¹

Monday, 22 July 2002

(Open session)

[Sentencing proceedings]

[The accused entered court]

--- Upon commencing at 9.05 a.m.

JUDGE MUMBA: Good morning. Please call the case.

THE REGISTRAR: Good morning, Your Honours. Case number IT-95-9/2-S, the Prosecutor versus Milan Simic. Thank you.

JUDGE MUMBA: These proceedings are in open session and consequent to that, the Trial Chamber has lifted the confidentiality on all the filings for this sentencing hearing, including the hearing during the plea that was taken. The only document that will remain confidential is the plea agreement between the parties. I notice that the accused, Milan Simic, is in the courtroom. We can start.

Mr. Zecevic? The Trial Chamber was informed about the change -- the possible two witnesses that are now informal -- the evidence will now come in the form of affidavits; is that correct?

MS. BAEN: Your Honour, it's correct that we are going to offer one of the witness's testimony through affidavit. The other affidavit was objectionable to the Prosecution so we are going to withdraw that, and to try to save time, we have other character witnesses.

JUDGE MUMBA: So which one is being withdrawn since it hasn't been filed -- so you've agreed with the Prosecution that that is withdrawn?

MS. BAEN: Yes, Your Honour. So at this time we just want to offer into evidence the one affidavit that there is no objection to, which ² is the wife of the defendant.

JUDGE MUMBA: What's her name?

MS. BAEN: Ruzica Jankovic.

JUDGE MUMBA: Yes. The Prosecution, is that agreed?

MR. DI FAZIO: Yes.

JUDGE MUMBA: Yes.

MS. BAEN: Copies have already been given to the registry, Your Honour, for that document.

JUDGE MUMBA: I see. Can we have the copies, please? Can we have the number, please?

THE REGISTRAR: Yes, Your Honours. It will be D43/2 and D43/2 ter. Thank you.

JUDGE MUMBA: Very well. Yes?

MS. BAEN: The only other thing, Your Honour, is the Defence will be mentioning in our argument a couple of articles from the Criminal Code of the former SFRY. We found these articles over the weekend but they are only -- they are not translated into English. So I don't know that it will require to even offer those into evidence, but we did, as a matter of courtesy to everyone, offer a copy of Articles 42 and 43 of the Criminal Code of the former SFRY.

JUDGE MUMBA: Thank you.

MR. DI FAZIO: If Your Honours please?

JUDGE MUMBA: Yes, Mr. Di Fazio?

MR. DI FAZIO: You'll see from the Prosecution's sentencing brief that we also refer to the Criminal Code of the former Yugoslavia. I've ³ got a whole copy in English --

JUDGE MUMBA: Oh, yes.

MR. DI FAZIO: -- of that. Would you like copies made of that document?

JUDGE MUMBA: In English?

MR. DI FAZIO: Yes.

JUDGE MUMBA: Yes. It contains the same clauses? Is it the same document?

MR. DI FAZIO: I assume so.

JUDGE MUMBA: Yes we would like to have copies in English.

MR. DI FAZIO: Thank you. I'll make arrangements for them to be photocopied now and they will be available shortly.

JUDGE MUMBA: Yes. Thank you very much.

MR. DI FAZIO: Thank you.

MR. ZECEVIC: If I may, Your Honours, just concerning this, it came to my attention because there is a translation in the library of the -- of this Tribunal of the Criminal Code.

JUDGE MUMBA: Yes, I was thinking about that at the back of my mind that we've had this before.

MR. ZECEVIC: Yes, Your Honour, but unfortunately the translation is not an accurate one.

JUDGE MUMBA: The one in the library?

MR. ZECEVIC: Yes. The one in the library is not an accurate one. I don't know which translation is the Prosecutor is going to offer, but I would like to check it out before it's tendered into the evidence or given ⁴ to the Trial Chamber, because the problem with the translation is that it is a very significant one; namely, the translation in the library is completely wrong, gives a completely wrong impression, because in this Article it says, if the minimum sentence is three or more years. So if the minimum sentence prescribed by the law is three or more years. And in the translation, which is the -- in the library, it has no -- it doesn't mention "or more years" at all. It just says three years. So this is a very significant mistake in the translation, Your Honours. And therefore, I have provided the copies of the same document, highlighted the portions, which the translators can translate.

JUDGE MUMBA: Yes, I was thinking about that, that if you have given it to the interpreters.

MR. ZECEVIC: Yes, yes, yes by all means. Yes, everything was given to the interpreters as well.

JUDGE MUMBA: Yes, thank you.

MR. ZECEVIC: Thank you, Your Honour.

[Trial Chamber confers]

JUDGE MUMBA: I think the Prosecution can go ahead with their submissions. Yes, Ms. Baen?

MS. BAEN: Thank you, Your Honour. My understanding is the Prosecution is only going to argue, they are not going to provide -- not going to presents any evidence today and that was my understanding, and the only further thing the Defence had was the defendant planned to make a statement under Rule 84 bis to the Trial Chamber, a very short statement. ⁵

JUDGE MUMBA: Right now?

MS. BAEN: Before we argue, Your Honour, yes, definitely.

JUDGE MUMBA: Yes. So we'll start with the Prosecution and thereafter, the Defence.

MR. DI FAZIO: Thank you. If Your Honours please, there are a number of issues that the Prosecution considers of particular importance in this case, and I will address them towards the end of my submissions. There are a number of other issues, however, that we feel should be set straight and I'd like to deal with those first, if I may. First of all is the issue of the period of time that should be taken into account for time held in custody. There is a submission that the -- from the Defence that the period of time spent whilst on provisional release should somehow be taken into account or used in the calculation of time spent in custody. And in the Prosecution's submission, that is completely misguided and completely wrong. The submission of the Defence is to be found at paragraphs 56 and 57 and that Rule 101(C) should be interpreted as equating detained in custody with provisional release. It is that submission that the Prosecution finds unacceptable and unsustainable.

The first issue that needs to be addressed on that is whether, in fact, he was under anything like house arrest while he was provisionally released. That is, as a matter of fact, in the Prosecution's submission not true. Indeed, Defence prosecutors saw him in Bosanski Samac drinking coffee during the period of time of his provisional release in a square in the town. That is anything but house arrest. But in any event, there is ⁶ nothing in the provisional -- in the conditions of his provisional release that required him to be under any sort of house arrest. There is nothing that expressly said so.

The orders for provisional release in this particular case contain conditions of his release. They are completely consistent with the usual national provisions of bail that you find in most common law countries, and in some civil law countries, they are referred to as provisional liberty.

There were certainly no conditions in that that forced him to remain in his house at all.

