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�1�� Wednesday, 31 October 2007

�2�� [Appeals Judgement]

�3�� [Open session]

�4�� [The appellant entered court]

�5�� --- Upon commencing at 3.30 p.m.

�6�� JUDGE LIU:� Good afternoon, ladies and gentlemen.

�7�� Madam Registrar, may I ask you to call the case, please.

�8�� THE REGISTRAR:� Good afternoon, Your Honours.� This is the case

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

10�� JUDGE LIU:� Thank you very much.

11�� May I ask Mr. Zelenovic if he can hear me and follow the

12�� proceedings through the translation.

13�� THE APPELLANT: [Microphone not activated]

14�� JUDGE LIU:� Thank you.� You may sit down, please.

15�� We now call for appearances.� For the Prosecution, please.

16�� MS. BRADY:� Good afternoon, Your Honours.� Helen Brady appearing

17�� on behalf of the Prosecution, together with Julia Thibord and our case

18�� manager, Mr. Sebastiaan van Hooydonk.

19�� JUDGE LIU:� Thank you, Ms. Brady.

20�� As for the Defence for Mr. Zelenovic, please.

21�� MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours.� I

22�� am Zoran Jovanovic, attorney-at-law, and I appear for Mr. Zelenovic.

23�� Thank you.

24�� JUDGE LIU:� Thank you very much.

25�� As the registrar announced, the case on our agenda today is

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�1�� Prosecutor versus Dragan Zelenovic in accordance with the Scheduling

�2�� Orders issued on the 17th and the 23rd October 2007.� The Appeals Chamber

�3�� will deliver its judgement today.

�4�� Following the practice of the International Tribunal, I will not

�5�� read out the text of the judgement except for the disposition.� Instead, I

�6�� will summarize the issues on appeal and the findings of the Appeals

�7�� Chamber.� This summary is not part of the written judgement, which is the

�8�� only authoritative account on the Appeals Chamber's rulings and the

�9�� reasons.� Copies of the written judgement will be made available to the

10�� parties at the conclusion of this hearing.

11�� This case concerns the events that took place in the Foca

12�� municipality and its surrounding villages from April to October 1992.� At

13�� the time of the events, Mr. Zelenovic was a member of the Dragan Nikolic

14�� unit, a military unit in Foca, which in the beginning of the war was part

15�� of the Bosnian Serb Territorial Defence, and from the summer of 1992

16�� onwards, part of the Bosnian Serb army.� Mr. Zelenovic was a soldier and,

17�� de facto, a military policeman.

18�� The Trial Chamber held that crimes which Mr. Zelenovic has pleaded

19�� guilty to were part of a pattern of sexual assaults that took place over a

20�� period of several months, and in four different locations, and involved

21�� multiple victims.� Mr. Zelenovic took direct part in the sexual abuse of

22�� victims in a number of the detention facilities, including the multiple

23�� rape of victims FWS-75 and FWS-87.� Mr. Zelenovic has been found guilty of

24�� personally committing nine rapes, eight of which were qualified as both

25�� torture and rape.� He has been found guilty of two instances of rape

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�1�� through co-perpetratorship, one of which was qualified as both torture and

�2�� rape, and one instance of torture and rape through aiding and abetting.

�3�� Four of the instances of the sexual abuse were gang rapes, committed

�4� ��together with three or more other perpetrators.� In one of those

�5�� instances, he participated as a aider and abettor in the rape of FWS-75 by

�6�� at least ten soldiers which was so violent that victim lost consciousness.

�7�� He participated as a co-perpetrator in the incident during which the

�8�� victim was threatened with a gun to her head while being sexually abused.

�9�� The Trial Chamber found that the scale of the crimes committed was large

10�� and that Mr. Zelenovic's participation in the crimes was substantial.� On

11�� the 17th January 2007 he pleaded guilty to the crimes he was charged for.

12�� On the same day the Trial Chamber found Zelenovic guilty on all

13�� charges contained in the plea agreement, namely, seven counts of crimes

14�� against humanity, three of which charged torture as provided for by

15�� Article 5(f) of the Statute of the International Tribunal, and four of

16�� which charged rape as provided for by Article 5(g) of the Statute.� The

17�� Prosecution recommended a term of imprisonment within the range of 10 to

18�� 15 years, while the Defence recommended a term within the range of seven

19�� to ten years.� The Trial Chamber sentenced Dragan Zelenovic to a single

20�� sentence of imprisonment of 15 years on the 4th April 2007.

21�� Dragan Zelenovic appealed the trial judgement on the 27th April

22�� 2007 and filed his appeal brief on the 25th May 2007.� In his appeal brief

23�� he brings forward two grounds of appeal and requests the Appeals Chamber

24�� to lower his sentence.� The Prosecution requests the Appeals Chamber to

25�� dismiss both grounds of appeal.� The parties made oral submissions before

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�1�� the Appeals Chamber in the appeals hearing held on the 15th October 2007.

