⁷³

Tuesday, 31 July 2001

[Sentencing Proceeding]

(Open session)

[The accused entered court]

--- Upon commencing at 4.30 p.m.

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

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

JUDGE ROBINSON: May we have the appearances?

MR. McCLOSKEY: Good afternoon, Mr. President, Your Honour. My name is Peter McCloskey on behalf of the Office of the Prosecutor, and I'm accompanied today by Gramsci Di Fazio and Aisling Reidy and Janet Stewart.

JUDGE ROBINSON: And for the accused.

MR. BRASHICH: Good afternoon, Your Honour. Deyan Brashich and Nikola Kostich for the Todorovic Defence.

JUDGE ROBINSON: Thank you. This hearing has been convened so that the Trial Chamber may deliver its sentencing judgement in the case of Prosecutor versus Stevan Todorovic.

Judge Fassi Fihri, who is a member of the Chamber, is absent because he is indisposed. However, he concurs with the judgement. I will, at the outset, present a brief chronology of the case before turning to the matters addressed in the judgement itself. The accused, Stevan Todorovic, was initially charged in a joint indictment with five other accused for crimes alleged to have been committed in the municipality of Bosanski Samac in Bosnia and Herzegovina ⁷⁴ between April 1992 and December 1993. Stevan Todorovic was charged in his capacity as Chief of Police in Bosanski Samac with ten counts of crimes against humanity, including persecution, deportation, murder, and inhumane acts; nine counts of grave breaches of the Geneva Conventions; and eight counts of violations of the laws or customs of war.

In November 2000, approximately two years after the initial appearance of the accused, a joint motion was filed notifying the Trial Chamber of an agreement between the accused and the Prosecution pursuant to which Stevan Todorovic would plead guilty to Count 1 of the indictment and the Prosecution would withdraw all other counts against him. On December 13, 2000, Stevan Todorovic entered a plea of guilty on Count 1 of the indictment. This plea was subsequently confirmed before the full Chamber. Having satisfied itself that the requirements set forth in Rule 62 bis had been met, the Trial Chamber entered a finding of guilt against Stevan Todorovic. The proceedings against Todorovic were formally separated from those against the other accused at this time. At the sentencing hearing held on 4th May 2001, the Trial Chamber admitted certain witness statements submitted by the Defence, as well as two expert reports on the medical and psychological condition of Stevan Todorovic. The Defence was given leave to call two witnesses in addition to one of the medical experts, Dr. Lecic-Tosevski. Prior to the Defence presenting its closing arguments, Stevan Todorovic himself made a statement to the Chamber.

Following the practice of the Tribunal, for the purposes of this hearing, I will briefly summarise the findings of the Chamber in this ⁷⁵ case, but I emphasise that this is only a summary and that it forms no part of the judgement. The only authoritative account of the Chamber's findings and of its reasons for those findings is to be found in the written judgement itself, and copies of the judgement will be made available to the parties at the close of this hearing. This sentencing judgement is based upon the Trial Chamber's acceptance of Stevan Todorovic's guilty plea and the consequent conviction of the accused on Count 1 of the indictment for persecution as a crime against humanity under Article 5 of the Statute of the Tribunal. At the outset, the judgement addresses the gravity of the crime of which Todorovic stands convicted. As the Appeals Chamber stated in the Celebici case, the gravity of the offence is the primary consideration in imposing sentence. This involves an assessment of both the criminal conduct forming the basis for the conviction as well as any aggravating circumstances. The judgement sets forth in summary form details of the criminal conduct underlying Stevan Todorovic's conviction for the crime of persecutions, including his participation in the beating and murder of Anto Brandic, the beatings of several other individuals, among them (redacted) (redacted), Silvestar Antunovic, Hasan Bicic, Kemal Bobic, (redacted) (redacted), Abdulah Drljacic, Zlatko Dubric, (redacted), and Hasan Subasic, and the sexual assault of six men at the police station in Bosanski Samac. Stevan Todorovic has also admitted participating in the unlawful detention, the cruel and inhumane treatment, and the deportation and forcible transfer of Bosnian Muslims, Bosnian Croats, and other non-Serb civilians in the municipality of Bosanski Samac. ⁷⁶ As a component of the overall gravity of the offence, the Chamber has taken into account as aggravating factors the accused's position of superior authority as chief of police in Bosanski Samac and the cruel manner in which he perpetrated several of the criminal acts underlying his conviction. In light of the above, the Chamber concludes that Stevan Todorovic's crime was particularly grave.