The Prosecution did not oppose his release provisionally in 1998 because principally because of the defendant's medical condition. But at the time, there was no suggestion by the Defence or by the Prosecution or by the Trial Chamber that that particular period of incarceration would in any way be viewed as a form of provisional release. Rule 101(C) says that credit has to be given to a convicted person for the period of time in which they are detained in custody pending surrender to the Tribunal. That's the wording of the Rule, and it is it the Prosecution's submission that if provisional release were to be equated with -- or were to give rise to time running, then the provisions of Rule 101(C) would have expressly said that, and made it clear, and made is simple, but it doesn't. So because of that, it's stretching the interpretation of Rule 101(C) way beyond its breaking point. It would have been a matter of simplicity to simply include those particular words. The order of the Court expressly contemplates that. He was released from custody. The ⁷ terminology of the order was that he shall be immediately detained should he breach any of the foregoing terms and conditions. And that obviously contemplates a distinction in the mind of the Trial Chamber between detention and provisional release.

In the Prosecution's submission, the analogy to the Italian legislation is of little assistance or use to you and the matter is simply settled by the plain wording of Rule 101(C) and that's the end of the matter. The Prosecution case firmly is that you cannot give him credit for any time that he has spent whilst on provisional release. Those are the submissions that we have on that particular matter. The other matter that I wanted to address you upon is his medical condition and the medical report. The Prosecution has had an opportunity of reading the medical report and there is nothing in it that is particularly contentious, as far as the Prosecution is concerned, and of course, it's the -- the Prosecution has not sought for there to have been any other independent medical examination. Comment is made in the medical report that the physical and mental status of the defendant has declined during the trial and his detention. It is submitted that if the stresses of being in trial and being in detention have taken a toll upon the defendant, then that burden should be lightened post-sentencing and it's a matter that the Prosecution asks you to take into account. It is a matter of, I suggest, notorious common knowledge that prisoners settle down once they have received a sentence. And in the Prosecution's submission, the anxiety and worry of not knowing what his fate is to be will, to a certain extent, in any event, disappear once he has been sentenced and once that ⁸ matter has been fixed and once he has a goal to look forward to. So in the Prosecution's submission, that is a matter that you should take into account and bear in mind when you consider his medical condition. Comment is made in the medical report that his life expectancy has been significantly lowered, and that stems, as far as I read the report, and I believe it's at page 15 of the medical report, I'm not going to refer to it but you'll find it at about page 15. The report quotes that -- sorry, let me rephrase that. The report makes clear that the life expectancy of a paraplegic person is dramatically affected by that condition and it's lower than that of the general population. Now that condition exists notwithstanding the -- Mr. Simic's period of time in custody.

The report goes on, and I quote, "The degree to which this occurs," that is the lowering of life expectancy, "May be influenced by further exhaustion of the life-coping mechanisms characteristic of conditions in confinement." It may be that the Defence will direct to you that and ask to you take that into account in fixing sentence. The problem with that is that if they do, there is no assessment in the medical report itself of the degree to which his life expectancy may be affected by incarceration, if at all. And it also fails to take into account the actual conditions in the prison where he serves his sentence, where he eventually comes to serve his sentence.

So there are two unknowns that you have and given that the report is emphatic that life expectancy is diminished by paraplegia, and given that they haven't made any assessment of the degree to which that may be ⁹ exacerbated by the period of time in custody, it's not a matter that you can give much weight to because you just don't know. So there are the two major points that I wanted to make from his medical report. The -- another submission that the Prosecution wishes to deal with initially, as part of its initial submissions, is the submission made in the Defence -- in the Defence sentencing brief that there was a fear of retaliation by the defendant as a result of his having offered what the Prosecution refers to as his decent treatment extended to Perica Misic and Hasan Bicic.

That is a matter that, in the Prosecution's submission, you ought to give no weight to. It flies in the face of common sense and the reality of the case. He was obviously a man -- Mr. Simic was obviously a man who held high office and a man of influence in Bosanski Samac. It's clear that he was able to gain access to the prison on several occasions, at least three on the Prosecution's submission --

THE INTERPRETER: Could the counsel please come closer to the microphone?

MR. DI FAZIO: At least three occasions on the Prosecution's submission, the night of the attack on the first group of victims, count 4; the return, when those two men who I've mentioned were taken out; and then on the third occasion, the Prosecution argues in the case of Witness N. So he was able to go in and out with impunity in the Prosecution's submission.

If you accept that he did have that sort of influence and sort of power, then it is not something that you could seriously take into ¹⁰ account; namely, that he had a real fear of retaliation. If indeed he wanted to protect -- if indeed the fear of retaliation was not just against himself but also against the two other men, then it doesn't make sense for him to have provided them with the cigarettes. You recall that he give them a packet of a large stick of cigarettes for them to distribute amongst their fellows in the jail. When interviewed by the offices of the OTP, and the interview is attached it to our sentencing brief, you'll find this at page 7, he made no mention of any fear or retaliation that he was concerned about. When asked -- when commenting upon the taking of Hasan Bicic to his home so that he might get his clothes, change his clothes and so on, he merely said that he just asked him to do it quickly. There is nothing in, as far as my reading of the interview is concerned, that raises any issue of a fear of retaliation.

Another matter that I raise as a preliminary is the weight that you can attach to the references that have been provided, the various witness testimonies that you have, the statements that you have, by the Defence. The comment that needs to be made about all of them, each and every one of them, and this is common to all of them, is that not one of them mentions any knowledge of, any acquaintance with the facts of this case or what Milan Simic did to these men on those -- what the Prosecution says are two quite separate and distinct occasions.

None of them comment upon the threats to sever a man's penis, none of them comment upon the swaggering style of the defendant as he walked in and announced he was the President and a Serb minister, none of them ¹¹ comment upon the chorus of cries to cut off the penis of one of the witnesses. None of them go into those details at all. None of them comment upon the background material that Milan Simic has admitted to, namely the widespread and systematic attack upon the non-Serb population. On the contrary, they paint a picture of a total lack of any discrimination towards non-Serbs in Bosanski Samac. So that's a serious failing in those witness references, a very serious failing, and one that you should strongly bear in mind when you come to consider that character evidence, if indeed it be that.

It is submitted that the appropriate way for character references to be made, and for you to -- to enable you to give them full and proper weight is for the person who is providing a testimonial to say, look, I know what he's done, I understand what he's done, I've acquainted myself with what he's done. I say it's out of character because of this, this and whatever other reason.

So they are matters that you should bear in mind. Let me take you through some examples. Exhibit E,

Sabahudin Hasanovic, a student friend of the defendant since his secondary school days. He comments on the friendship between the defendant and Dusan Mijanic who is the man who the Defence say was killed and who sparked off at least the first attack. He says that during the war, Milan Simic did not change his attitude towards people of any nationality. That would be something that the prisoners in the gym would find very difficult to accept.

