVIC: [Interpretation] Your Honours, Mr. Dragan Zelenovic

�7�� admitted what he did.� I do not know whether the Prosecution would have

�8�� adduced any additional evidence to the evidence produced in the Kunarac et

�9�� al. case or whether there was additional evidence which might have been

10�� adduced before the court in Sarajevo had the 11 bis motion been granted,

11�� but Mr. Zelenovic admitted everything he had been charged with, regardless

12�� of what facts had been established in the Kunarac et al. case and

13�� regardless of whether in the proceedings against Dragan Zelenovic the

14�� Prosecution might have adduced additional evidence, further evidence.

15�� He admitted what he did, and he spoke about everything he knew.

16�� And finally, the Trial Chamber found his admission of guilt to be sincere.

17�� And not just an act of calculating what evidence had been proved and what

18�� facts were known.

19�� JUDGE SCHOMBURG:� Thank you.

20�� JUDGE LIU:� Thank you, Judge Schomburg.

21�� I see no other questions from the Bench.� Thank you,

22�� Mr. Jovanovic.� You may sit down, please.

23�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.

24�� JUDGE LIU:� Now we would like to turn to the Prosecution.

25�� Ms. Brady, you have the floor, please.

Page 23

�1�� Response by Ms. Brady:

�2�� MS. BRADY:� Thank you, Your Honours.� I'm just doing a bit of

�3�� housekeeping here.

�4�� Mr. Zelenovic committed or was complicit in over 30 rapes.� He

�5�� admitted these crimes.� He was convicted for these crimes.� And he was

�6�� sentenced to 15 years.� He now comes to this court and he asks you to

�7�� reduce it, claiming that the Trial Chamber gave insufficient weight to

�8�� two mitigating factors:� His plea - in particular, the beneficial effect

�9�� on relieving his rape victims from testifying - and his cooperation with

10�� the Prosecution.

11�� In effect, Your Honours, he's asking this Chamber to re-weigh to

12�� his benefit these two mitigating factors which the Trial Chamber already

13�� considered.� Since the appellant has not shown that the Trial Chamber

14�� abused its discretion by giving insufficient weight to either factor, his

15�� argument should be dismissed.

16�� In all the circumstances, it cannot be said that a 15-year

17�� sentence was excessive.

18�� I'll turn first, if I may, to his -- the first sub-error in his

19�� first ground, relating to the guilty plea and the benefit in relieving the

20�� victims from testifying.

21�� The Trial Chamber expressly stated that it gave considerable

22�� weight to Mr. Zelenovic's guilty plea.� We see this in paragraphs 68 and

23�� 46 of the judgement.� And it expressly acknowledged that one reason for

24�� doing this was the beneficial effect in relieving the victims from

25�� testifying, and this was especially bearing in mind the crimes that they

Page 24

�1�� endured.� It wasn't, as he submits, in a generalised manner at all.

�2�� And I remind Your Honours of paragraphs -- of paragraph 49, where

�3�� the Trial Chamber recognised that.� And I quote from the judgement:� "In

�4�� cases such as the present, involving serious crimes, such as torture and

�5�� rape, with severe consequences for the victims, a guilty plea is likely to

�6�� save the victims from reliving the trauma through testifying about the

�7�� crimes committed against them."

�8�� And it was correct in doing this.� We agree for the reasons that

�9�� Mr. Jovanovic has put forward about rape victims being particularly

10�� sensitive and the re-traumatisation they may go through by testifying

11�� about these matters and we can agree that this was indeed the first plea

12�� of its kind in the Foca area.� But to give this factor heightened weight

13�� because of the particularly humiliating or traumatising nature of the

14�� crimes he committed against the victims, as he urges, would run counter to

15�� the fundamental sentencing principle that the gravity of the crime should

16�� be the principal consideration in determining its sentence.

17�� In other words, a guilty plea cannot get more weight because it

18�� admits worse crimes.

