⁴³¹

Thursday, 6 November 2003

[Sentencing Proceedings]

(Open session)

[The accused entered court]

--- Upon commencing at 9.09 a.m.

JUDGE SCHOMBURG: A very good morning to everybody. May I ask Madam Registrar, please, to call the case.

THE REGISTRAR: Good morning, Your Honours. Case number IT-94-2-S, the Prosecutor versus Dragan Nikolic.

JUDGE SCHOMBURG: Thank you. And today's appearances, for the Prosecution.

MS. SELLERS: Good morning, Your Honour. I'm Patricia Sellers for the Prosecution. Mr. Upawansa Yapa will be joining us shortly. Mr. William Smith, trial attorney for the Prosecution, and Diane Boles, our case manager.

JUDGE SCHOMBURG: Thank you. And for the Defence?

MR. MORRISON: Howard Morrison and Tanja Radosavljevic for the defendant, Dragan Nikolic.

JUDGE SCHOMBURG: Thank you. And, as usual, may I ask Mr. Nikolic himself, can you follow the proceedings in a language you understand?

THE ACCUSED: [Interpretation] Yes, I can.

JUDGE SCHOMBURG: Thank you. Let's go then media in res, and may I ask the Defence to continue with the interrupted testimony of Dr. Grosselfinger. ⁴³²

[The witness entered court]

JUDGE SCHOMBURG: Good morning, Dr. Grosselfinger.

THE WITNESS: Good morning.

MR. MORRISON: Your Honour, I am not entirely sure whether the Prosecution had their opportunity to ask Dr. Grosselfinger all the questions they wished to do so. So may I make that inquiry first.

[Prosecution counsel confer]

JUDGE SCHOMBURG: Just for the record, good morning, Mr. Yapa.

MR. YAPA: Good morning to Your Honours. As far as I remember, I concluded my questions on the last day.

WITNESS: NANCY GROSSELFINGER [Resumed]

MR. MORRISON: Well, I'm grateful for that. Questioned by Mr. Morrison:

Q. Dr. Grosselfinger, yesterday I handed to you three questions concerning the testimony or the record that you gave. The first of those questions was this: Did you consult any particular empirical studies in the preparation of your report? If so, which? Can you assist me on that, please.

A. Yes. Generally, I have tried to keep myself familiar with a great body of criminological literature, which deals in particular with the relationship between perpetrators and victims. And that was one of the areas that I kept most closely.

And one of the studies that I actually had mentioned in the course of my dealings with personnel at the Tribunal was a study prepared by Professor Eric Stover of the University of California, Berkeley, and was ⁴³³ part of a larger project but he did particular a separate study on the witness here at the ICTY. And it was an empirical study. It was released in May of 2003, came into my hands, I would say, in August or September, and that is a piece of empirical research which I did make reference to in the course of my conversations.

Q. Can you give us - and I appreciate this is always a difficult task - the most concise of summaries of Professor Stover's studies?

A. Well, one of the things he focussed on was the satisfaction level of the victim with their treatment here at the Tribunal in various dimensions, satisfaction in terms of finding themselves able to give testimony, finding themselves called to give testimony at all, actually being brought into the courtroom to give testimony, and follow-up of the case subsequent to their giving testimony. And while there was much satisfaction, there was not complete satisfaction, and there were persons who felt that there could or should be either more comprehensive use of their knowledge of the situation or other means for them to participate or divest themselves, make themselves more whole.

Q. All right.

A. And that was -- that was one of the most -- for me the most striking concerns.

Q. If I understand that correctly, there are then some detainees who feel that the knowledge which they have should be shared with the Tribunal; is that putting it too simplistically?

A. I'm not sure that they were looking necessarily for the detainees to be more forthcoming. It was mentioned, but I think more they were ⁴³⁴ looking for means for their own self-expression, which may have been partially satisfied by a response or commentary from the detainee or knowledge that the detainee held.

Q. The second question I posed was this in writing: How substantial was the discussion with Mr. Liam McDowal^ - that's page 8 of your report - was any programme or literature discussed or consulted?

A. My recollection is that I spoke with Mr. McDowal on a Thursday morning -- a Wednesday or a Thursday in the second week of my preparation of the report, so I think that would have been around about October 17th or -- 16th/17th, something in that range.

I approached him through the Registry. I got his number from the Registry, and therefore I assumed that the Registry may have forewarned him of my calling. His almost first statement of me was I will be going on leave at the end of today or today. I offered immediately to strike an appointment with him, come over immediately to the Tribunal. He said, "No, that wouldn't be necessary. Perhaps we could speak on the phone." And in the end, I think our conversation was approximately 15 minutes at maximum. The content of which was to give him an overview of some possible programmes that might exist in the community at this point in the -- in the community in which the offence took place or that might be constructed in order to satisfy the Tribunal's needs for a victims group in that particular community, to the extent that it has cases there. We did not discuss literature.

Q. No. I simply -- I asked that question just in case there was anything that had been reduced into writing that would assist the Trial ⁴³⁵ Chamber in such programmes.

I may come back to that later, the -- the actual concept of Mr. McDowal and his responsibilities.

And the last question I posed in writing is this: Mention is made of consultation with Mr. McFadden of the UNDC, page 9. Was there any literature referred to by way of internal notes or reports, or was it all oral?

A. It was all oral. I called Mr. McFadden on two occasions. On both occasions, I offered and asked to meet with him. The first occasion was when I first received the order to carry out the study, I called him almost first or second to inform him that I would need to see the accused. And it was news to him. I at that time asked to speak with him and -- about the accused in particular. And as the report indicates, that he didn't feel that was necessary.

Subsequently, I spoke with him again at the time of presentation or contemplation of reading the medical record and the need for access. And again I offered to speak with him. He said he didn't think that would be necessary. He had just that day received an order from the Court to prepare his traditional report and that he would be filing his remarks inside of that report.

Q. Well, as it happens, that's a report that hasn't yet made its way to the Defence, but we can deal with that later.

I notice from your curriculum vitae -- which if I may say, is an extremely impressive record of academic and practical achievement -- that from 1972 -- 1967, indeed, to 1977, some ten years, you were involved in ⁴³⁶ effect as a probation and parole officer directly dealing with offenders; is that correct?

A. Yes, sir.

Q. As a backward to that direct involvement with defenders, you already had completed your degree in sociology.

A. Yes.

Q. I think that's correct. You are therefore, is it fair to say, well used to doing the sort of study, in terms of face-to-face confrontation with offenders, that you did with the defendant in this case?

A. I had -- at that time, I had a fair amount of experience, yes.

Q. It's -- it may be a comment rather than a question, but it -- ten years seems quite a lot of experience to me. Were you drawing on the experience that you had then when you interviewed Mr. Nikolic?

A. Yes. In part.

Q. In part. You're here as an expert. Do you feel in yourself that you have come to the stage where you can make a valid assessment when you're speaking to somebody, whether or not they are being open and truthful with you?

A. I think I have a pretty good sense of it. I can't be sure that I'm not being given the slip.

Yes, well, that's probably true of all of us, but we don't all have your experience. But with your experience, you say you have a pretty good sense of it. Did you have a pretty good sense of it with Mr. ⁴³⁷ Nikolic?

A. Yeah, I did.

Q. That he was being open and truthful with you?

A. Yes, I did.

Q. Now, turning to your report, in its actual detail, we know that Mr. Nikolic has pleaded in full, the actual plea, it took approximately an hour of court time when he entered his pleas to the indictment in full. And I think he effectively did the same for you. Is that correct?

A. Yes. I -- I believe that I went through it fairly thoroughly, largely because I was looking to see if he would retract or equivocate or sometimes even some accused tell you, "My lawyer told me to do it." So I wanted to see if he was -- it was coming from him, rather than some other motivation.

Q. On the first page of your report, about -- under the general heading of "Executive Summary," almost exactly halfway down you start a paragraph, "Mr. Nikolic expressed his personal responsibility for these behaviours."

A. Yes, I see it.

Q. You go on to say: "He expressed remorse and regret in each case of an individual and for his more general conduct in the counts where specific victims were not named." Now, I read that as saying that he went through, as it were, almost victim by victim; is that correct?

A. Yes, he did. I took him through victim by victim.

Q. And in each case he expressed apology and apology and remorse and regret? ⁴³⁸

A. It's because I asked him categorically: How do you feel about this?

Q. The field was rather widened then. You say this: He expressed apology for the entire offensive undertaking, which he accepted to have to have been a part, although not a planner." By "the entire offensive undertaking," did you understand him to mean the war in that area?

A. Yes, I did.

Q. And what happened during the course of the war in that area.

A. Yes. And not just the war but the misconduct affiliated with the war.

Q. So not only his misconduct but effectively the misconduct of others unnamed.

A. Yes.

Q. Did you get the sense that it followed from that that he was expressing regret for the, as it were, the political policies of others who had started this conflict?

A. Yes, I thought he was taking on perhaps more responsibility, but he was expressing regret for the political.

Q. He then went on to say that he was at a loss to explain his behaviour and it was still a mystery to him how he could have engaged in such brutal behaviour.

A. Yes.

Q. Unlike any other time in his life. He went on to give you his background details. Turning over, please, to the next page, it's about -- again, about halfway down. ⁴³⁹ It starts, "After three years and five months." Do you see that paragraph?

A. Yes, sir.

Q. It goes on to say: "He's prepared to face the future, accept the consequences, express acceptance of responsibility and remorse, and offer an apology for his behaviour in writing." It then goes on to say this: "Or in a face-to-face encounter with his individual victims or victim groups if they wished."