Exhibit F, Ivka Markovic, a Croatian lady, she claims that people ¹² of all nationality were leaving Bosanski Samac. There is a curious lack of explanation in her statement how it is that non-Serbs were being driven out by the inhumane treatment, including deportation, through force, and that's part of the agreement that Milan Simic has entered into. She also, if Your Honours please, describes Milan Simic sobbing like a child when his friend Dusan Mijanic was killed. Now, the Prosecution suggests or submits that you should not give that any weight at all. You should ignore it. It's not because the Prosecution is keen to attack that particular conclusion, but because it will make it very difficult for to you assess how to deal with it. You don't know if, from reading the exhibit, Exhibit F, whether she was -- whether or not that particular episode took place on the day of the attack on the first group of men, count 4, in which case the Defence might be in a better position to say, "Well, this was a reaction caused by his distraught condition, even though the Prosecution would submit that that would be -- would carry little weight, even if they were in a position to make that submission. But secondly, it may be that there is no link between that particular episode when the friend was killed and the attack. There might be days and days separating the two episodes, and you can't assess that from looking at Exhibit F. So the Prosecution submits that you shouldn't take that into account in considering the -- considering these references. I don't think I need to take you through the rest of the notes that I've made regarding these references, but I ask to you bear in mind that when you do come to read them, that they consistently fail to take into account the facts that the defendant has accepted by his plea of ¹³ guilty and that form the basis of the plea agreement. And so therefore, you should attach little particular -- little weight to them. Can I now it turn to the Prosecution submissions that are of particular importance to the Prosecution?

The first matter that I want to raise with you is the whole idea, whole notion, that counts 4 and 7 constitute the one criminal episode. Paragraph 21 of the sentencing -- of the Defence sentencing brief deals with this topic, and essentially, as I've said, the submission is that it's all the one course of conduct. It's all the one transaction which constitutes count 4 and count 7. The first thing that you have to remember is that that Defence submission is entirely reliant on the evidence of Hasan Bicic. Without his evidence, there is no -- there is no possibility of the Defence being able to make that submission. And I say at the outset that as far as this sort of matter is concerned, the Prosecution accepts that mitigating factors asserted by the Defence must be proved on the balance of probabilities, whereas aggravating factors must be proved beyond reasonable doubt.

Now, the evidence of Hasan Bicic, the sole witness who can sustain this Defence, sorry, this assertion that this is the one transaction, the one course of conduct, split into two attacks, you will be able to find at pages 2737 to 2738. It's I think worthwhile for me to read it to you so that you just remember. It's only a small passage.

It's question -- answer, sorry, "It's difficult for me to say exactly, but I think it went on for about 20 minutes."

THE INTERPRETER: Could the counsel please slow down when reading. ¹⁴

MR. DI FAZIO:

A. It's difficult for me to say exactly but I think it went on for about 20 mains. That's my approximation. That's the duration of the tack.

Q. Thank you. And after this 20 minutes, what happened to you then?

A. I've already said that as far as I was concerned, the peak was reached when this shot was fired above my head, and after that we were ordered to go back to our places. Other

people were taken out. What happened to them, I don't know. All I know is that I heard them beating others too. That is to say, I deduced this from the screams and groans. I realised that they were beating other prisoners.

Q. You say other people were being taken out. Can you recall now if any -- if you remember any of the names or if you know who else might have gone out?

A. I've already mentioned some names. I think that afterwards they took several, at least several prisoners out. And I think that one of them was most certainly (redacted), (redacted).

That's the basis on which the Defence submit to you these two things happened on the one night.

The Prosecution's submission is that when you read that portion of evidence, it's not an emphatic statement by Hasan Bicic. He thinks some other prisoners were taken out. He says that other people were taken out, ¹⁵ but he doesn't know the details of what happened to them. He also doesn't mention any gun shots being fired and you that Wintess N mentioned a shot being fired over his head.

Now, that was not a completely infrequent episode in the prisons. You've heard evidence of guns being fired from time to time but still it was an exceptional sort of event, and if indeed witness N had been taken out on the same night, then the group of men who were the victims in count 4 would have heard a shot being fired over their heads -- his head, including Hasan Bicic, but he makes no mention of that. Importantly, Hasan Bicic says that several prisoners were taken out and one of them was most certainly (redacted), several prisoners. Now this is significant because Witness N said that he was the sole victim of the attack. He was not part of a group when he was taken out and attacked, and so that just simply doesn't fit in with the evidence of Witness N. So to sum up that point, Hasan Bicic says (redacted)was taken out with a group. Witness N says that that man was not taken out with a group, he was taken out alone, and that's absolutely clear in his evidence. So one of them is wrong, one of them has to be wrong, one of them has made a mistake. In the Prosecution's submission it is Hasan Bicic who has made a mistake about that portion of the evidence, about those facts.

Defence counsel took some care to cross-examine Hasan Bicic on this particular point. Ms. Baen, who was cross-examining this witness, put to him his previous statement that he had made, and you will find this portion of the evidence that I'm referring to at pages 2809 to 2811. ¹⁶

Q. Thank you. Now, today, earlier today, you were asked a question by Ms. Reidy. She asked you after an encounter with Milan if you saw any other people who had been beaten. And you mentioned the name of (redacted). Isn't that correct?

A. I think so, yes. Then Ms. Baen put this part of the statement to Hasan Bicic. I quote now from the evidence. This is Ms. Baen reading out the previous statement made by Hasan Bicic, his previous witness statement: One night a group of Chetniks rushed into our detention room and started beating us. After a while, they started calling out names. Together with me, my brother Muhamed, Ibrahim Salkic, Perica Misic, and others were called out. When we entered the corridor, which led from the gymnasium to the changing room, we met Milan Simic. He was drunk and almost crying when he addressed me. He was one of my friends and also my school mate from before the war. He started to an accuse me and told me that the Muslims had killed one of his best friends and roommate of his studying days, his name was Smiljanic [sic].

After that they started beating us. They beat us so severely that I cannot say who was beating me. They used all kinds of equipment to beat us. At one point, we were lined up and Milan Simic beat us in the genitals. His men were laughing and said that we would not be able to make children any more. Milan Simic also pointed his Scorpion at me and shot a bullet just above my head.

Q. Mr. Bicic, in reading along with the Bosnian version is ¹⁷ what I just read an accurate translation of your

statement?

A. Yes,

Q. And these two paragraphs constitute your entire account of Milan Simic's first visit to the --

THE INTERPRETER: Could counsel please slow down?