19�� The fact remains that Mr. Zelenovic is responsible for a litany of

20�� very serious crimes.� Mr. Zelenovic raped women and girls on a serial

21�� basis.� He raped some women multiple times and in multiple ways.� He

22�� participated in gang-rapes of some of his victims.� His criminal conduct

23�� lasted a period of months.� He would select his victims from an already

24�� vulnerable group of young women and girls imprisoned in detention centres.

25�� He and his fellow soldiers would remove them from these centres and take

Page 25

�1�� them to other places where they would rape them.

�2�� Mr. Zelenovic personally raped one victim or assisted other men to

�3�� do so on eight separate occasions.� And this girl was 15 years old at the

�4�� time.� Twice he gang-raped her with three other soldiers.� On one occasion

�5�� a soldier putting a gun to her head.� And he raped another victim three

�6�� times; once in a gang-rape with three other soldiers and on another

�7�� occasion aiding and abetting 10 other men to do so.

�8�� In light of the inherent gravity of his crimes, the trauma of

�9�� repeated and multiple rapes which his victims experienced, it cannot be

10�� said that the Trial Chamber discernibly erred by sentencing him to 15

11�� years.� And we ask you to dismiss this first sub-ground of his -- this

12�� first sub-error within his first ground.

13�� If I may, Your Honours, now turn to his second sub-error in his

14�� first sub-ground -- in his first ground, relating to his cooperation with

15�� the Prosecution.� And as I said before, while we would have preferred to

16�� make all these submissions in open court in public, because of the

17�� agreement that was given to Mr. Zelenovic during discussions, we are bound

18�� by that promise and hence I must go into private session now.

19�� JUDGE LIU:� Yes.� Shall we go to the private session.

20�� MS. BRADY:� Oh, excuse me, Your Honours.� Before -- before we go

21�� into private session, I would just like to reiterate our position on this

22�� ground.

23�� The appellant has not shown that the Trial Chamber gave

24�� insufficient weight to his cooperation.� It's clear that, if you look at

25�� paragraph 52, that the Trial Chamber already considered and weighed, as it

Page 26

�1�� was bound to do, both aspects of his cooperation:� The actual cooperation

�2�� he had provided, he had given to the Prosecution, which the Prosecution --

�3�� which the Trial Chamber called "some initial cooperation"; as well as his

�4�� willingness or commitment to cooperate. And in the latter factor, the

�5�� Trial Chamber called his willingness or commitment to cooperate together

�6�� with the plea the main mitigating factors in the case.� That's at

�7�� paragraph 56.

�8�� Since he's failed to show the Trial Chamber discernibly erred in

�9�� that evaluation, we ask you to dismiss this ground.

10�� And now, Your Honours, if I may continue in private session.

11�� JUDGE LIU:� Yes.� Shall we go to the private session.

12�� [Private session]

13�� (redacted)

14�� (redacted)

15�� (redacted)

16�� (redacted)

17�� (redacted)

18�� (redacted)

19�� (redacted)

20�� (redacted)

21�� (redacted)

22�� (redacted)

23�� (redacted)

24�� (redacted)

25�� (redacted)

Page 27

�1�

�2�

�3�

�4�

�5�

�6�

�7�

�8�

�9�

10�

11�� Pages 27-29 redacted. Private session

12�

13�

14�

15�

16�

17�

18�

19�

21�

22�

23�

24�

25�

Page 31

�1�� THE REGISTRAR:� We're in open session, Your Honours.

�2�� JUDGE LIU:� Thank you.

�3�� You may proceed, Ms. Brady.

�4�� MS. BRADY:� Thank you, Your Honours.

�5�� I've now finished responding to both sub-grounds of his first

�6�� ground of appeal, and now Ms. Thibord will address you on his final

�7�� sub-ground, relating to the Stankovic judgment of the Bosnian State Court.

�8�� Thank you.

�9�� JUDGE LIU:� Thank you.

10�� MS. THIBORD:� [Microphone not activated]

11�� THE REGISTRAR:� Microphone.

12�� MS. THIBORD:� Good morning, Your Honours.� I will now address the

13�� second ground of appeal, which concerns the sentence imposed by the Court

14�� of BiH upon Radovan Stankovic.

15�� As already said in answer to your second question, we agree with

16�� Mr. Jovanovic.� The sentence was not made public until the 17th of April.