Now, that's an easy thing, perhaps, for anybody to say. What was your perception of the honesty and openness with which it was expressed to you by Mr. Nikolic?

A. I had no hesitation in receiving that as a faithful presentation. He said it to me more than once. He said it to me more -- on more than one occasion. He had his own ideas about how it might take place. He could understand that there might be other ideas about how it would take place. He understood that he was likely to express -- experience in such an endeavour, especially in a face-to-face endeavour, a great deal of personal animus towards him, whether he was the perpetrator of the offence to which the individuals were -- or he was representative of a class of persons who had been offended -- who had offended.

Q. Now, that seems to be contained -- it's jumping -- it would take us all day if I was going to go through the report line by line, and I can say now, as far as the Defence is concerned -- the report is accepted in its entirety, as far as the Defence is concerned, as the truth of the evidence of its contents. And I make that plain. ⁴⁴⁰ But I jump, therefore, to page 7. Again, it's almost exactly halfway down. It's under the subheading "Offender's attitude regarding victims."

A. Yes, I see it.

Q. Which can be read for its obvious meaning. But the second paragraph begins, "When asked how he might go about approaching" --

THE INTERPRETER: Could the speakers please slow down and pause between question and answer. Thank you.

MR. MORRISON: I'm sorry. Thank you.

Q. He was asked -- when asked how he thought he might go about approaching victims, he offered a strategy. Is that correct?

A. Yes. This was, again, I thought indicative of the fact that this was not a new idea, that it just crossed his mind as I started to raise it with him. He had the notion of contacting persons whom his family had informed him would already be interested in talking to him, that were in a friendly mode toward him, and he would use them more or less in a snowball strategy, after speaking with them, seeking them as interveners or recommenders or subsequent persons whom he might speak to try and repair the social fabric.

Q. We then go on over the page, again almost halfway down, where you indicate that you contacted Mr. Liam McDowal and we've already discussed that a little.

A. Yes, I'm with you.

Q. I don't think it's contested, either in this case or indeed in any ⁴⁴¹ other case in this Tribunal, that although Mr. Nikolic is in fact the only person from Vlasenica who has faced indictment, there will be many other suspects in that area. Is that the impression that you got?

A. I really couldn't answer that, Counsel. I just don't know.

Q. Well, I don't think the Office of the Prosecutor and myself have any distance between us as to that.

I just want to deal with one matter at the bottom of page 9, where he specifically mentioned that he -- his -- my co-counsel and his co-counsel had been bringing him in books and he'd been reading authors such as Thomas Mann, Tolkien, Dostoyevsky, Harold Robbins and Herman Hesse and Paulo Coelho. Did that in any sense surprise you?

A. Well, I thought it was a turn in a good direction. Number one, he, he had previously admitted he wasn't a particularly good student when he was in school, number one.

Q. Yes.

A. Number two, as an academic I didn't mention in my vitae that I was a professor for ten years and I've also been in school myself quite a few times. I believe strongly that when we read either for personal enjoyment or for study, we are transformed by what we read for better or worse. And he was reading -- he admitted that he was reading voraciously and with great interest some of these writers, who are known for their complex work and -- not all of them. Some of them are fun. But I was -- I thought that was a positive step, because given the circumstances in which he found himself, it was one of the ways that he could perhaps come to know himself better by reading some of this type of material. ⁴⁴²

Q. With great respect to Harold Robbins, if we could leave him slightly aside.

A. That's why I said fun.

Q. Yes, Thomas Mann, Dostoyevsky, Herman Hesse and Paulo Coelho are not easy reads, are they?

A. From the little long-time-ago exposure I have had, I would say not so. They are stimulating writers.

Q. It depends on which work you are referring to, but those authors deal in detail with complex human emotions and issues, and it requires a pretty fair determination and understanding of the human condition to get the best out of them; is that fair?

A. Well, it depends on what level that you're approaching it, where you are already, but it takes tenacity to stick with it.

Q. You then go on to give his personal history about which there is no dispute from the Defence. That takes from pages 11 to page 15, then marital status or family. Again, there's no observation or dispute from the Defence. And that takes from page 15 really through to the end of the main body of the report.

This is not an easy thing for an interviewer to judge, but did you feel in your assessment and with your expertise that at the conclusion of all of your interviewing of Mr. Nikolic that he had benefited from it in the broadest sense?

A. He told me so.

Q. Yes. I'm very grateful. Thank you very much, Dr. Grosselfinger.

JUDGE SCHOMBURG: May I ask the Prosecution, do you have any ⁴⁴³ further questions?

MR. YAPA: We have no further questions, Your Honour.

JUDGE SCHOMBURG: Thank you. Any -- I can't see any questions by the Judges.

So finally, it's only a technical question. May I ask, please, the usher to present the report provided by Dr. Grosselfinger to Madam Grosselfinger in order that you please sign at the bottom line of the last page.

THE WITNESS: Yesterday I submitted to the Registry a signed paper also, a signed front page. But I'd be happy to give my John Hancock again.

JUDGE SCHOMBURG: A signed front page. The signature should be at the end of the report.

THE WITNESS: All right.

JUDGE SCHOMBURG: In order that it shows -- that it covers all of this.

And Madam Registrar was kind enough to compile the different parts including your CV and your addendum you kindly sent to us. So then everything will be covered.

The intention is to admit Dr. Grosselfinger's statement, written statement, into evidence. Are there any objections? This is not the case.

Hereby admitted into evidence. May I hear what is the document number, J4? Am I correct? Or did we already -- J4. Okay. ⁴⁴⁴ I have to thank you, also you, that you were prepared in this short period of time to do this intensive and exhaustive study, not only here in The Hague but also in the field, which is not that easy, as we all know. But thank you very much. It's, of course, important, as we are a criminal court, that we not only hear about the fate of the victims and what happened as heinous crimes at that time but also to have some access, professional access to the personality of an accused. Thank you for giving us this insight.

The witness is excused. May I ask the usher to escort the witness.

THE WITNESS: Thank you, Your Honours, for this opportunity.

[The witness withdrew]

JUDGE SCHOMBURG: When we are just going along the technical questions, may I ask Madam Registrar, what was your final result of the research related to the report of Dr. Zepter [Realtime transcript read in error "Dexter"]? Was it now or was it not admitted into evidence until now? It was still in dispute when you were away.

[Trial Chamber and registrar confer]

JUDGE SCHOMBURG: So in this case, my recollection indeed insisted -- assisted me, and we discussed it, but unfortunately it's not formally to be read from the transcript that it was formally admitted into evidence. It was not disputed at all, and therefore hereby formally and finally admitted into evidence as a Prosecution exhibit. This brings me to the next point, and this is a question, how to deal with the until now confidential Annex C, that is, of the Prosecutor's ⁴⁴⁵ sentencing brief, a question of the accused's cooperation. Mr. Yapa, please.

MR. YAPA: Your Honour, I did not want to interrupt what Your Honour was mentioning.

In place of Dr. Zepter's name, the place on the record is Dr. Dexter. That should be corrected.

JUDGE SCHOMBURG: Yes. At line -- page 14, indeed you can read "Dr. Dexter," it should be replaced by "Zepter," of course.

MR. YAPA: Yes.

JUDGE SCHOMBURG: I would have hoped you would give us an answer on how this factual basis on the accused's cooperation --

MR. MORRISON: I'm sorry to interrupt, Your Honours. May I suggest that for the moment, because I suspect that matters that fall within the ambit of a confidential annex that we go into private session.

JUDGE SCHOMBURG: If the Defence does not want to discuss the accused's cooperation in public, I think the Judges will not insist in doing so; therefore, let's go into private session.

(Private session)

(7 lines redacted) ⁴⁴⁶

(8 pages redacted) ⁴⁵⁴

(22 lines redacted)

(Open session)

JUDGE SCHOMBURG: It is my understanding that the Prosecution tenders Annex C of the sentencing brief, paragraph 5, into -- as evidence ⁴⁵⁵ in this concrete case.

Mr. Yapa?

MR. YAPA: Yes, Your Honour, that is our application.

JUDGE SCHOMBURG: And I need not ask the Defence, because it was a suggestion by the Defence. Therefore, this part is first, the confidentiality of this part is lifted, and C5 of the annex to the Prosecution sentencing brief is admitted into evidence. May I ask Madam Registrar, what is the number of this exhibit?

THE REGISTRAR: It will be Exhibit P7, Your Honours, thank you.

JUDGE SCHOMBURG: Thank you. Thereby admitted into evidence as P7.

Let us now turn to the next question, and it was still open, at least during the discussions in open court. What about the accused? Is the accused prepared to give a statement or is the accused prepared to testify? I want to be absolutely on the safe side before the Defence decides finally on this issue, because maybe I'm wrong, but I got the impression yesterday that the Defence might be under the impression that when the accused would limit the testimony, formal testimony under solemn declaration to certain points only, such as expressing remorse, then no additional questions that are relevant for the determination of an appropriate sentence could be put to him.

In the meantime, the Trial Chamber discussed this issue, and it should be clear that also based on authorities, be it now from common law or civil law, that when a witness offers his own testimony as such, then all questions may be put to him relevant for the determination of an ⁴⁵⁶ appropriate sentence. I only want to make this abundantly clear before we hear your final decision on this point.

MR. MORRISON: I'm grateful, Your Honour. I've had the opportunity to discuss this issue with my learned friends for the Prosecution, and it was certainly our joint understanding that as far as the Prosecution is concerned, if Mr. Nikolic gave testimony that relates purely to issues of remorse, they would not seek to cross-examine him. And I've confirmed that this morning in direct oral discussions with my learned friend, the Prosecution.