MR. DI FAZIO:

Q. And these two paragraphs constitute your entire account of Milan Simic's first visit to the primary school, correct?

A. Yes, that was it.

Q. Isn't it correct, yes or no, no where in those two paragraphs is the same (redacted) ever mentioned?

A. Not in this translation. So Defence counsel were at pains to point out that in a previous statement he had not mentioned (redacted) being taken out and being beaten. And that is the situation in which the Defence now find themselves wanting to -- wanting you to accept that the evidence of Hasan Bicic is reliable in that respect. At the very least, that portion of the evidence indicates that he failed to make any mention of the attack on (redacted). You must, however, also look at the position of the other witnesses on this question of whether or not you're dealing with two attacks on the one night, the one course of conduct, or separate, separate attacks, separate incidents. And of course, the Chamber well knows why and understands well why the Prosecution is keen to make this submission. ¹⁸ Muhamed Bicic deals with the whole topic of the attack in his evidence, and you can see it generally at pages -- page 2992. He is really very clear about the matter. He clearly describes the attack on his group ending and simply being taken back into the gym and his assailants leaving. And you will see this at page 2999 of the evidence. I don't need to quote it, but it's -- you can just read that portion, Your Honours, for yourselves and you will see that he is quite clear. There was no attempt in cross-examination to establish that there were any separate attacks or indeed whether they took place on the -- in the same night. If you read his cross-examination, no where does he say that the attack upon him and the group of men that he was with was followed by an attack on another -- on another man or another group of victims. So if you accept his evidence, then Hasan Bicic must be wrong, must have got the matter -- must have been mistaken about it and you're dealing with two separate episodes.

The position of Ibrahim Salkic, who was a victim in the first group, is also very, very clear. He says that another man was also attacked on the night that he and the main group, the victims in count 4, suffered their attack. He says that a gentleman named Gibic, a Mr. Gibic, was also attacked but he was only briefly attacked and bundled back into the gym, in fact, by Mr. Simic. And it was not a significant feature of the attack in general. And you'll find his -- the evidence on this at pages 3358 and again in cross-examination, at 3501 to 3502. Mr. Salkic is absolutely clear that Milan Simic and his attackers left immediately following the episode of torture that forms the basis of ¹⁹ count 4. He was being examined by Defence -- by Prosecution counsel.

Q. Did anyone use any of their weapons?

A. Yes, as I said they were about to leave. They were by the entrance. I forgot that. When your memory comes back, when you start talking about it, otherwise you tend to forget some details. Mr. Simic was standing there and behind him was a man with some weapons, they fired above Perica's and Hasan's heads and then we thought that perhaps that was the end of them. However, given all of this, you didn't really dare to turn around and look around a lot because you were wondering what would happen to you and maybe you would go through the same thing. However, they went out. They went out when Mr. Simic told them to. We turned around and we looked at these two men and realised that they were alive. We were particularly pleased to see Hasan standing there and that nothing was wrong with him. Muhamed was the first to ask, "Is anybody wounded? Hasan, are you wounded? No. Perica, are you wounded? No, no. Oh, good, good." He was trying to say, "Good. It's all over." So after that, we were returned to the gym because we were ordered to sing again for the Serb minister until the morning. If somebody were to sit down and not sing, he could consider himself to be a dead man. That's what his men said to us, the men who had come with him. The essential point is that Ibrahim Salkic has got a broad, clear, descriptive account of what happened upon cessation of the attack, and ²⁰ that's got Milan Simic and his coterie of gunmen leaving after the attack, the attack that forms the basis of count 4. Nothing about any attack on (redacted). And there was no cross-examination on the topic by Mr. Zecevic.

If you turn, however, to the man who ought to know best about the issue, you turn to the evidence of Witness N. Then he says something that, in the Prosecution's submission, clearly indicates that we are dealing with a separate episode here. His examination-in-chief starts at page 6128. He says it was June when the attack occurred, he was already very badly injured and, in fact, he had to be carried out to be beaten because of his injuries that he'd sustained in previous beatings. And the man who carried him out to be beaten was Ibrahim Salkic, and he's clear about that, and he says that at page 6131.

In cross-examination, he repeatedly said that Salkic took him out to be tortured and that Salkic ran back inside upon delivering him out to his tormenters, and you'll find that at page 6210. So he's absolutely clear that he was alone when he was beaten, that the man who took him out to be -- who helped him out, because he couldn't walk properly, was Ibrahim Salkic. Now, if these two attacks took place on the same night as the Defence would have you believe, then it just doesn't -- it doesn't make sense. Unless of course, I suppose, the Defence argue that Witness N was attacked first. But there is nothing to suggest that in the evidence at all. It's almost impossible, the Prosecution submits, that Ibrahim Salkic would have been carrying him out if he had endured an attack as he says he did, and namely the events of count 4. ²¹ So it stands in stark contrast to the evidence of Hasan Bicic, who says that (redacted) was part of a group of men who were tortured. He wasn't part of a group of men. He was alone. He's talking about a different episode on a different occasion.

So just looking, standing back and looking at the whole body of evidence generally, I suppose the Defence will say that the witnesses speak of Milan Simic only coming to the gym on two occasions, and the Defence, presumably, will rely on this as further evidence that therefore one of those occasions must have been the night when all victims of both counts 4 and 7 were attacked and tortured. But this isn't compelling evidence for the simple reason that Witness N describes himself having to be carried out to the gym area and therefore he, Milan Simic, did not enter the gym area. So it's quite possible that he returned to the gym on another occasion without being seen by other witnesses. And it's quite possible that the attack that Witness N suffered was -- I'll withdraw that submission.

The consequence of this, of course, is important to the Prosecution because it is, in the Prosecution's submission, quite an aggravating factor. If you accept this submission, if you accept that there were in fact two separate attacks, two separate episodes of torture, then you are dealing with repeated offending and that is an aggravating feature of the course of offending.

If, however, you're not satisfied with the Prosecution's submission, you're not satisfied beyond a reasonable doubt, and you consider it's possible that these attacks occurred on the one night, then, ²² of course, the Prosecution's submission is that you are dealing with a very serious episode of offending on the one night, repeated, vicious, terrifying attacks with several victims and indeed two separate episodes on the one night. But the Prosecution's submission is that the evidence overwhelmingly makes it clear that there are these two events separated by days.

So that's what I want to say on the separate episodes. Duration of the beatings? The Defence submits that although the beatings were serious, they were of shorter duration than other beatings that took place in the gym, and you've heard the evidence surrounding the general activity in the gym. Hasan Bicic is again the only witness who comments on the time, as far as I recall, of the first attack. He says it was -- it took about 20 minutes.

The Prosecution's submission of course is that it's of little mitigatory assistance to say, well, other attacks took place that were longer and more systematic. And of course, the submission fails to take into account the episode suffered by (redacted). Witness N, in describing that episode of torture, said this:

Q. How long did the incidents last?

A. Perhaps an hour or more something like that. For me it seemed a very long time.

The Prosecution submits that when you're looking at torture, the crucial factor is the intensity of the torture inflicted, not its duration. A beating lasting for two hours may be easier to endure than some forms of mental torture lasting four or five minutes. It's the ²³ intensity of the torture that is the significant factor, and that's what you should look at and that you shouldn't give any weight or any mitigating weight to the submission, Well, it only lasted 20 minutes. The Prosecution submission is that when you look at the intensity of the torture suffered by the first group of victims and (redacted), then you see that there were in fact quite severe episodes of torture and quite vicious episodes of torture and that they were accompanied by pronounced overtones of humiliation of the men. Both cases involve threats and violence to the genitalia of the men. Both cases involved the use of firearms. In the case of Witness N, he faced death during his episode of torture, and there can be little doubt about that.