17�� Now, Zelenovic compares his sentence with Stankovic, but he fails

18�� to show that the Trial Chamber gave him an unfair or manifestly excessive

19�� sentence.� As submitted in our response brief at paragraph 30 to 32, the

20�� crimes of Zelenovic and Stankovic were in both cases very serious.� In

21�� both cases, the victims were brutally and repeatedly raped.� Given

22�� similarities in the facts and given the suffering of the victims in both

23�� cases, it's hard and somehow inappropriate to determine which crimes are

24�� graver.

25�� Now, if we take into account Zelenovic's guilty plea, he did

Page 32

�1�� receive a sentence which is five years lower than Stankovic.� There is no

�2�� manifest disparity.� However, such comparison is not relevant.

�3�� The Tribunal should not consider sentences rendered by domestic

�4�� courts, even in the event of a Rule 11 bis transfer.

�5�� The case law is clear.� And I refer Your Honours to the Jelisic

�6�� appeal judgement at paragraph 114 and to the Dragan Nikolic appeal

�7�� judgement at paragraph 85.� According to this, Article 24(1) of the

�8�� Statute requires to take into account the sentencing practice in the

�9�� former Yugoslavia at the time of commission of the crimes.

10�� In return, sentences rendered by domestic courts afterwards should

11�� not be taken into account, and this for three main reasons:� First, a

12�� Trial Chamber when determining a sentence is bound to apply the law of

13�� this Tribunal.� Domestic courts, on the other hand, decide sentences on

14�� the basis of their own laws.� When an accused is transferred to a domestic

15�� court, he's no longer subject to the law of this Tribunal, but this

16�� Tribunal remains bound to apply its own law to those tried and sentenced

17�� here.

18�� Therefore, it cannot and it should not consider sentences rendered

19�� under a different law, and it certainly should not modify a sentence on

20�� that ground.

21�� In fact - and that's my second point - that would undermine the

22�� primacy of this Tribunal.� And in this respect, I refer Your Honours to

23�� the reasoning of the Appeals Chamber in the Dragan Nikolic judgement at

24�� paragraph 84.� Decreasing, or for that matter increasing a sentence based

25�� on a sentence issued by a domestic court would set a dangerous precedent,

Page 33

�1�� because domestic courts could then unduly influence the sentencing

�2�� practice of this Tribunal.

�3�� And, third, the Tribunal, and this Chamber in particular, has to

�4�� ensure consistency among sentences with this Tribunal and it cannot do so

�5�� if it starts looking into sentences rendered by domestic courts outside

�6�� this Tribunal and over which the Appeals Chamber has no jurisdiction or

�7�� control.� And for all these reasons, this ground of appeal must also be

�8�� dismissed.

�9�� We ask Your Honours to uphold the Trial Chamber's sentence of 15

10 ��years.

11�� This concludes our submissions, and I'm happy to answer any

12�� questions Your Honours may have.

13�� JUDGE LIU:� Thank you very much.

14�� Yes, Judge Schomburg.

15�� Questioned by the Court:

16�� JUDGE SCHOMBURG:� Sorry that I have to address also to you the

17�� same questions or similar -- a similar question as I put to Defence

18�� counsel.

19�� Is it true that Mr. Zelenovic did not agree to plea guilty to the

20�� indictment in its entirety?

21�� MS. THIBORD:� If Your Honours -- if you'll allow, Ms. Brady will

22�� answer this question.

23�� MS. BRADY:� It may be easier if I answer that, Your Honours.

24�� It is true that he did not agree to plead guilty to the entirety

25�� of the indictment.� Having said that, some of the indictment referred to

Page 34

�1�� crimes which he was not a participant in.� And in other cases, the

�2�� Prosecution made a -- a judgement call on selecting those crimes that he

�3�� was involved in which would best reflect the entirety, the totality of the

�4�� offences that he committed.� And for some of those reasons, it may have

�5�� been because the evidence was not sufficient or the Prosecution did not

�6�� believe that the evidence would come up to proof and a variety of other

�7�� reasons.� But at the end of the day, the Prosecution agreed with

�8�� Mr. Zelenovic that these counts reflecting these crimes would be the best

�9�� reflection of the totality of his criminal conduct.