I took that stance because that was a matter which I understood that we had between the Defence and Prosecution had already been agreed at a Rule 65 ter meeting, and that's the way I am used to dealing with these matters in my own jurisdiction. I appreciate immediately I am not in my own jurisdiction, but that was a matter of equity and fairness that the Prosecution and the Defence are ad item on.

I accept, as a general proposition of law, that if a person elects to give testimony, he may be asked any relevant and admissible question, but that always, of course, is constrained by the issue of overall fairness. This is a hearing not to determine guilt and culpability. He's already pleaded to his guilt and admitted his culpability. This is a hearing designed purely to determine sentence. And I am naturally curious to see where the dividing line between those two issues lies. What I would like to have the opportunity to do, first and foremost, because I am now speaking without instructions, is to have a short adjournment to discuss the position with the defendant. I know it ⁴⁵⁷ has always been his desire to give testimony, but I am bound by, of course, my professional obligations to place certain caveats and to see what his reaction is to those caveats.

JUDGE SCHOMBURG: Thank you. I only wanted to have the transcript extremely clear on this point. I checked with the other participants of the last 65 ter meetings, and there was no such agreement. Maybe between the Prosecution and the Defence; however, never with the Bench, that one could proceed this way and limit testimony, formal testimony to the mere question of showing remorse. However, it would be open for a discussion of all relevant points for determining an appropriate sentence. So, therefore, I made this opening remarks in this respect. And I think it's not necessary to preach to the converted of the common-law system when referring, for example, to parts of Brown versus United States of the Supreme Court of the United States that an accused, to quote, "Could not take the stand to testify in her own behalf and also claim the right to be free from cross-examination on matters raised by her own testimony on direct examination." And it's the understanding that the matters raised by testimony on mitigating factors and the factors leading us to an appropriate sentence. And we have to be aware that we are in a hybrid system, to doubt that in a civil-law system whenever an accused has started to give some statements, then of course an accused can't be compelled to give an answer. However, one can draw inference, also inferences to the detriment of an accused, if on certain questions he then starts not to answer concrete questions.

I think this sets the framework of a possible testimony of your ⁴⁵⁸ client, and it provides you with the necessary information when you discuss this issue with your client.

How long would it take that you can reasonably discuss this issue with your client?

MR. MORRISON: Your Honour, the unhelpful answer is "not very long." I'm just looking at the time, and I'm wondering whether or not it might be more sensible for the utilisation of time to take the break that Your Honour, I anticipate, would have taken perhaps at 11.30, to take it now, and I can combine taking instructions with that break.

JUDGE SCHOMBURG: We still are under the impression that it is possible to conclude the hearing today if we all try to do our very best on this, and therefore let us limit the break now until 10.30. If you need more time, please let us know through the appropriate channels.

[Trial Chamber confers]

JUDGE SCHOMBURG: Judge Agius just rightly pointed out that in addition you should know, even though you come to an agreement with the Prosecution, that the Prosecution would not cross-examine Dr. Stakic for whatever reasons -- sorry, sorry, this was a Freudian. My apologies, Mr. Nikolic.

If the Prosecution would not cross-examine Mr. Dragan Nikolic, then it under our hybrid rules - and we all know how difficult it is to work under the hybrid rules - we still have Rule 98, where it is, and other rules allowing the Judges to put questions to the accused, and this will occur in all likelihood. Only that we are also clear on this point. Thank you. The Trial Chamber stays adjourned until 10.30. ⁴⁵⁹

--- Recess taken at 10.17 a.m.

--- On resuming at 10.34 a.m.

JUDGE SCHOMBURG: Please be seated. Mr. Morrison.

MR. MORRISON: Your Honour, I'm grateful for the opportunity to take further instructions in this matter. And as a result of the instructions I received, but more particularly the advice that I felt compelled to tender, I can now inform the Court that the accused will be making a statement at the conclusion of all other matters in this case, to deal with certain issues but not be giving testimony. The -- it remains, however, that counsel, particularly myself, will be only too grateful to assist the Trial Chamber in any matter that we are able to assist in the event of further observations or questions from the Bench in respect of matters that are within the ambit of the Defence's knowledge that I am entitled to explain to the Court without breaching legal, professional privilege.

JUDGE SCHOMBURG: Thank you for this clarification. Then I think the part on additional evidence, leading us to an appropriate sentence is concluded, but I will, of course, give both parties the chance to tell me if this should not be the case and if one of the parties wants to tender additional documents, exhibits, and so on. The Prosecution, please.

[Prosecution counsel confer]

MR. YAPA: I wish to mention one matter, Your Honour. The documents that we will be tendering, the transcripts, will be -- of the ⁴⁶⁰ interviews with Mr. Nikolic, as was required in the former submissions, will be tendered in the course of the day.

JUDGE SCHOMBURG: Thank you. If it could be done in a way that one of your counsel would come to my office, that in case there might be any question that helps us to find exactly the concrete questions we have to these documents.

For the Defence, anything else to be tendered?

MR. MORRISON: Well, as we know, both parties have until November the 24th to tender any further submissions in writing in respect of the matters contained in the report of Professor Sieber and indeed the testimony given by Professor Sieber. I cannot yet state that advantage will be taken of that opportunity, but it's likely that it will be.

JUDGE SCHOMBURG: Thank you. This opportunity was already granted yesterday.

I only wanted now finally to clarify the following: We have admitted into evidence the Sieber report in its form of yesterday; however, he told us that he will present a compiled version next Tuesday. I anticipate that this will be admitted into evidence, if there's no objection, under the same number, only with the addition of "/1", and this will then replace the former CD-ROM.

As regards the country reports, we were in a situation that the reports, due to the short time available for this expert, were only provided in a language that is not an official language of this Tribunal. We would try our very best to have translated the main parts of those German country reports that were discussed during yesterday's hearing, and ⁴⁶¹ I take it that there is no objection that these translations then would be filed under the same document number, only with the addition of "/2". Are there any objections to this? Because I think it's not necessary to reopen the case just for this purpose of admitting this translations.

MR. YAPA: We have no objections, Your Honour.

MR. MORRISON: Your Honour, no objections. And I point out that in respect of the full German texts, although, of course, it's not one of the official languages of the Tribunal, my co-counsel is virtually mother-tongue fluent in German and can assist in the translation of those parts which are otherwise not translated.

JUDGE SCHOMBURG: Thank you for this kind assistance. Then we may come immediately to the closing arguments. We have to take into account several interests, first and foremost, the interest of the interpreters, because they had only a break of 15 minutes until now. I take it that the Prosecution would need about 60 minutes for the closing arguments.

What about the time needed by the Defence? Because we just discussed this issue. We want to avoid that on one day the submissions are given by one party only and on the next day by the other. So therefore, can you tell us how long it will take.

MR. MORRISON: Your Honour, I can tell you how long I intend to take, and I hope that I am accurate. But as Your Honour knows, one thing which is notoriously unreliable are counsel's estimate of time. If I may simply say, when I sit as a judge in England, I always say to the jury, "When counsel asks me for a five-minute break that five ⁴⁶² minutes is a legal term that means half an hour." But we will finish today; of that I have no doubt.

JUDGE SCHOMBURG: May I ask the interpreters in this informal way, do you agree that we hear now the final arguments by the Prosecution for the next 60 minutes and then have a break of half an hour? Would this be convenient for you?

THE INTERPRETER: Yes, say the interpreters.

JUDGE SCHOMBURG: I see nodding. Thank you very much for your assistance.

And may I then ask the Prosecution, please take the floor and give us your observations.

MR. YAPA: I'm sorry, Your Honour, I'm looking for the podium. It's not available. I thought it was under the table, but it's not. It should be on the table. Thank you.

I thank Your Honours. May it please Your Honours. The stage has come for us to make the closing submissions in this hearing, which is termed the sentencing hearing. As Your Honours will be pleased to remember, that it is in consequence of a plea of guilt that was tendered by the accused that Your Honours decided to have the sentencing hearing. The sentencing hearing, if I may submit, takes a different form in this case. I don't say "a different form," but it has certain special features, and then maybe unique features as well. This may be the first time in the Tribunal that a sentencing expert report was called for, and I'm happy to know that it was a substantive report and there were certain drawbacks in the sense because of the constraints, time constraints and ⁴⁶³ other factors, the learned professor was not able to submit a complete report, but hopefully that report will come before the 24th of November when we will be able to make submissions or any observations on that report.

My purpose at this stage is to make submissions on the hearing that was conducted so far. Your Honours will be pleased to remember, or I wish to draw Your Honours' attention to the sentencing brief that was submitted by the Prosecution, wherein we attempted to include all necessary material and necessary submissions and, from the point of view of the law, what should be stated in a sentencing brief. But be that as it may, it may require me to refer to some of the legal provisions which were repeated in the sentencing brief at the stage of my oral submissions. It is only for the purpose of getting assistance to make my submissions that I'll be repeating those legal provisions.

If I may go a little bit into the history of the authority granted to Judges to pass sentence on convicted persons. I will wish to refer specifically to international criminal law, the rules of law which demand a standard of conduct from individuals provided for in international criminal law today. The principle of individual responsibility is well recognised in such law. When a standard of conduct established by the rules of law is violated, provision is made in such law for the punishment of such violations. It is not my intention at this stage to repeat all that we have said in our sentencing brief; however, I submit that as a starting point, it is relevant and in order to make reference to the applicable law. ⁴⁶⁴ Article 24 of the -- of the Statute of the Tribunal makes reference to the penalty that could be imposed on a convicted person. If I may read out that portion that is relevant to these proceedings, Article 24 of the Statute: "The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment the Trial Chamber shall have recourse to the general practice regarding prison sentences in the course of the former Yugoslavia."