May I just take a moment to find a portion of the transcript of Witness N? He was being examined in chief by Mr. Weiner. I'll just pick it up halfway through his description of the episode of torture. And as best -- the question:

Q. And as best as you can recall, the words that were being said, the curses, the insults, what was being said, as best as you can recall, sir?

A. He said with his own mouth, look at who I sat with you, you balija, look at who I sat with at the barbeque barricades. The others were repeating that and beating me and cursing my balija mother, my Ustasha mother, calling me an Ustasha. Your end has come, things like that, that kind of mistreatment.

Q. Okay. Now as they were saying these things was anyone ²⁴ touching you, was anyone hitting you?

A. Yes. Blows were coming from all around because in a way I was protected by his body, but he had stuck his pistol into my mouth and I was breathing through that practically and it hurt so bad.

Q. Okay. You're in the corner, your back is to the wall, and when you say he stuck his pistol in your mouth, who stuck the pistol in your mouth?

A. Milan Simic.

Q. What kind of pistol?

A. It was a Scorpion, had a longish barrel.

Q. Okay, and when the gun is in your mouth and you're in the corner what were the other people doing.

A. Blows were coming from all around, blows were coming from the side. Milan Simic was standing in front of me holding the pistol in my mouth and then these others were punching me from the two sides and kicking me and touching me in that way. And then I hard a voice say, Cut it off. Get his pants off.

Q. I just want to take the next step. You said that while the gun was in your mouth you saw Milan pull the trigger?

A. Yes. Once or twice he pulled the trigger, but the gun didn't fire and he said, "Balija, you're a lucky man."

Q. What was your mental state at the time when the trigger was pulled once or twice?

A. Well, I was desperate. I thought, that's it, I'm finished. ²⁵ So the submission on the duration of the beatings is a matter that is breathtaking in its insignificance, in the Prosecution's submission, a matter that you should give absolutely no weight to whatsoever and it's a matter that of course if you thought that it did carry some weight in the case of the first attack carries absolutely no weight in the case of the second attack.

In the case of Ibrahim Salkic, he told you that he had in fact before the war suffered the loss of a son, and this was a matter that was well known. He told you of the kicks being aimed at his genitals and Milan Simic saying they would not be able to have children. And you'll find that quote in the evidence at page 3316. So duration of beatings is a matter that's really irrelevant. It's the intensity, and I hope that the passage I read to you reminds Your Honours of the intensity of the attack and torture that these men suffered.

The -- there is a submission in the Defence brief relating to intoxication and the mental state of the defendant. The Defence submission bases itself on the ground that his intoxication and his mental state combined to produce some sort of and abhorrent behaviour in Milan Simic, and I think you'll find this as a recurring theme in the Defence submission, that this is an once-off episode, it was the product of these two factors combining his apparently distraught condition and alcohol.

Of course, that's why the Prosecution was keen to point out to you that other -- that the whole body of evidence dealing with the separateness of the attacks, and if you accept that of course, then ²⁶ that's -- even if they could sustain that as a mitigating ground in the first count, they can't sustain it in respect of the second count. The Prosecution submission, however, is that those two factors, intoxication and mental state, can't amount to any mitigation at all in this case.

Even if they could, there is really very little evidence to indicate that there was any -- that the defendant was significantly affected by alcohol. Its high point, again, reaches its evidence with Hasan Bicic who says it's possible he wasn't conscious of what he was doing. As far as the second episode is concerned, Witness N describes smelling alcohol on the breath of Milan Simic. What is surprising is the complete absence of the usual sorts of indications that courts throughout the world hear regarding drunkenness. There is no evidence of gross impairment of judgement, slurring of his words, loss of balance, and so on. One witness describes him stumbling at some stage, not surprising considering the group attack that took place.

THE INTERPRETER: Could the counsel please speak up and enter the microphone.

MR. DI FAZIO: That's not surprising, considering the group attack in both cases. There was certainly no physical impairment to the defendant's agility. You may recall Muhamed Bicic describing him taking two or three steps in a semi-running stance as he aimed his kicks at the genitals of the men. So it's really very little evidence of any sort of significant intoxication, and in any event, even if there were, the Prosecution submission is, it's not something that you can give any weight ²⁷ to.

This issue of intoxication, and its use to be made, arose in the Todorovic sentencing case. In that -- in the case of Mr. Todorovic, he called a psychiatrist from Belgrade who gave evidence of his psychiatric background and a post-traumatic stress disorder that he may or may not have suffered and commented upon his alcohol and was cross-examined by me in -- by myself on his consumption of alcohol. During the course of my cross-examination, Judge May interrupted the cross-examination and said, "Well, Mr. Di Fazio, it's going to be no mitigation that these offences were committed in drink at this time. It can't be mitigation that these offences were committed in drink. It could never be such mitigation and it must have been very common at this period." I respectfully adopt the words of His Honour in the Todorovic sentencing transcript, and recommend them to you.

Furthermore, there is the question of motive. He was -- I think the Defence will make the submission to you that he was in a distraught condition following the death of his friend. What evidence there is for that, I don't know, but that's the submission that will be made to you. The Prosecution case is that if that is so, then what you were dealing with here is a case of revenge. His friend is killed, and so he takes it out on beaten and cowed and tortured prisoners. Far from being a mitigating factor, if you accept that evidence, it's an aggravating factor, and something you should look at in that particular way. And this has been clearly laid out in the Celebici trial judgement. I'll rely on the Defence brief on this, they quote to you paragraph 1235 of the ²⁸ judgement, and if you read that, in the Prosecution's submission, it indicates that revenge is in fact an aggravating factor. The sort of mitigating factors when it came to motive that the Celebici Trial Chamber referred to were where acts of torture and so on are committed as a result of group pressure or the acts are committed reluctantly. These are completely absent here in this particular case. And furthermore, Celebici said that where the act is premeditated and is in revenge, then it's an aggravated feature of the offending. And just on that issue of premeditation, well of course, the Prosecution submission is that you are here dealing with premeditated acts. It's not the case that Milan Simic happened to find himself in the gym. It's not a case that he went there for some errand and lost control of himself seeing these Muslims and Croats sitting around the walls of the high school gym. He must have gone there with the intent of torturing these men. There can be no other explanation. Both times accompanied by an escort, both times armed, both times people are specifically called out, specifically selected, and that is premeditation. That is a plan. And if it's because his friend was killed, then it's revenge. And if it's a plan, and if it's revenge, it's an aggravating feature. So the motive that is ascribed in this particular case by the Defence is plainly and fairly and squarely an aggravating feature of this offending, and you should deal with it in that way.