The Chamber then examines any mitigating factors and finds that there are four factors in this case which may be considered in mitigation of sentence, namely, the accused's guilty plea, his substantial cooperation with the Prosecution, his expressed remorse for his crimes, and the question of his allegedly diminished mental capacity. The Chamber observes that Todorovic is only the third accused before this Tribunal to have been convicted on the basis of a guilty plea. The Chamber recognises the benefit to the Tribunal in terms of time and resources when an accused enters a plea of guilty and, in particular, when such a plea is entered early on in the proceedings or, in any event, before the trial itself has begun. The Chamber considers that a guilty plea should, in principle, give rise to a reduction in the sentence that the accused would otherwise have received, and the Trial Chamber observes that Stevan Todorovic's trial had not yet commenced when he decided to plead guilty. It recognises the considerable contribution of Todorovic's guilty plea to the efficiency of the work of the International Tribunal and to its search for its truth, and it takes it into account in mitigation of sentence.

The Chamber next takes note of the plea agreement pursuant to ^{77BLANK PAGE 78} which Stevan Todorovic has agreed to cooperate with the Prosecution by providing "truthful and complete information" and by testifying in the case against his former co-accused, and, as requested by the Prosecution, in any other proceedings. The Chamber has regard to the Prosecution's submissions as to the quantity and quality of the information provided by Stevan Todorovic thus far, and it concludes that his cooperation with the Prosecution to date has been substantial and that such cooperation ought to be considered as a mitigating circumstance in this case. It is found that to accept remorse as a mitigating factor in sentencing, the Trial Chamber must be satisfied as to the sincerity of the expressed remorse. In this regard, the Chamber recalls the statement made by Todorovic during the sentencing hearing in which he expressed repentance and remorse for his crimes and the willingness and desire to contribute to the process of reconciliation in Bosnia and Herzegovina. The Chamber therefore treats his remorse as a mitigating factor in determining sentence.

In relation to the question whether the accused's alleged diminished responsibility may act in mitigation of sentence, the Chamber found that neither of the two expert reports filed on Stevan Todorovic's medical and psychological status suggest that his condition at the time the crimes were committed was one which would give rise to mitigation of sentence.

As it is obliged by the Statute and the Rules to do, the Chamber then turns to consider the general practice regarding prison sentences in the courts of the former Yugoslavia. It found that for the crime of which ⁷⁹ Todorovic stands convicted, the punishment prescribed under the Criminal Code of the SFRY ranges from 5 to 20 years' imprisonment. While it must consider the practice of the courts in the former Yugoslavia in imposing sentence, the Chamber recalls that it is not bound by such practice. In the final section of the judgement, the Chamber considers the relative weight to be accorded to each of the above-mentioned factors in determining sentence. At the outset, it is noted that the Defence had urged a comparison between this case and that of Erdemovic, in which the accused was sentenced to five years' imprisonment for his conviction on a count of murder as a violation of the laws and customs of war, but the Chamber finds that case readily distinguishable in that the Trial Chamber in Erdemovic considered duress as a mitigating factor, an element that is absent in this case. For that reason, the Chamber considers that the Erdemovic case is not helpful in providing a benchmark for Todorovic's sentence. The Chamber reiterates the very grave nature of Stevan Todorovic's crime. In particular, it is recalled that the crime of persecution is the only crime against humanity which requires that the perpetrator act with a discriminatory intent. It is found that the gravity of Stevan Todorovic's criminal conduct was aggravated by his superior position and by the manner in which the crimes were committed. Indeed, the Chamber holds that, while mitigating factors have been given considerable weight in the determination of the sentence in this case, this in no way detracts from the gravity of Stevan Todorovic's crime. It is found that Stevan Todorovic's plea of guilty and his substantial cooperation with the Prosecution are of primary importance as mitigating ⁸⁰ factors in this case. The Chamber states that had it not been for these factors, he would have received a much longer sentence. I shall now read out the operative paragraph of the sentencing judgement of this Chamber. It is as follows:

Stand, Mr. Todorovic. For the foregoing reasons, having considered the arguments of the parties, the evidence presented at the sentencing hearing, and the Statute and the Rules, the Trial Chamber sentences Stevan Todorovic to ten years' imprisonment and states that he is entitled to credit for two years, ten months, and three days in relation to the sentence imposed by the Trial Chamber as of the date of this sentencing judgement, together with such additional time as he may serve pending the determination of any appeal. Pursuant to Rule 103(C), Stevan Todorovic shall remain in the custody of the International Tribunal pending the finalisation of arrangements for his transfer to the state where his sentence will be served. The Registrar is reminded to distribute copies of the judgement to the parties.

The hearing is adjourned.

--- Whereupon the Sentencing Hearing adjourned at 4.48 p.m.