Then secondly, it, in imposing the sentence, says "the Trial Chamber should take into account such factors" -- it is not exhaustive, but it says "such factors" -- "as the gravity of the offence and the individual circumstances of the convicted person."

There is a third one which is not so relevant. There are other provisions that are applicable which are contained in the Rules of Procedure and Evidence. I will at this stage refer to those as well. These have been repeated in the sentencing brief, in our sentencing brief, and the sentencing brief of my learned friend.

Sentencing procedure on a guilty plea, which is Rule 100: "If the Trial Chamber convict the accused on a guilty plea, the Prosecutor and the Defence may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence," which to some extent we have done, and now at this stage we are making the submissions on the material that is available.

Then Rule 101: "A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person's life." Then comes the factors that is could be taken into ⁴⁶⁵ account in making a determination of the appropriate sentence. "In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24," - which I read out a little while ago - "paragraph 4 of the Statute, as well as such factors as any aggravating circumstances, any mitigating circumstances, including substantial cooperation with the Prosecutor by the convicted person before or after conviction.

"The general practice regarding prison sentences in the courts of the former Yugoslavia" - that's the third one. The fourth would not be so relevant at this stage. It is valid. "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 of the Tribunal." Then in respect of credit that could be granted to the accused in respect of the sentence.

Now, in respect of these provisions, Your Honours are aware that reference has been made to all these provisions that I read out in practically all cases concluded in the Tribunal, let it be in the final judgements after trial or after a plea of guilty and in the judgements of the Appeals Chamber, in the case of appeals after conviction. Although today, there is always attempt to explore the guidelines available in the determination of an appropriate sentence in a given case. In the early days of the development of international criminal law, a provision available was that the imposing authority, that is, the Judge of the Tribunal, shall have the right to impose upon a defendant on conviction that or such other punishment as shall be determined by it to ⁴⁶⁶ be just. Consequently, the only guidance was that the punishment should be just. It would be seen that the margin of discretion for the Judges was very wide.

The provisions contained in the Statute of the Tribunals -- when I say "the Tribunals," I take into account the ICTR as well; the provision there is article 23 of that Statute -- those provisions are comparatively in more detail. In brief, these criteria include the gravity of the offence, the individual circumstances of the convicted person. The Rules provide that the Trial Chamber shall take into account, in addition to the factors mentioned in Article 24, factors such as aggravating circumstances, mitigating circumstances including substantial cooperation with the Prosecutor by the convicted person before or after, and the general practice regarding prison sentences in the courts of the former Yugoslavia.

The guideline relating to the last factor, that is the general practice regarding prison sentences in the courts of the former Yugoslavia, has been interpreted in the cases in the Tribunal as guiding but not binding.

As submitted in the sentencing brief of the Prosecution, the Trial Chambers and the Appeals Chamber have repeatedly held that the gravity of the offence is the primary considering in imposing sentence. In the case of Aleksovski, the Appeals Chamber held that the gravity of the offence is the result of combined analysis of the circumstances of the case and the form and degree of the accused's participation in the crime. This is referred to in paragraph 182 of the judgement -- of that judgement. ^{467BLANK PAGE 468} The offences to which the plea of guilt in this case was tendered and accepted fall within crimes against humanity.

At this stage, I propose to indicate to Your Honours, in line with the observation that has been made, and also in line with the submissions that we have made in the sentencing brief, the aggravating material available in the proceedings so far.

If Your Honours will bear with me. My papers have got mixed up.

[Prosecution counsel confer]

MR. YAPA: I thank Your Honours. The aggravating circumstances that Your Honours will take note of, that we present as aggravating circumstances in the case: Firstly, the impact on the victims. Injuries received as a result of beatings, impact of lost children, relatives, and uncertainty, exacerbated suffering of victims, detainees of the camp. That is one factor that has come out in the proceedings held so far.

Secondly, seeing fellow detainees being tortured, killed, especially detainees who were known to each other by relations or community. These matters are highlighted in the impact statements that we have filed before Your Honours.

Female detainees who were raped, felt disgusted by what had happened. Some find that they cannot lead a normal life or fulfil their roles as mothers or wives as a result of their ordeals at the camp. Relationships of family members have been affected.

Now, Mr. Nikolic has admitted that he was a commander of the camp, of the Susica camp. But this, also we take it as an aggravating factor in ⁴⁶⁹ relation to the offences that were committed or that have been admitted by the accused, by Mr. Nikolic. It is in evidence that Mr. Nikolic would restrict the movements of the detainees by ordering them around and allowing them to move only when he told them to do so. He would make detainees carry out degrading physical acts, such as washing his feet. He would order women to clean houses, dishes, and work at the camp site. Some of these women later went missing from the camp. He alone as a commander ordered victims of beatings -- victims of beatings to be buried, and he further ordered undertaker's vehicles to be present. His authority is seen there.

It is in evidence before Your Honours that he was seen in the camp more often than the other guards. He would control which guards were on assignment at the camp. He's the one who issued orders. He was present in the camp practically every day, most of the time, including both afternoons and evenings. At night-time, he would sleep at the guardhouse, where he was accommodated, and at times he would come to the camp at midnight. It was in evidence that he would come in the night quite regularly into the hangar.

Then there were the victims. They were all civilians, including children and women. They were not volunteers to come into the camp. They were forced into the camp. But they were taken to the camp against their will and they were given the hope that they would be exchanged in time. This was the evidence that was available from (redacted), when he came in he was given the information that they were to be exchanged, but he continued to stay there for one month. ⁴⁷⁰ The camp was from the time of its inception full. We have that evidence from (redacted) -- I'm sorry, from one of the witnesses that prisoners were being taken into the camp regularly, and they were being shifted, they were being brought in, and the camp was full. Young women were taken out of the camp and returned. They were taken out in the night, and then they were brought back in the morning.

[Trial Chamber confers]

JUDGE SCHOMBURG: I will ask Madam Registrar, please to redact the aforementioned name from the transcript. Thank you.

MR. YAPA: I thank Your Honour. It was in evidence that women were taken in the evenings, in the night, and they were brought back in the morning. And they appeared to be distressed. They were distraught. In other words, indicating that they had been subjected to a kind of assault.

It is also in evidence that Dragan Nikolic would personally take out women and hand them over to guards and bring them back himself, and he used to repeat that kind of behaviour.

In respect of food, the detainees were provided only food once a day, but we have in evidence that when they were brought in, they were not provided with any food and they had to spend long hours without any food. And the food that was provided was of very low quality. The detainees did not have any medical care. They were not provided with any medical care; the victims as well. Hygienic conditions in the hangar where the detainees were kept was extremely poor. There was people who were falling ill and there was a foul stench in the camp, in the hangar. ⁴⁷¹ He was armed all the time, and he came -- there is an instance which is in evidence that he came in to the hangar and used his firearm, and the people had to -- the detainees in the hangar had to keep their heads down, but he shot all round.

JUDGE SCHOMBURG: Madam Registrar, I think the name was mentioned twice.

[Trial Chamber and registrar confer]

JUDGE SCHOMBURG: Please continue.

MR. YAPA: Yes, Your Honour. It appears that Dragan Nikolic took pleasure in terrifying the detainees in the camp. In addition to Nikolic, guards were well armed at all times. He had a guard dog with him, and the guard dog was, true to its name, a guard dog, a trained guard dog.

A further aggravating factor that I would like to mention is the depravity of the crimes. It is in evidence that, in addition to the admission, that he beat a number of male detainees. In one instance, we have an serious incident -- an extremely incident where the eye of a detainee was knocked out as a result of the assault and he was brought into the hangar. He had no place to sleep. He was thrown onto the wet floor. He was not given any food. Nikolic prevented food being served to him. It is in evidence that he repeatedly beat detainees to such an extent that those detainees who were subjected to the assaults were not able to sit up, they were not able to stand, they were in a desperate situation.

Detainees were taken out of the hangar, they were beaten, and ⁴⁷² brought back into the hangar after the beatings. And the other detainees saw that the -- the victims of assault were -- had been subjected to inhumane treatment by way of causing very serious injury of them. There is evidence that Dragan Nikolic prevented personally food being served to the detainees. Sometimes when, as a result of the beating a detainee lost consciousness, water -- it is in evidence that was water was poured on the detainees, they revived and further assaults took place. It is in evidence that he did not accede to the requests made by the detainee, maybe for food, maybe for any other kind of assistance; it was not provided by -- by Nikolic. It was also in evidence that his own brother pleaded with him to stop the beatings, but he did not accede to that request. He continued to mistreat the detainees. One other factor, important factor, is that many of the victims in the hangar or in the camp were known to the -- to Mr. Nikolic. They were known to him. And he made it a point to say that that affinity or that relationship that he had did not matter in any way.

These are the aggravating circumstances that have been highlighted in the -- in the proceedings, but Your Honours will be pleased to see on the admitted facts in the indictment, all the facts that were admitted, the depravity or the -- the serious nature or the aggravating factors are more in the open than that was stated in the -- in the proceedings here, because all the witnesses were not testifying. Some of the witnesses only -- impact witnesses statements are available, two or three witnesses were presented by the -- by the Prosecution. But the facts that were admitted to by the -- by Mr. Nikolic also have to be taken into account. ⁴⁷³ In the -- in the Rule that I read out, which is 101, there is the reference to mitigating factors, that is, Rule 101, and my learned friend -- or the Defence has referred to many of those factors as mitigating factors for their benefit. What are these factors that have been referred to? If I may take something that happened before Your Honours; the Defence called two witnesses, two witnesses to speak to the character of Mr. Dragan Nikolic, more to do with the previous character of Mr. Nikolic, that he was a well-behaved person, that he was -- that he was very, very friendly, and that the witnesses could not believe that he could have committed these offences alleged against him; in other words, to say that he had no propensity to violence previously. In my submission, so far as the events, the incidents referred to in the indictment, that evidence is of not great value.