I come now to the last and one of the more important submissions in the -- from the Prosecution's point of view, and that is the whole issue of the guilty plea and the remorse, remorse of the defendant. ²⁹ You'll find these two topics dealt with at paragraphs 50 to 58 of the Prosecution brief on sentencing. There are two separate issues, I suppose, the fact of the guilty plea and the fact of remorse, but it is true, of course, that on some occasions a guilty plea can be an expression of remorse. Whether it is or not depends very much on the facts of the particular case and I invite the Trial Chamber to have a good long, hard think about the circumstances of the guilty plea.

The Prosecution submission is that virtually no weight can be attached, no mitigating weight can be attached to the guilty plea and that no mitigating weight is to be attached for remorse on the part of Milan Simic.

JUDGE MUMBA: I think the detailed written submission is sufficient, isn't it, Mr. Di Fazio, on those two issues?

MR. DI FAZIO: There are some extra points I would like to make. It's the last point of the Prosecution submission and I can finish it before the break if that's okay with the Trial Chamber.

JUDGE MUMBA: All right.

MR. DI FAZIO: First of all, the range of sentence that has been recommended to the Trial Chamber, three to five years, by both the Defence and the Prosecution, is a range that was arrived at on the basis that a guilty plea, of course, would be entered, and therefore, it is a range that is appropriate in the Prosecution's submission after plea. In other words, it's a range of sentence that has already taken into account the plea of guilty. If you start to give him further credit for his plea of guilty, then he will, in the Prosecution's submission, be getting an extra ³⁰ benefit for the plea of guilty. Whether you accept that or not, I don't know, but that's the Prosecution's submission.

In addition, however, you have to look at the circumstances of this plea. Of course, all the evidence -- the pleas only came in after all the available evidence to prove counts 4 and 7, all the available evidence to prove counts 4 and 7 had been produced by the Prosecution. The Bicic brothers, Ibrahim Salkic, and Witness N had to be called to give their evidence. They had to relive the experiences and describe the harrowing attacks. The plea -- the last witness to give evidence on the factual background was Witness N; he gave evidence in late February, 2002. The plea agreement was not even reached for another two and a half months, until May, the 13th of May of this year. So it came very, very late in the day, very, very late in the day.

There has been no public advantage as a result of the guilty plea. There has been no public advantage -- no advantage to the OTP or to the Tribunal as a result of the guilty plea. The evidence that the Prosecution had to call to sustain counts 4 and 7 had to be called. The trial was not shortened and it would have been shortened had the guilty plea been entered at an appropriate time, what the Prosecution says is an appropriate time, if you want to get the mitigating effect, namely at the beginning of the trial.

You've got to make a distinction in the Prosecution's submission between someone who pleads guilty at this stage of the trial, well into the trial, after all the available evidence to prove the counts to which he is pleading guilty has been called. You've got to distinguish between ³¹ someone in that position and the defendant who does enter a plea of guilty prior to trial and prior to the evidence being called against him. To simply give credit every time there is a plea of guilty without adjusting that, minimising it or maximising it, depending on the circumstances, fails to do justice to the man who does plead guilty at the beginning of the trial or before trial as a result of remorse, and that's the situation which the person should be given maximum benefit for the guilty plea. It would be unjust for you, in the Prosecution's submission, for his -- for any mitigating effect of his guilty plea to be adjusted to virtually zero in this case.

Furthermore, if you do give full credit or significant credit to him at this stage for entering his guilty plea, then it will act as an invitation to other defendants to test the strength of the Prosecution's case as, in the Prosecution's submission, so clearly happened in this particular case. If there is -- you've got to make a distinction emphatically between the defendant who pleads guilty prior to trial and one who, as in this case, does so only well into the trial and only after he's tested the waters and seen how the strength or otherwise of the Prosecution case.

The issue of remorse, I said in my submissions earlier that a guilty plea can be an expression of remorse. And of course, the truly remorseful defendant who pleads guilty at the first available opportunity stands in a quite different position from the sort of position in which Milan Simic finds himself in.

Until the 13th of May this year, this case was fought tooth and ³² nail. Now The point is made I know in the presentencing brief but I need to, in the Prosecution's submission, re-emphasize it. Clever lies were told to the investigators in March of 1998. The defendant claimed to be happy to be given an opportunity to explain the truth of the matter and then went on promptly to lie about it in his interview. He ascribed motives to Perica Misic and Muhamed Bicic for the falsity of their allegations. Page 25 of the interview:

Q. You're not aware of any other reason why they will falsely accuse you?

A. No. The reason of course is that it is much more profitable to accuse the President of the executive board than somebody much lower. Through his counsel, at this trial, those witnesses were subjected to a really searching and arduous cross-examination. You recall that during the evidence of Witness M, Mr. Zecevic, and I make no criticism of him. On the contrary, he was doing his professional best for his client at the time, but you recall that Mr. Zecevic put to Witness N that he was confused about another attack that he'd suffered at the hands of Crni, and Mr. Zecevic, as I say quite properly at that stage, was putting to Witness N features that were so common between that attack and this attack, and that could only have been to set up a false denial to you at that stage of the case that Witness N was mistaken, had gotten confused between an attack inflicted upon him by Crni and his own torture that he had suffered at the hands of the defendant.

None of the character witnesses speak of his remorse. I went ³³ through the statements. I can find not one sentence or phrase dealing with troubled conscience. The Defence makes the point that he expressed remorse early by the decent treatment meted out to both of those two men. In the Prosecution submission, that's feeble and scant material to rely on. That apology wasn't extended to the others. It certainly wasn't extended -- who were also the subject of that attack. It certainly wasn't extended to Witness N and the remorse evaporated when the investigators started coming along and asking questions about what had been going on in the gym.

Lastly, if Your Honours plea, the severity of the two episodes, the Prosecution brief has made it clear, the major points it relies on. I urge you when considering your sentence not to treat this matter as a night gone wrong, and -- an emotional, drunken night gone wrong. It can't be treated in that particular fashion.

This defendant held an extremely high position in the new Serb administration of Bosanski Samac. He was the President of the executive board. He was surrounded by escorts when he went to the gym on both occasions; he went there twice on the Prosecution's submission. The people that he was supposed to be protecting were there, covered in blood and cuts and bruises, and living in daily terror, and he went along and inflicted more terror and he did it twice on separate occasions and he did it as a man of power and authority. That's the sort of episodes that you are here dealing with and he should be sentenced accordingly. To show any justice to the men who had pistols shoved down their throats and had to breathe with their open mouths as the gun was being ³⁴ pushed further and deeper into their throats, with knives being wielded and having their pants pulled down and their genitalia about to be cut off. You consider that as you will see that the submission or the notion or the idea that this is a wild drunken night, a night that went wrong, is completely and fundamentally misguided and not a proper factual bases upon which you should approach sentencing.