10�� JUDGE SCHOMBURG:� Agreed.� However, it reads in para 11 that "A

11�� consideration of all available evidence was a basis for the streamlining

12�� of the indictment."

13�� Can I understand it in this way, that only those charges where the

14�� accused voluntarily based confronted with available evidence accepted this

15�� plea arrangement that he already had the advantage in the plea bargaining

16�� stage?� That is, was more or less already part of a deal?� Because no

17�� doubt, he's presumed innocent.� But was there any case at all where there

18�� was no evidence available, however he pleaded guilty?

19�� MS. BRADY:� Your Honour, I wasn't part of the discussions, but to

20�� the best of my knowledge, I do not believe that that was the case.

21�� JUDGE SCHOMBURG:� Thank you.

22�� JUDGE LIU:� Well, I have a question to ask Ms. Brady concerning

23�� with the paragraph 52 of the judgement of the Trial Chamber on this case.

24�� As you know, the cooperation with the Prosecution is a condition

25�� specifically laid down in the Rules for the plea agreement. I just want to

Page 35

�1�� know what is your criteria to judge whether there's a substantive

�2�� cooperation on the part of the Defence, whether the willingness or

�3�� commitment expressed by the Defence is enough or you would like to see

�4�� some, you know, let me say, the concrete results from this cooperation.

�5�� MS. BRADY:� Your Honour, the Prosecution does take into account

�6�� the use, the ultimate effect of the information, but this is by no means

�7�� the only consideration which is given when the Prosecution makes its

�8�� determination as to whether cooperation is, in its view, substantial.

�9�� The Prosecution examines or looks at whether the information was

10�� verifiable, whether it was novel, whether it was reliable, whether it was

11�� credible, was it information simply gained through open sources, all of

12�� these factors, and makes an evaluation based on that, and it includes, of

13�� course, the use, the effect ultimately which is given, whether it was in

14�� fact of assistance, but that is by no means the only criteria which guides

15�� the Prosecution in its assessment.

16�� The second point I'd make is this:� That there are two aspects to

17�� an offender's cooperation for which he should receive credit, and that's

18�� what the Trial Chamber did.� The first aspect is the -- what you could say

19�� is the actual content of what is provided.� And on that limb, one

20�� important aspect will be the use which is made of the information.� But

21�� the second component - and this is where, in our submission, the appellant

22�� got full credit - the second component is his willingness or his

23�� earnestness.� This means that even if a accused because of his low

24�� position or because he only knows a certain amount of -- of things, if

25�� he -- if he gives the -- that information to the best of his ability,

Page 40

�1�� must be reflected in the sentence.� It merely emphasised the peculiar

�2�� character of the witness -- witnesses and victims in this crime.

�3�� So regardless of whether a person is a victim of a graver or

�4�� less-grave crime - and this Tribunal is always dealing with the gravest

�5�� crimes - I'm not talking about the gravity of crime but the category of

�6�� victims that find it really hard to be called time and time again to

�7�� testify before such Tribunals.

�8�� The Defence submitted an expert report to corroborate those

�9�� claims.� We're now talking about a difficult category of victim.� We're

10�� not talking about people who were beaten up or were victims of other war

11�� crimes.� So this is the only sense in which the Defence wanted to bring

12�� forward the fact that the category of these victims is what sets them

13�� aside, not the gravity of the crime.� We never questioned the gravity of

14�� the crime.

15�� As regards the judgement of the State Court of Bosnia and

16�� Herzegovina in the Radovan Stankovic case, the Defence has always been

17�� stressing, including today at this hearing, that the Tribunal was not

18�� bound to take into account any decisions of national courts, but the

19�� Defence stressed that its emphasis -- that the reason why we brought

20�� forward this judgement was because we were invited to do so by the Trial

21�� Chamber.� Both parties were invited by the Trial Chamber to present their

22�� positions on this, and we were acting in accordance with this request.