We have not -- there is another aspect that has to be considered, but we have not yet heard any expression of remorse. There is this aspect that Dr. Grosselfinger has testified before Your Honours to say that at the interviews, Mr. Nikolic was concerned in expressing his remorseness, his guilty feeling, his desire to tender an apology. They were stated. But it is my submission that, of course, it is -- it is a report that has been presented to Your Honours, that it will be important for Mr. Nikolic himself to state that before Your Honours.

The fact of the guilty plea is also taken into account as -- as a mitigating factor. The Prosecution concedes that the accused pleaded guilty, I should say not at the very first opportunity available, but he pleaded guilty without going to trial. There were other developments that ⁴⁷⁴ took place in the case previously, but it is in evidence that he was aware of an indictment against him even when he was in Belgrade, he was aware of an indictment against him. We see from that stage, at least two to three years later, that he had entered a plea of guilty. It is to the -- it can be taken as a mitigating factor, but Your Honours know in respect of a plea of guilt what is of most importance is that the plea of guilt is tendered at the first available opportunity. We do not see that quality in this plea. The fact that he pleaded guilty without going to trial is to his advantage; that I should say.

With respect of his personal circumstances that is adverted to in the Rule, it is my submission that there is -- had anything that we could say, he was in Vlasenica; he had gainful employment; he was recruited to be employed in the Susica camp; and thereafter, and of course, he was not a married person. But those do not go in his favour as personal circumstances that should be taken into consideration, as a mitigating factor.

There are certain other matters that have been referred to by my learned friend in the sentencing brief, as regards his age, present age, as to how old he would be if he was to be incarcerated for a longer period. In the Prosecution's submission, that factor -- there is nothing significant shown that that factor should accrue to his advantage. He's not an old person as such. He was young at the time that he committed the offences, and he still is a mature adult.

My learned friend, in his inimitable way or style, makes reference to the indictment in this case having had a convoluted history. I may not ⁴⁷⁵ want to enter into polemics on that score, but the indictment itself, this indictment itself, which is before Your Honours, is a refined indictment. No doubt at the commencement it had 80-odd counts, but after due consideration by the Prosecution it was brought down to 8 counts and subsequently to 4 counts. It is my submission that that was a process of refinement of the indictment and that has accrued to the benefit of the Defence, of the Prosecution, and with great respect, I should say to Your Honours as well.

I have to make reference to the plea agreement that was entered into. Your Honours know that although there is the provision which states quite clearly that Your Honours are not bound by a plea agreement, but a plea agreement is referred to in the Rules. And also, there is reference to the recommendation of a sentence, and also it is stated that Your Honours are not bound by a recommendation, which is very clearly understood by all parties, that the matter of sentencing is entirely a matter for Your Honours, in your discretion. But it is of importance that in this case that there was a plea agreement between the parties, and that in terms of the plea agreement, a plea of guilt was entered into by Mr. Nikolic.

As to the conditions or the terms in the plea agreement, I have mentioned previously as well that there was some condition attached to the recommendation that was made by the Prosecution. This has been already adverted to before Your Honours and that is a significant factor I should submit, a very significant factor. And when the necessary material is placed before Your Honours, Your Honours will be in a position to decide ⁴⁷⁶ whether the statement made by the Prosecution in respect of the cooperation that is offered by Mr. Nikolic is substantial or not. Taking into account the aggravating circumstances, the mitigating circumstances as we understand, as available in the proceedings, and the fact of cooperation, we have recommended a term of 15 years that should be imposed on the accused. Now, this is what is in the plea agreement, and today in my submissions I wish to submit to Your Honours that we stand by that recommendation.

Those would be my submissions. I thank Your Honours. Questioned by the Court:

JUDGE SCHOMBURG: May I take the opportunity to ask you two questions on the merits and one legal question; the first would go to the point was there any cooperation between the Prosecution and Mr. Nikolic before the plea agreement.

MR. YAPA: If Your Honours please, I will term it as a cordial relationship that we had, but I would not be able to term it as cooperation." There was cordial relations; we were not an antagonistic, we were not contentious. But it is not possible for me to make a submission that there was cooperation.

JUDGE SCHOMBURG: The second question would be: Would it be correct to state that the final guilty plea and arrangement was made at a point in time when already witnesses were called to The Hague and actually were in The Hague in order to take depositions scheduled for this time?

MR. YAPA: [Microphone not activated]

JUDGE SCHOMBURG: And then if we turn to the legal question. We ⁴⁷⁷ have before us four counts. And as we discussed in a 65 ter meeting already, there are problems emanating from the jurisprudence of this Tribunal. On the one-hand side, Judge, in the charges you have Count 1, persecutions, where it is alleged, and Mr. Nikolic admitted to have committed these crimes, that he persecuted Muslim and non-Serb detainees at the Susica camp by subjecting them to murders, rapes, and tortures. And torture.

The other points and the other acts that are in the view of the Prosecution seen as acts of persecutions are not interesting in the moment; however, we would come to a solution that we would come to a cumulative conviction on persecution committed by these several acts of murder, persecutions committed by several acts of torture, persecution committed by, as it reads in the indictment, "aiding and abetting in sexual violence"; this would be Count 3.

The question is: Would the Prosecution agree that following the jurisprudence of this Tribunal the adequate solution would be that the persecutions and the Counts 2, 3, and 4 would be included in only one conviction and then sentence related to persecutions where the persecutions are included, however, with the additional elements of crime that is the discriminatory intent? Would you agree with this conclusion?

MR. YAPA: Your Honour, I could state where I answer Your Honours's question, but I may I go back to the submissions that I made in respect of the plea agreement and my final submission on recommended sentence? We have -- the Prosecution has recommended a term of 15 years, as it is termed as a global sentence or a compact sentence. We have taken ⁴⁷⁸ into account the offences that the accused has pleaded guilty to, but the recommendation is not for the individual counts but as a compound sentence that could be imposed.

In respect of the count of persecution, it may be sometimes that inclusion of murder, sexual violence, and others which are separately charged in the indictment may be technically wrong, but however, there is disposition in the count of persecutions. There are other matters that are referred to, like forcible transfer, detention, atmosphere of terror. They are not accounted for as separate offences or separate charges. So if Your Honours are of a mind to omit murder and the other offences that are charged in the other counts, still the count of persecutions remains. And if Your Honours will be pleased to listen to my submission, that is that persecution by itself is a distinct offence, so we have selected as a distinct offence, as distinct from murder, from rape or sexual violence, and torture. So if the other factors are included, are taken into account, like forcible transfer, detention, and atmosphere of terror, he could be found guilty of persecution independently of the finding of guilt in respect of the other counts.

JUDGE SCHOMBURG: I think we came already to the conclusion that those other alleged conducts as, yeah, also in the jurisprudence of this Tribunal, are seen as acts of persecution. You mentioned this before. An atmosphere of terror created by the murders, beatings, sexual violence, and other physical and mental abuse of detainees, forcible transfer, in whatever or whatever term you would use for this. I think this is undisputed. The only question that remains is: Is it possible to convict ⁴⁷⁹ a person twice for murder, separately for the several acts of murder on the one-hand side, for example, and then in addition to this cumulatively as an act of persecution? This is the only question.

MR. YAPA: I understand, Your Honour. That is why I made the submission that it is in Your Honours' power to hold that Your Honours will not find him guilty on the basis on the count of murder on the basis of his having committed murder. So it will be persecution on account of other factors that are available in that count, because -- the reasoning behind it would be that Your Honours will be finding him guilty of murder separately in a separate count. So that would not be regular; it is my submission that it would not be regular.

In any event, that is why I fall back on the submission of our recommended sentence. We do not recommend that he be given 15 years for each count. Our recommendation is that he be sentenced to 15 years.

JUDGE SCHOMBURG: Thank you. May I ask my colleagues, do you have any additional questions?

[Trial Chamber confers]

JUDGE SCHOMBURG: Judge Agius, please.

JUDGE AGIUS: Good morning, Mr. Yapa. I wonder if you have any submissions to make on two aspects that come to my mind which -- one fits in according to myself in the whole purpose of punishment; and the second fits in the raison d'etre of this Tribunal, or a part of it. The first one is the reform of the accused as one of the aims that punishment should aim -- should aspire. The second one is reconciliation, restoration of peace, and reconciliation in the territory of the ex-Yugoslavia. Can I ⁴⁸⁰ take it that you have already given some consideration to these two aspects and that either or both of them form part of the basis for your recommendation to this Tribunal? Thank you.

MR. YAPA: I thank Your Honour for those two questions. These are matters that we have, in fact, taken into consideration. In any event, may I make the submission, reconciliation is a factor that has to be taken into account, in terms of the Statute, in terms of the resolutions. That is a major factor that has to be taken into account. So that has been taken into account.

In respect of reform, that is, of course, something that is personal to the accused. In the way that the plea has been tendered and others have been mentioned -- other factors have been mentioned, I think that is a fact that has to be taken into account. We -- we on our part, before the recommendation was made, we took that into account.