�2�� I will now address in turn the two grounds of appeal brought

�3�� forward by Dragan Zelenovic.� At the end of the hearing, I will read out

�4�� the disposition of the judgement.

�5�� In his first ground of appeal, Dragan Zelenovic argues that the

�6�� Trial Chamber erred by not adequately assessing the mitigating

�7�� circumstances in the sentencing judgement; namely, first, his admission of

�8�� guilt, thus allowing psychological benefit for victims who will not be

�9�� required to give evidence, and second, his cooperation with the Office of

10�� the Prosecutor in general.

11�� In his first sub-ground of appeal, the appellant submits that his

12�� guilty plea, being the first one regarding the massive rapes that occurred

13�� in Foca, is of extraordinary importance and should have been given more

14�� weight by the Trial Chamber.� The appellant also submits that the

15�� Trial Chamber failed to properly assess the expert report on the

16�� psychological benefit for the victims from their non-appearance before the

17�� Court and therefore erred in determining the penalty.

18�� The Appeals Chamber considers that the Trial Chamber reasonably

19�� assessed the importance of the guilty plea, especially when finding that

20�� it constituted one of the main mitigating circumstances.� Moreover, the

21�� Appeals Chamber finds that the reasoning of the Trial Chamber was

22�� consistent with the expert report's conclusions, therefore showing that

23�� the said report was duly considered by the Trial Chamber.� Consequently,

24�� the appellant fails to show that the Trial Chamber erred by giving

25�� insufficient weight to his guilty plea in mitigation of his sentence.

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�1�� This sub-ground of appeal is therefore dismissed.

�2�� In his second sub-ground of appeal, Dragan Zelenovic argues that

�3�� the Trial Chamber erred in its assessment of his cooperation with the

�4�� Prosecution.� The appellant submits that his actual cooperation with the

�5�� Prosecution went beyond the scope of what he was obliged to in the plea

�6�� agreement and that the Trial Chamber erred when it considered his

�7�� cooperation as "initial" rather than "substantial."� Therefore, the

�8�� appellant argues that the Trial Chamber did not give sufficient weight to

�9�� this mitigating circumstance.

10�� The Appeals Chamber finds that the scope of the plea agreement was

11�� not restricted in the manner the appellant suggests.� Thus, the appellant

12�� did not show that his cooperation went beyond the scope of his

13�� obligations.� Moreover, the Appeals Chamber notes that both the

14�� appellant's actual cooperation, as well as his commitment to cooperate,

15�� have been considered by the Trial Chamber as one of the main mitigating

16�� circumstances in this case.� Consequently, the Appeals Chamber finds no

17�� error in the Trial Chamber's assessment of the appellant's cooperation

18�� with the Prosecution.� As a result, Dragan Zelenovic's first ground of

19�� appeal is dismissed.

20�� In his second ground of appeal, Dragan Zelenovic argues that the

21�� Trial Chamber should have taken into account the appeal judgement in the

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

23�� Bosnia and Herzegovina.� The Appeals Chamber notes that Stankovic appeal

24�� judgement was only made public on the 17th April 2007, while the

25�� sentencing judgement in the present case was issued on the 4th April 2007.

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�1�� The appellant therefore failed to substantiate his allegation that the

�2�� Trial Chamber should have learned about the Stankovic appeal judgement

�3�� prior to rendering the sentencing judgement.� As a result,

�4�� Dragan Zelenovic's second ground of appeal is rejected.

�5�� I will now read out the disposition of the appeal judgement.

�6�� Mr. Zelenovic, would you please rise.

�7�� [The appellant stands up]

�8�� JUDGE LIU:� For the foregoing reasons, the Appeals Chamber

�9�� unanimously, pursuant to Article 25 of the Statute and Rules 117 and 118

10�� of the Rules; noting the respective written submissions of the parties and

11�� the oral arguments they presented at the appeal hearing of 15th October

12�� 2007; sitting in open session; dismisses the appellant's grounds of

13�� appeal; affirms the sentence of 15 years' imprisonment as imposed by the

14�� Trial Chamber, subject to credit being given under Rule 101(C) of the

15�� Rules for the time Dragan Zelenovic has already spent in detention since

16�� 22nd August 2005; and orders in accordance with Rule 103(C) and Rule 107

17�� of the Rules that the appellant is to remain in custody of the

18�� International Tribunal pending the finalisation of arrangements for his

19�� transfer to the state in which his sentence will be served.

20�� Mr. Zelenovic, you may sit down now.

21�� [The appellant sits down]

22�� JUDGE LIU:� Ms. Registrar, would you please distribute copies of

23� ��the appeal judgement to the parties, please.

24�� Thank you very much.� This concludes the appellate proceedings in

25�� this case.� The Appeals Chamber will now rise.

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�1�� --- Whereupon the Appeals Judgement

�2�� adjourned at 3.47 p.m.

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