23�� Secondly, let me just note that in deciding whether a judgement

24�� that was imposed on a co-accused tried before the State Court of Bosnia

25�� and Herzegovina, the fact that this is a court to which this Tribunal

Page 41

�1�� refers its cases, in accordance with the Rule 11 bis, means that this

�2�� Tribunal considers that court to be the kind of court that can be trusted.

�3�� And in this light, the jurisprudence of that court should be taken into

�4�� account in this specific case, the case of the Prosecutor against

�5�� Dragan Zelenovic.

�6�� Thank you.

�7�� JUDGE LIU:� Thank you.

�8�� [Appeal Chamber confers]

�9�� JUDGE LIU:� Judge Guney, please.

10�� (redacted)

11�� (redacted)

12�� (redacted)

13�� (redacted)

14�� (redacted)

15�� (redacted)

16�� JUDGE LIU:� Yes.� Shall we go to the private session, please.

17�� [Private session]

18�� (redacted)

19�� (redacted)

20�� (redacted)

21�� (redacted)

22�� (redacted)

23�� (redacted)

24�� (redacted)

25�� (redacted)

Page 42

�1�

�2�

�3�

�4�

�5�

�6�

�7�

�8�

�9�

10�

11�� Pages 42-45 redacted. Private session

12�

13�

14�

15�

16�

17�

18�

19�

20�

21�

22�

23�

24�

25�

Page 46

�1�� (redacted)

�2�� (redacted)

�3�� (redacted)

�4�� (redacted)

�5�� [Open session]

�6�� THE REGISTRAR:� We are in open session, Your Honours.

�7�� JUDGE SCHOMBURG: �Mr. Jovanovic, I only wish to put one question

�8�� to you.� I take it that it's an agreed fact that the Stankovic judgement

�9�� was available only on 17 April 2007; whereas, the judgement in this case,

10�� the sentencing judgement, was rendered on 4 April 2007, and you

11�� acknowledged that you would not have expected that the Trial Chamber would

12�� have waited until the appeal judgement would be issued.� Thus, I can't see

13�� in your submission directing us to any alleged error committed by the

14�� Trial Chamber.

15�� In the interest of justice, I may ask you:� Do you uphold with the

16�� view to these facts and your own submission the second ground of appeal,

17�� or would you be prepared in order to focus on the main issues of your

18�� appeal to withdraw the second ground of appeal?

19�� MR. JOVANOVIC: [Interpretation] Your Honours, as I indicated, the

20�� Trial Chamber invited the parties to provide their comments on the

21�� judgement of the State Court in the Radovan Stankovic case.� The same

22�� position that was taken by the Defence in the appellate brief was that

23�� this was relevant for the Trial Chamber, not only for the Appeals Chamber.

24�� And we believe that the Defence -- that because the Trial Chamber had

25�� invited the parties to do so, it should have taken into account the

Page 47

�1�� findings in the first instance judgement in the Radovan Stankovic case.

�2�� But we believed that the reason why the Trial Chamber did not do so at the

�3�� time was because the first instance judgement in that case was not final

�4�� at that time.

�5�� Of course, the first instance judgement was even more favourable

�6�� for the Defence in light of the sentence that was imposed by the State

�7�� Court on Radovan Stankovic in determining the sentence for Mr. Zelenovic.

�8�� The Defence believed that the first instance judgement -- that the

�9�� Appeals Chamber, when it modified the sentence that was imposed by the

10�� first instance court, in fact retained the same -- the same arguments and

11�� that supports the argument proffered by the Defence that Mr. Zelenovic

12�� received a much too severe sentence, if you look at the arguments and the

13�� sentence that were imposed by the State Court of Bosnia and Herzegovina.

14�� The Defence gives weight to this ground, but it did so only after

15�� the Trial Chamber asked the parties to present their arguments on this

16�� judgement.� But the main ground for appeal remains the benefit that

17�� accrued to the victims because of his -- Mr. Zelenovic's guilty plea and

18�� his cooperation with the Prosecution.