If Your Honours please, those are the Prosecution's submissions. Are there any other matters that you wish to hear me on?

JUDGE MUMBA: No. I think we will take a break for 20 minutes. We shall resume our proceedings at 1045 hours.

--- Recess taken at 10.26 p.m.

--- On resuming to 10.51 a.m.

JUDGE MUMBA: Yes, we will now go to the Defence.

MS. BAEN: Excuse me, Your Honour, at this point the defendant would like to give his statement to the Chamber.

JUDGE MUMBA: Yes, he can go ahead from where he's sitting. Yes, Mr. Milan Simic, you can go ahead and address the Trial Chamber.

THE ACCUSED: [Interpretation] Good morning, Your Honours. Thank you for extending this opportunity for me to address you. First of all, I would like to express my sincere regret and remorse for what I have done to my fellow citizens and friends at the elementary school. I'm aware of the fact that the fact that my best friend was killed and the fact that I was drunk can in no way serve as a justification for what I have done there. I am convinced that even my ³⁵ late friend, Dusan Mijanic, with whom I have spent unforgettable days as a student, would not find words to justify my conduct. Unfortunately, I became aware of all this only afterwards, and although it was immediately clear to me that it was impossible to make up for what I have done, my conscience led me to at least extend my apologies to the people whom I had hurt.

I have done that, but in addition to my sincere regret and remorse and personal apology that I extended to them, I was still haunted by guilt and it continues so until this day.

As regards the interview I gave to the Prosecutor, one should bear in mind that I gave that interview immediately after being the first to come voluntarily to The Hague at the time when The Hague Tribunal was a taboo topic in Bosnia and Herzegovina and that for me, the mere fact of voluntary surrender was too great a burden so that I did not have enough strength or courage to do an additional step and immediately admit my guilt.

This is why I value even more the fact that you allowed me to once again publicly extend apology to all of them. Thank you.

JUDGE MUMBA: Thank you. Very well. Ms. Baen?

MS. BAEN: May it please the Chamber, counsel, and Mr. Simic, I will not spend any time duplicating our brief, which I know the Chamber will appreciate.

JUDGE MUMBA: Yes.

MS. BAEN: However, I will respond to the Prosecution's argument ³⁶ and then highlight some things that were not contained in our brief. I will cover the aggravating factors which the Prosecution has mentioned and also the laws of the former SFRY, and Mr. Zecevic will cover the issue of mitigating circumstances.

Before I address the specific issues, I think it's important to highlight very briefly the purpose of our hearing here today, a sentencing hearing, where the defendant has chosen to plead guilty pursuant to a plea agreement. As stated in paragraph 4 of the joint motion for consideration of this plea agreement between Mr. Simic and the OTP, it says, "In the attached plea agreement, the accused and the Office of the Prosecutor have a joint recommendation to the Trial Chamber regarding sentence." And that's the spirit in which we should be here today is it's a joint process, not so adversarial in the information provided to the Chamber at this point should only be additional information in order to support each party's position.

Many people, including many accused persons sitting in the UNDU right now, have expressed a lot of interest in this hearing because plea agreements, as the Chamber knows, are still rarely used at this point in the OTP -- or excuse me in it the Tribunal. The previous sentencings in Erdemovic, Todorovic, and the Keraterm cases where there have been plea agreements which were accepted by the chambers have encouraged other defendants, such as Mr. Simic, to receive plea agreements from the OTP. These plea agreements are reached -- the more plea agreements that are reached here between the OTP and the Defence, defendants, and accepted by the Trial Chambers, the more encouraged other defendants will be to ³⁷ proceed in the same fashion and the more resources both financial and time will be saved by the Chamber.

I am surprised a little bit by the Prosecution's position that we should receive no credit about the timing of the plea bargain because I think it goes against the spirit of agreement; however, I must say we appreciate --

THE INTERPRETER: Could the counsel please slow down?

JUDGE MUMBA: Slow down.

MS. BAEN: I knew that was going to happen. However, we appreciate the opportunity given us by the Prosecution and the Trial Chamber to be here today.

That being said, I now turn to the evidence which supports our position on what specific sentence within the three to five range Mr. Simic should receive. Very briefly covering the issue of the law of the former SFRY, the jurisprudence is clear, we covered this in our brief, that obviously the Chamber is obliged to consider the laws, but we know it's not mandatory under the jurisprudence that it is followed. Be that as it may, the Prosecution has devoted a significant portion of their submissions in their brief on the law of the former SFRY. The Prosecution has relied on five different Articles from the Criminal Code, and as we all know, as lawyers, we would be remiss in a legal analysis of the law if we didn't look at the it totality of the law and not just selected provisions. For that reason, we, the Defence, provided the Chamber with the two additional Articles today, Articles 42 and 43 of the Criminal Code. ³⁸ Article 42 is entitled "Reduction of Sentence." And it states that, A court may reduce the minimum punishment prescribed by statute or impose a milder type of punishment in two circumstances. Number 1, when it's provided by statute that the offender's punishment may be reduced, and 2, which is relevant here, is when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser punishment. So according to Article 42, the quote "minimum for a crime" is not necessarily the minimum that a defendant can receive, depending on what the Court finds appropriate. In cases where persons have been prosecuted for torture under Article 142 of the SFRY, the jurisprudence has pointed out in the Prosecution's brief is that the Courts consider extenuating circumstances or mitigation to include the absence of prior criminal convictions, age, family circumstances, ill health, as well as many other things that the Prosecution has listed in their brief. In fact, the extenuating circumstances listed by the courts in the SFRY match some of the same mitigating circumstances under the jurisprudence of this Tribunal. Under Article 43, if a court finds that there are extenuating circumstances, this Article 43 provides for how the range of punishment is reduced, and what Article 43 says, Article 43, section 1, subsection 1, that if there is a crime that -- where the minimum is three years or more, the minimum sentence is three years or more, and the court finds that it's appropriate to reduce that sentence, then the range of punishment drops down from one year, a minimum of one year, up to five years or the statutory minimum. And that's really all that -- the Prosecution's ³⁹ submission is that the minimum for torture in the SFRY was five years, and that's just a submission when you add Articles 42 and 43. Moving on to the issue of aggravating circumstances, to respond to the Prosecution's argument, very clearly, the Defence still maintains, as we maintained in our brief, that there are no aggravating circumstances, that even though the crimes Mr. Simic committed and has pled guilty to are very serious - they are very serious crimes and we don't back off that for one moment - however, in aggravation of sentence, we feel there are no aggravating circumstances. The Prosecution submission covers six areas, and I will go through each one of those now.