JUDGE SCHOMBURG: There are no further questions. Then I have to thank you, Mr. Yapa, for your submissions made on behalf of the International Community.

The trial stays adjourned until 12.00.

--- Recess taken at 11.33 a.m.

--- On resuming at 12.04 p.m.

JUDGE SCHOMBURG: Please be seated. And we would like to hear now the final submissions by the Defence.

MR. YAPA: With Your Honours' permission, I'm sorry to interrupt the proceedings in this way. In respect of the transcripts that we ⁴⁸¹ undertook to submit to Your Honours, they are available. Can I hand them over at this stage? Proceedings of two days -- the interview notes of two days. They're available here. That's the 25th of September, 2003, and the 26th of September, 2003. The contents would illustrate the type of cooperation that the accused offered. In all, it was interviews that were conducted for a period of ten days, but these refer to the two days where the specific answer is available.

JUDGE SCHOMBURG: May I ask if the Defence aware of those parts given now to the Judges?

MR. MORRISON: I have just this moment been handed copies of them. I simply haven't obviously had time to do than to count the number of pages. But my learned co-counsel was present throughout the interview, so there is no difficulty there.

JUDGE SCHOMBURG: Thank you. I take it that, of course, these documents are confidential, even though they are not yet marked "confidential"?

MR. YAPA: Yes, Your Honour.

JUDGE SCHOMBURG: Thank you. I don't hope that there are any other issues at stake for the moment.

So once again, I give the floor to the Defence. Please, Mr. Morrison.

MR. MORRISON: I don't know whether any of the Bench has had the advantage of reading the book by Faulkner, "The Bridge of San Luis Rey". That book concerns a Franciscan friar, a holy man, a religious man, who one day in the 16th century is present in Peru by the bridge over the ⁴⁸² river, the San Luis Rey. That bridge was a raffia rope bridge that spanned a very wide chasm and an extremely deep chasm. And whilst the friar was sitting in contemplation on a nearby hillside observing some people crossing the rope bridge, it broke and a number of people were participated into the chasm and, of course, died as a result of their fall.

The friar was much struck by this and took the view that God placed him there that day in order to observe this and try and resolve the mystery of what brought all those people together in that place at that time so that they should die as a result of that accident. And the rest of the book is an interweaving of the stories of the individual people, until they all come to the same place at the same time on the bridge of the San Luis Rey. And it is a powerful reminder of how you can be, through no fault of your own, sometimes in the wrong place at the wrong time.

I think it's worth also recording that the -- the friar wrote his findings in a book which so upset the religious authorities in Peru at the time that they tried and convicted him for heresy and burnt him at the stake. All I say is don't shoot the messenger, in this case. I'm not going to go through the Defence sentencing brief in great detail, but I am going to refer to parts of it, and I'm going to start by reading the first paragraph into the record of my closing speech. It's this: "it's neither the object of this brief nor the duty of defending counsel to seek to persuade any Court or Tribunal to pass the sentence that in all the circumstances of the case would be unduly lenient. It is, ⁴⁸³ however, the duty of the Defence, the Prosecutor, and the Court combined together as being concerned with the administration of justice to ensure that any sentence fulfils all of the objectives of fair and equitable jurisprudence and reflects not only the broad aspirations of those three entities to meet those obligations but also upholds the primacy of humanitarian principles." And that's peculiarly apt, in my respectful submission, to this Tribunal.

All courts are concerned, whether they like it or not, with some degree of social engineering. Much of it gets lost in the day-to-day business of the court. People simply see courts as places where people go to be tried for offences and either acquitted or convicted, and should they be convicted, thereafter to be sentenced. But even in the smallest of national courts, in the least important of national tribunals, in terms of their jurisdiction, what they are in fact is part of the fabric of society, part of the constitution, part of the raison d'etre of how we all come to live in communities, and this Tribunal is not only no exception but it's a particular and vivid example because the whole concept of the ad hoc tribunals, both this Tribunal and its sister in Arusha, is to do what it can to ameliorate dreadful things that happen, and there's no gainsaying that in both circumstances, in both countries, in both Rwanda and the former Yugoslavia, dreadful things happened. And this defendant has pleaded guilty to participating in what were, on any analysis, dreadful things.

You cannot mitigate easily dreadful things. However you look at them, from whatever angle you look at them, whatever light is cast upon ⁴⁸⁴ them, they remain dreadful things, and so the best that anyone can do in mitigating a case is to say, "What has the defendant done to ease that burden of dreadfulness?" And there are three essential features that go to the heart of that in this case: The first is his plea of guilty; the second is remorse; and the third is his intention to assist in the broadest sense in reconciliation, and by "reconciliation" I mean not only reconciliation in a practical sense, as was alluded to in the report of Dr. Grosselfinger, but reconciliation in the sense that is contained in the final paragraph of Annex C to the Prosecution brief. That's all part of the process. Indeed, all three of those, in reality, are interlinked; they are all part of the process.

Before the war, Dragan Nikolic was an ordinary man leading an ordinary life, never got into trouble with the law, had the normal range of social activities, was, it seems, well liked, was a friendly person, and in Vlasenica, which was predominantly Muslim, in terms of the numbers of people living there, his friends were drawn from both sides of the community.

If we could draw a line down there before his and the victims and, indeed, the participants in this trial start to cross the bridge of the San Luis Rey, then there would have been nothing remarkable about that story. One might have thought that he would have gone on perhaps to marry, perhaps to have children, working continuously at the Alpro factory, watching his family grow up, eventually retiring and dying in the same community, leaving further generations. But the -- the bridge snapped, and the world was never the same again. And it cannot be ⁴⁸⁵ remotely thought that he is responsible for causing the bridge to snap, because people far higher up the chain of command, people who had far more to do with the policies of government are responsible for that. But what he did, like the people on that bridge, he found himself effectively in the wrong place at the wrong time, and he can now not understand what it was that caused him to commit those horrid acts. Nobody can. The best that one can say is this, that there are examples throughout history where ordinary people are put into extraordinary situations. If they're not trained for it and they're not mature enough to cope with it and they have a dark side to their character, that's when the dark side of the character is going to come out, and it came out in Dragan Nikolic.

The likelihood is, on the evidence as a whole, that we're looking at a graph of behaviour which is a pretty much level line until the war. The graph then dips into the offending, and that dreadful behaviour, and then slowly, not instantly, the graph works its way at a 45-degree angle pretty much back to the level. That's a process which has taken Dragan Nikolic 11 years. There's nothing magic about the amount of time that takes. What matters is that it does happen.

And here I come to the guilty plea. Inherent in any plea of guilty, in this case or any other case, are a number of elements: Honesty, self-awareness, and therefore personal rehabilitation, because until one faces up to the fact that you've done wrong and confesses it, you can't say you've reached the stage of personal rehabilitation. Responsibility for actions, not just for himself but, therefore, ⁴⁸⁶ responsible for the distress of those affected; acceptance of the inevitability and the need for punishment; remorse in the narrow sense of admission of personal fault; but above all, an essential prerequisite for the fuller remorse that he feels and has tried to put into effect through this process of cooperative reconciliation.

In the context of what happened in 1992, the plea of guilty also allows for the vital, indeed essential, element of reconciliation between the Muslim and Serb community. And it's compatible with the aims of the UN Security Council in creating the philosophical and practical mandate for this Tribunal, and we know that's been given determinate status not only in the Rules and acts of this Tribunal but mention in a number of cases. It is a vital importance.

Finding people guilty who obdurately refuse to accept it is of extraordinarily limited potential for reconciliation. It means you are able to punish those people, but that's pretty much where it stops. Victims may get some satisfaction out of seeing people punished, but it doesn't go very much further than that. What is essential really in any court or tribunal is that the conditions are established where people plead guilty, where they are confronted with the evidence, where they are confronted with their own actions, and they have, albeit after a passage of time, the inherent integrity to meet up to their faults and their responsibilities.

While I'm on that topic of time, the submission is this: We know in this case that Dragan Nikolic was in the Detention Centre for something like three years before finally this case was dealt with by a plea of ⁴⁸⁷ guilty. A very large passage of time was taken up with the essential consideration of the question of male captus. We all know how long that took and the convoluted steps. It's not a question of saying there's any fault in that; that's just -- that's just a matter of history. That having been done, it is known to the parties in this case, to the Prosecution and the Defence, that about 12 months ago it became obvious that there was likely to be a plea of guilty in this case, but it wasn't an easy road. I ask Your Honours to remember - I'm not sure if all three of the Judges present were at the meeting, the Rule 65 ter meeting on the 2nd of September of this year - but I know His Honour Judge Schomburg was, when Michael Johnson, the chief of prosecutions, attended that meeting and made it perfectly plain in straightforward language that the delay in reaching the plea agreement did not lie at the foot of the defendant but lay elsewhere. And he was gracious enough to make that concession. And I rely upon that concession because it has been mentioned that he only pleaded at a time when people were here to give depositions. Well, that was not his fault, that was not his intention, and indeed he, of course, also had no control over the timing of those depositions. He did what he could and other people thereafter took over control of the timings.