19�� JUDGE SCHOMBURG:� This exactly was my question, that we, the

20�� Appeals Chamber, can focus on the merits of this.� And, again, you have

21�� not - correct me if I'm wrong - pointed to any error committed by the

22�� Trial Chamber, because the judgement in the Stankovic case was not yet

23�� available at that time.

24�� Thank you.� So therefore it was my invitation whether it wouldn't

25�� be in favour and in the interest of justice to withdraw the second ground

Page 48

�1�� of appeal.� This was my question.

�2�� JUDGE LIU:� Thank you, Judge Schomburg.

�3�� Yes.� Yes, Judge Shahabuddeen, you have the floor, please.

�4�� JUDGE SHAHABUDDEEN:� Mr. Jovanovic, this Appeals Chamber, as you

�5�� well know, operates on the basis that it would try to determine, one,

�6�� whether there are errors of fact in the Trial Chamber's decision and, two,

�7�� whether there are errors of law.

�8�� Now, we leave aside errors of fact.� I want to invite you to

�9�� concentrate on errors of law.� Is there, in your mind, an error of law

10�� which the Trial Chamber committed?� If so, what is that error?

11�� MR. JOVANOVIC: [Interpretation] Your Honour, the Trial Chamber

12�� weighed the mitigating circumstances, and in the view of the Defence,

13�� there was an error of law committed because circumstances which should

14�� have been considered to be mitigating circumstances were not given

15�� sufficient weight.� The mitigating circumstances enumerated in the

16�� appellant's brief should have been given greater weight.� The Defence has

17�� described these mitigating circumstances.

18�� The Trial Chamber did not reject them as mitigating circumstances,

19�� but incorrectly assessed the weight of these circumstances.� In spite of

20�� the fact that the Trial Chamber is not bound to attach weight to each and

21�� every mitigating circumstance, in the view of the Defence, these

22�� mitigating circumstances are of such important -- importance that they

23�� should have been given due weight and taken into account in the course of

24�� sentencing.

25�� JUDGE SHAHABUDDEEN:� Thank you, Mr. Jovanovic.� That's very

Page 49

�1�� helpful.

�2�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

�3�� JUDGE LIU:� Thank you very much, Mr. Jovanovic.� You may sit down.

�4�� Now by came to the last part of the proceeding; that is,

�5�� Mr. Dragan Zelenovic, should he wish to address the Bench, he will have 15

�6�� minutes to do so.

�7�� Mr. Zelenovic, you have the floor.

�8�� [The appellant stands up]

�9�� THE APPELLANT: [Interpretation] Yes, Your Honour.

10�� By admitting my guilt, I must say I admitted it consciously and

11�� without any pressure.� From the first day when I arrived in Sarajevo, I

12�� knew I was on my way to The Hague.� I was told, "Plead not guilty and you

13�� will be referred to Sarajevo and you will serve your sentence there, like

14�� Radovan Stankovic."� I spoke to my lawyer and I said, "No, I want to

15�� confess my guilt."� I am in a poor state of health, and I would have spent

16�� a large part of my sentence in hospital.� And you can see how Stankovic

17�� managed to escape in this way.� He got into a car and fled on his way to

18�� hospital.

19�� But I am the only one from Foca who confessed to his guilt, and I

20�� believe, Your Honours, that my remorse for what I have done will help the

21�� victims to recover and it will reduce their suffering.� I also hoped that

22�� my cooperation with this Tribunal would assist the Tribunal in its work

23�� and lead to -- or rather, contribute to reconciliation in Bosnia.

24�� That's all I have to say.� Thank you very much, Your Honours.

25�� JUDGE LIU:� Thank you, Mr. Zelenovic.

Page 50

�1�� Well, I believe that this is all for this morning's proceedings.

�2�� And the Bench will withdraw for the deliberation of this case.

�3�� The judgement will be delivered in due time upon further

�4�� announcement by the Appeals Chamber.� The Bench would like to thank both

�5�� parties for their presentation this morning, and our thanks also go to the

�6�� interpreters, court reporters, and all those working to make these

�7�� proceedings possible.

�8�� The hearing is adjourned.

�9�� --- Whereupon the Appeals Hearing adjourned

10�� at 11.43 a.m.