So I ask if there's any suggestion that there's a delay in the -- in the plea of guilty, which is in some way detrimental to the defendant, that that be excluded immediately, because what matters is not only he pleaded guilty but that it's a full plea of guilty. In a sense, it's not a plea bargain. As I understand plea bargains - and they're not ⁴⁸⁸ common in my jurisdiction; I know they're very common in the United States - what happens is that a person says -- is confronted with a multitude of charges often and offers pleas to a certain number of those charges in spite of the fact that there is perfectly good evidence in respect of all of the charges, but in order to avoid a trial and the costs and difficulties of a trial, the Prosecution accept that partial plea and there is a sentence agreed upon. This is not that case. This is a case where although the indictment was reduced from 88 counts to four, the reality is that the -- the gravity of the offences is equally contained within those four counts as it was within the original 88. As my learned friend said, it's just a more refined indictment, for which everyone in the end should be grateful. But he's pleaded guilty to the whole of that indictment and has not sought to plead to less. Only when that was suggested - I make it perfectly plain - the question of pleading to persecution only was suggested in order to avoid the jurisprudential glitch as to cumulative sentencing that has been recognised in this case. But I can say at once that that was not a -- a suggestion by the Defence that was met, not by any of the Prosecution team who sit in court today but was not met favourably. And rather than risk a conflict, it was determined that because the defendant was not contesting his guilt, it was better to plead to the indictment as a whole rather than to force a narrow issue when there was obduracy as to that. So in fact, although there's been a problem there, it was not of the defendant's making. It is likely that we have resolved it, and that's well and good. May I very briefly ask Your Honours to turn to the sentencing ⁴⁸⁹ brief, page 8, the Defence sentencing brief page 8. It's the last paragraph, where is it is submitted that: "The fact of pleas of guilty and the recognition of culpability and contrition that that involves, coupled with the desire to and effect of genuine subsequent cooperation, is of vital importance to the aims of the ICTY in particular, and the promotion of international criminal law in general."

A submission which I wrote and now endorse is this: That such an attitude needs to be encouraged and actively seen to be encouraged by a substantial reduction in the sentence -- in any sentence. And what I mean by that is in a sentence that would otherwise be passed if there wasn't such a plea and reconciliation, in recognition of the value of admission and cooperation, and probably, most importantly, the promotion of such recognition in the eyes and acts of other accused persons. It tends - and history shows us that it tends - that when somebody does something, other people follow. That can work for evil as well as it can for good. And history is littered again with examples of evil men who have led other people along. But by parity of reasoning, where somebody does something which is good and useful, the hope is that that will lead other men along as well. And I am instructed by the defendant in this case to express the hope that other people will see what he has done and have the courage to do the same, because he recognises the importance of it and he's keen that others recognise the important of it as well. Remorse. Set out in the report of Dr. Grosselfinger, if I may say so - and my submission is, and I hope it's a submission which is well received - a highly qualified, mature and experienced professional who ⁴⁹⁰ recognises, of course, that it's possible for someone to deceive her but all who saw her might think that that was pretty unlikely, and you'd have to be a first-class actor to deceive Dr. Grosselfinger when it came to an assessment of whether or not you were speaking to her in a truthful and genuine way. And she's had ten years experience as a probation officer, and I know that Your Honours from your own experience and your own practice, that you can pull the wool over a lot of people's eyes, but pulling the wool over the eyes of the probation service is not an easy task. And she formed the view that he was being honest and straightforward. That's underscored in two ways: First of all, because of the fact he'd pleaded guilty; secondly, because of the cooperative reconciliation, which is, as we know, substantial.

I'm not going to go through in detail the report of Dr. Grosselfinger. It is put -- it's not a Defence document, but it's adopted by the Defence as being a document which is extremely helpful, is a document which is effectively evidence of the truth of its contents, and nobody has suggested otherwise.

The reality of the position is this, that since he pleaded guilty, the defendant has done everything he possibly can do, bearing in mind he's still in custody, to make things better, to repair that bridge. You have the law on sentencing in the former Yugoslavia. I've set it out in the brief. The Prosecution and the Defence are not at issue on that. We're both well aware of what the applicable law was in 1992. It's found its way into the jurisprudence of the Tribunal, and I'm not entering into a discourse on the jurisprudence of this Tribunal, neither as to substantive ⁴⁹¹ law or procedural law, but particularly not as to previous sentences. They're there for us all to see, previous sentences in previous cases. Last week a sentence was passed against a particular detainee of eight years imprisonment for a number of offences, including five murders. It's impossible to equate one case with another, exactly, but all I say is this: Take into account immediately that the recommended sentence in this case, of course on the face of it, arguably a more serious case, is almost twice the sentence that was passed in that case. The sentence which has been nominated by the Prosecution in this case is well within the ambit of existing sentences passed by this Tribunal, well within the ambit of the sentencing in the former Yugoslavia, as was applicable in 1992, the principle of lex mitior applying, and of course well within the ambit, according to the evidence of Professor Dr. Sieber, of a number of other significant and mature jurisdictions.

We have the defendant's character; we have the character witnesses. It wasn't suggested quite properly by my learned friends that the Defence witnesses were lying. The impact they have isn't a matter for the Prosecution; it's a matter for the Court. But these were the people who came to court to say from their heart what they could say about the defendant and my submission is they said it well. It's not an easy thing to come to the court and give evidence, and they discharged their duty to the best of their ability. But they did establish two things, in my submission, first of all underscoring that before the events of 1992 Dragan Nikolic was a blameless man, and I mean that. He piled the blame on himself and he has no one to blame but himself for what happened and ⁴⁹² where he finds himself now. He knows that.

And then after the war, after he finished, we're on to that 45-degree slope. He was a man when he was in Serbia about whom his cousin Ljiljana was able to say nice things. Now, one might say, "Of course she'll say nice things; she, after all, is his cousin." But why should she say nice things about the man in a public forum like this and subject herself to the possibility of being disbelieved and ridiculed if it isn't true? And again, it wasn't suggested by anybody that it wasn't true. So if we see this as a man who has descended into the pit, into the chasm, and has partly by his own effort, partly by the effluxion of time come back to the man he was before, then that is a complexity with which the Trial Chamber has to wrestle.

His age is a factor. It is disingenuous to suppose that it doesn't matter. Take an extreme example. A man who is seventy is sentenced to 10 years' imprisonment; that is almost certainly a life sentence for that man on any actuarial or statistical basis. If a man of 20 is sentenced to 10 years, it's not. Dragan Nikolic falls not in the mid-point between those but, rather, further up from the mid-point of those. The sentence which has been predicated by the Prosecutor is a substantial part of the rest of his life. And Your Honours will have seen the chart from the World Health Organisation incorporated into the Defence brief. On an actuarial basis, on he has about, from now, some 16 years of healthy life. Of course it might be less; of course, it might be more, but that's the average. It isn't a short sentence.

This is not a sentence which has been plucked out of the air. ⁴⁹³ Indeed, from the very time that it took to come to the recommendation that was come to, one can see that it went through a heart-searching process, if I may put it like that, by the Prosecution, and a lot of analysis from both sides. It is a mature and sensible recommendation, bearing in mind the plea, bearing in mind the remorse, bearing in mind the cooperation, because unless those three elements are encouraged, then we are all in one way or another going to be losers.

I'm going to call upon not very long from now Dragan Nikolic to make a statement concerning -- I don't know exactly what he's going to say. That's going to have to come from him. But I know it's essentially on the subject of remorse.

What I ask the Trial Chamber to do is this: You can't step back in some ways from the horror of seeing the people participated into the chasm when the bridge broke, but what you can do is recognise that we all have a part in rebuilding the bridge. Thank you.

JUDGE SCHOMBURG: Thank you, Mr. Morrison. May I ask the Prosecution, do you want to respond?

[Prosecution counsel confer]

MR. YAPA: No, Your Honour, thank you, I don't have anything.

JUDGE SCHOMBURG: Yes. Then it would be the appropriate time now, following the custom --

[Trial Chamber confers]

JUDGE SCHOMBURG: Judge Mumba has a question to Mr. Morrison. Please.

Questioned by the Court: ⁴⁹⁴

JUDGE MUMBA: Thank you. Mr. Morrison, I've taken into account everything that has been said, and I've been thinking about your own submissions regarding the character of the accused, especially when you alluded to the fact that before the Susica camp incidents he was a straight person, no criminal record. But what disturbs me is the sudden turn in his own conduct. When you look at the expert report of Dr. Grosselfinger, the party discussing the accused himself, according to the document I have it's on page 4, where she discusses the beginning of his career in the camp on the second paragraph.

She reports that "According to the accused, he was mobilised to act as a guard over the Muslim detainees. He understood his job to be security, curtailing the departure of detainees or controlling those permitted to leave for work or other reasons." So we have there this report indicating how he understood his duty to be at the camp. We have also in evidence that his own brother at the camp was pleading with him to stop the beatings, which means that it was not a necessary part of his job, even as he understood it himself, according to this report, to beat the detainees or to ill-treat them in any way, other than guarding them to prevent their departure.

That aside, when we look at the report of Dr. Sieber, in his findings according to the sentencing practice in the former Yugoslavia, he did post the question, of course, to the Bench that it's up to the Judges to decide whether we're going to look at the sentencing practice in 1992 or 2003. If you look at his report, you will notice that just before 1992 or after 1992, especially in B and H, what was considered to be a ⁴⁹⁵ considerable part of a lifetime at that time was something like 20 years, and that was the most serious, the most -- the highest custodial sentence. When we move on to 2002-2003 and just before that, the beginning -- the late 1990s, when the laws were being changed in the various republics, you notice that for serious offences the custodial period increases, up to about 45 years. That shows that the social values in the former Yugoslavia, especially in B and H, are regarded serious offences and regarded that it was a necessary moving-on to increase the custodial sentence. Of course, that is caught by the legal principle of lex mitior, that we can't take the increase in those sentences against the interests of the accused in this case, but one can see the trend in social values in that part of the world where the accused comes from. The point is that the accused at the time when he went to Susica was aged 35 years old. At that age, a man is grown up. He is an adult. He is expected to be responsible. He himself had lost a father when he was about 23, from the report that we have, so he understood what it was like growing up without one parent. He had a mother. He had a sister. He understood family relations. He understood the value of such relations. Yet in the camp in which he himself understood that his job was security, making sure that the detainees -- the Muslim detainees didn't leave, he goes, on his own will, not that there were any orders - because we haven't got that evidence before us - in the face of his own brother's protestations, he exhibits such level of cruelty, beating people to death, getting the women out of the camp, knowing very well that they were going to be abused, letting the other guards abuse ⁴⁹⁶ them. For some of the victims, like the first witness we had, she was only there for a short period, a month or so, but there was so much cruelty that she experienced, so much abuse, so much that she was able to see. These victims were -- some of them were there with their children, some of them grown-up children, and obviously when the witness who came was talking about the fact that she can't, you know, have a relationship with her son as a mother, the same goes for the other victims who were parents, who were detained in the same place as their children. This disturbs me, because even if the Prosecution have recommended a sentence of 15 years and according to them they have taken into account all the matters that have been said in this case, they have taken into account the sentencing -- the schools of thought on sentencing, rehabilitation, maybe retribution also, I'm still very disturbed that the accused seems to come out as a personally cruel person, and it appears to me that he took this opportunity, having been mobilised and placed in this camp, to demonstrate a very high level of cruelty for no reason at all, having understood his job as that of security and security only. Those are my concerns.

MR. MORRISON: If I can assist. With the greatest of respect, those are likely to be everybody's concerns. And I'm grateful to Your Honour for enunciating them. And because they're everybody's concerns, that's why, first of all, they form part of the indictment; and secondly, it's how the defendant has met those concerns since he's been able to do so.

We are talking about the acts -- the cruelty, and it is ⁴⁹⁷ cruelty -- of a man when he was 35 years of age over a period of three to four months. If you just took the man in a normal social situation who went out at night and beat people and killed them, when he was living in a society which was for all other purposes a normal and stable society, you would think that this man must be a psychopath.

When you take a person, however, who is committing this sort of an offence within the context of insanity, of an unnecessary ethnic conflict, of a war where on both sides appalling atrocities were committed, not simply by Dragan Nikolic but by hundreds if not thousands of people, coming from a society in Vlasenica where he's the only person who has been indicted.

But it's an accord between the Defence and the Prosecution in this case that there are many other people in that area who are at least as culpable as Dragan Nikolic, who are now going about their daily lives unindicted and against whom can be seen that they were not in any way psychopaths. Those persons too are equally morally culpable. They are not yet legally culpable, because they haven't been brought to court. But the future may change. And all I say as to that is how is society going to meet the just needs of dealing with those people without people like Dragan Nikolic to assist? It's of vital importance to settling one of the crucial issues that Your Honour has raised.

He was for a relatively short period of time, 11 years ago, extraordinarily cruel. He knows that, and he's pleaded guilty to that. But he's made all the amends now and will make all the amends that he can; many others haven't; many others don't; many others won't. And that's ⁴⁹⁸ sad. But he's doing his best.

As to the question of social engineering changing over the years, well, of course that's exactly the jurisprudential basis for the principle of lex mitior, is that as society changes and sentencing norms change, you don't visit the new norms upon old behaviour, because it's patently unfair so to do. To take a dramatic example: If in 1990 a particular dishonest or unlawful act was visited by a non-custodial sentence only and yet ten years later society decided it was so heinous that the same act deserved the death penalty, nobody would begin to suggest that it was proper to pass the death penalty. And exactly the same principles apply across the board. That's the -- that's how social engineering is met. But I'd make another point: The social engineering that was going on in 1992 was insane. It was ethnic cleansing. The social engineering we're looking at now is completely different; it's rebuilding that bridge. And with the absence of people assisting in the rebuilding of the bridge by admitting their culpability and doing what they can, it's going to be a much harder bridge to build, and indeed, I venture to submit, it may never be built unless people do what Dragan Nikolic is doing. I didn't put it into the original submissions, but I raise it because Your Honour has raised it. What he did in the camp was dreadful, ignoring his brother was dreadful and foolish. But one can set a number of examples to say that it wasn't unmitigated cruelty. There were acts -- albeit relatively small, compared to the unlawful acts. He would give food that was brought to the camp, to the people it was brought for when he could. There were others who would stop him doing it, and when ⁴⁹⁹ those people weren't there, he would make sure the food was given to the people. That's in evidence from a Prosecution witness. He would order the distribution of milk to children when he could and wasn't stopped from doing it by other people; that is in evidence from a Prosecution witness. There was one occasion when he was giving a pillow and a blanket to an elderly person and was stopped from doing so, made a complaint, and then was allowed to do it. So the picture, although bleak, is by far all bleak even in that dreadful three- to four-month period. There were acts of kindness even then.

I'm not sure if I can assist any further.

JUDGE MUMBA: Thank you.

[Trial Chamber confers]

JUDGE SCHOMBURG: Judge Agius, do you have any questions? It is not the case.

Then we turn to the last chapter of the sentencing hearing; this would be what it is called in the civil-law system the final word, or in our terms, it has become custom in this Tribunal that the accused enjoys the right to give a statement at the end of the hearing, a statement where nobody can add any questions, and this statement will conclude the hearing.

I would appreciate if it would be made possible that Mr. Nikolic could sit down there where normally the witnesses would sit, being aware that it is a statement only but in order to better be able to follow his statement. So may I therefore ask that Mr. Nikolic please be seated here in front of us. Thank you. ⁵⁰⁰ Mr. Nikolic, please be seated, and you can make your statement and you may address all those issues you want to address. It is for you to make the statement. Please, sit down.

THE ACCUSED: [Interpretation] Your Honours, I am fully aware of all the things with which I am charged. I am aware of the acts that I have committed, and I confess to them count by count as they were read out to me here. I pleaded guilty, and I assume full responsibility for the acts that I have committed.

How do I feel about the things that I did in those three months that I spent in the Susica camp? Only I know that. But I genuinely feel shame and disgrace. But as you heard here, on the one hand, I carried weapons in Susica, I wore a uniform; and on the other hand, there is the fact that there were women there, aged the same as my mother, there were children there, there were people who used to be friends of mine, whom I used to see over the years in cafes, on sports fields, and playgrounds, with whom I spent summer vacations. And when I think about all of this, it turned into a nightmare that is pursuing me these days and that I see over and over again in my sleep. The question arises why did I do all that? I had enough time to think about it, 11 years. But it is still hard to find an answer to that question.

I can tell you with complete sincerity I never felt sorry for myself because I was not too young to understand at the time; I was a mature man, 35 -- 35 years old. And my compassion was always directed only at the victims, not only those that I hurt myself or whose families I hurt. All those who were down there at Susica were victims. ⁵⁰¹ What can I say about it all? I can say that I repent sincerely for all of that. I genuinely repent. I am not saying this pro forma, this repentance and contrition comes from deep inside me, because I knew most of those people from the earliest stage. I knew them well; some of them were my neighbours. I want to avail myself of this opportunity to say to all those who -- whom I hurt, either directly or indirectly, that I apologise to everyone who spent any time in Susica, be it a month or several months.

I would like, now that I have this opportunity to speak in public, to make even those victims feel the sincerity of my apology and my repentance, even those who were never at the Susica camp and who are now scattered all over the world as a result of that conflict and the expulsions which made it impossible for them to return home. I am aware, Your Honours, that I will spend a long time in prison, but at the same time I hope that the day will come when I will get out. It is my desire to return to Vlasenica one day to do whatever is in my power, if it is at all possible, for those people to become close again, to return to their homes. I would not for a second like to be a threat to anyone by my mere presence, and if at any moment I should feel that my presence disturbs anybody, I would leave immediately. I would go to see my family, my relatives, and I would keep returning there as long as it takes until the moment comes when I feel that nobody minds my being there any more, to try to help those people start a new life in that town, which after all had not been completely destroyed.

I have admitted to my guilt, and as my counsel said - I wish to ⁵⁰² repeat it once again - I hope that all the three parties will be encouraged by my confession to assume their part of the responsibility for those terrible acts, because that is the only thing that would make it possible for people to become close again, for the three peoples to become close again in those parts. It should be clear to all of us that we are after all an important factor in this reconciliation and peaceful coexistence. This Tribunal also plays an important part in it. And I am trying to assist the Tribunal in this way. We must never forget about the victims.

I now speak only in my own name, and I wish to say that there were among the victims people with whom I grew up and I wish to reiterate once again my deep and sincere repentance over everything that I had done down there. I hope I will get a chance to redeem myself and to alleviate their suffering.

I received a message when my cousin visited me, and I want to thank you, Your Honours, for giving me this opportunity to speak and to say all this, to thank you in my own name and on behalf of my mother and my sister, who are here. I had told them that this would be a public hearing. They wanted me to convey to everyone here that their door is always open, that anyone can come to talk to them, including victims and perhaps even neighbours who were never at Susica.

I can hardly find the right words, but even so, mere words are not enough. Acts are needed, and I do intend to act for reconciliation for the return of those people who were displaced and expelled. That is my deepest wish. ⁵⁰³ Thank you again, Your Honours.

JUDGE SCHOMBURG: Thank you, Mr. Nikolic, for these final remarks. This concludes the sentencing hearing in this case. The judgement will be handed down in due course, in all likelihood as and already announced, the 18th of December, at 2.00.

The trial stays adjourned until then.

--- Whereupon the hearing adjourned at 1.04 p.m.