Before I go through each one, though, I do want to point out again that, as acknowledged by the Prosecution, the whole focus on aggravating circumstances is: Have they met their burden of proof? And we all know here the burden circumstances of proof on aggravating circumstances is still beyond a reasonable doubt. So that's the standard by which we examine each one of the aggravating factors.

Number 1, the gravity of the circumstances. We agree the most important factor in sentencing, period, anywhere, in any jurisdiction, is the gravity of the offence. But to determine what sentence a defendant should receive for a -- depending on the scale of the gravity, a court or a Chamber must have some frame of reference. The substantive laws here in the ICTY for torture and the laws of sentencing are very, very broad, and they should have been drafted that way because the purpose of this Tribunal is to prosecute for all types of conduct, and therefore, you have to have a broad statute in place to cover all types of conduct. ⁴⁰ All crimes have the range of punishment for up to a life sentence, the same reason. For example, the substantive crime of torture, rape could be prosecuted as torture, murder could be prosecute as torture, beatings where a person was killed or maimed can be prosecuted as torture. What we are saying to try to shorten this is there is torture and then there is torture.

In the case of Mr. Simic, the beatings and threats that he inflicted upon his five victims, although very serious in nature, are not at the upper end of the scale as far as severity. There was no rape, no murder, no permanent maiming. In fact, the parties plea agreement itself suggest from both sides that torture in this case is at the lower end of the punishment scale, and that's the reason why the parties reached the agreement of three to five. We further suggest that his conduct should be at the lowest end of the scale, and therefore, that would support the lowest sentence within the plea agreement.

THE INTERPRETER: Could the counsel please slow down?

MS. BAEN: Yes, I will try to. The Prosecution says that the Chamber should focus on particular circumstances in order to determine the gravity of the offence. We agree that's the law. But if you look at the Prosecution's brief, there are very few citations to the evidence. To be fair, there have been some references to the evidence today from the Prosecution, mostly with respect to whether or not there was one or two different nights the defendant visited the elementary school. But in their brief, their five, to be exact, footnotes which talk about the transcript and the evidence, which ⁴¹ is what's most important. By way of contrast, the Defence has many excerpts, 26 to be exact, plus numerous references to the evidence, and that should be the focus when it is determined whether or not the Prosecution has met their burden of proof. They even go so far as to take the questions of counsel to prove that as an aggravating factor against the defendant, and we submit that that's totally inappropriate. Milan Simic was a direct participant in the beatings of all five victims. You will find no argument from the Defence on that issue; however, one thing in the Prosecution's brief needs to be corrected. The Prosecution states on page 2, paragraph 2, of their sentencing brief, the last sentence,

"In addition, the count" -- referring to count 7 -- "charged that Milan Simic pulled down the victim's pants and threatened to cut off his penis as well as firing gunshots over his head."

Well if you look back to the indictment, that is not what the indictment says, and I just want to make that one clarification, because it is important, although he is criminally responsible for everything that happened with respect to every one of those victims, whether he himself did it or the people with him did it, but this correction needs to be made because he wasn't the one wielding a knife and he wasn't the one pulling the victim's pants down.

Furthermore, the evidence, if you look at the evidence of Witness N that supports the fact that the defendant was not the person who did that. It's important to note this as to the form and degree of participation which is noted in the Prosecution's brief. ⁴² The second aggravating factor after gravity of the offence listed in the Prosecution's brief is that Milan Simic was president of the executive board and a member of the Crisis Staff and Mr. Zecevic, I believe, we discussed right before to shorten our arguments, he's going to cover that issue in his remarks with respect to mitigation. The third aggravating factor is the manner in which the crime was committed. And in the Prosecution's brief, paragraph 44, is where they begin their discussion of why the manner in which the crime was committed should be considered as an aggravating factor, and the reason for that argument is, and there is only one paragraph to support that, is that it's the -- the acts were, second sentence, "Both acts of torture were of significant duration." And I'm surprised by Mr. Di Fazio's statement today that duration is completely "irrelevant." I'm not offering duration as a matter of mitigation here at this point, although we did mention mitigation in our brief and we stand on that argument, but with respect to aggravating factors, Mr. Di Fazio is trying to shift the burden. We don't have to prove anything about duration. If they want to provide this as an aggravating factor to the Chamber, as a reason to aggravate this man's sentence, then they have to provide evidence, and the only evidence is that the beatings lasted for 20 minutes. There were five to six, at the least, people there who said they were beaten that night and -- with Hasan Bicic. The only evidence with respect to duration comes from Hasan Bicic. So there is no way the Prosecution can sustain their burden of proof that this was of significant duration if they don't have the evidence to back that up. ⁴³ The fourth aggravating factor listed by the Prosecution in its brief is the issue that Mr. Di Fazio spent most time on today, and that is repeated and separate offences. What we are saying is, obviously, that these two crimes were committed on the same night. We have never, ever -- our position has never been that this constitutes one crime. We agree there are two crimes, Mr. Simic agrees there are two crimes. There are two counts to which we pled guilty, and there are two separate crimes. But from day one of this case, and the representation by my lead counsel and I of Mr. Simic, the position we have taken with the Prosecution is that this all occurred on one night. Even when we were talking about drafting the plea agreement, that was the position. And it was agreed that at sentencing this is where we would be, in this position, we would be telling the Trial Chamber what our client told us, that it happened on one night, they would be arguing it happened on two separate occasions. What we have to do to solve this issue, or the Trial Chamber has to do, is look at the evidence. We put transcript excerpts in our brief and I don't really need to go over those because the evidence is in front of the Chamber, but all of the evidence supports that Mr. Simic only went to the primary school once. All -- well, you didn't hear from Herica Misic, but all four victims from which the Trial Chamber testimony regarding the incidents there, none of them ever said that Mr. Simic had been seen out there beating people more than one occasion. And the Prosecution brings up the fact, well, we didn't cross-examine on that -- the witnesses on that issue. There was no reason to cross-examine the victims when, on direct examination, they mention only one incident. So a ⁴⁴ lack of questions by Defence counsel cannot be used as evidence against the defendant.

If you look at all the evidence, Your Honours, and the best evidence, the person who knows best, I disagree with the Prosecution when he says Witness N knows better than anybody whether or not the defendant was out there on one night, the defendant is the best person, he knows best, and he says he was there on one night. Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, all of their testimony is consistent with this fact. The Prosecution has not sustained their burden of proof on this aggravating, alleged aggravating factor.

The next aggravating factor mentioned in the Prosecution's brief and then its submissions today is premeditation. Again, there is no evidence that this crime or these crimes, rather, were premeditated. The evidence which came straight from the victims was that Milan Simic, or at least one of the victims, Milan Simic was a totally different person that night of the primary school from when he came back to apologise and from the Milan Simic that they have known for years. The witness, Hasan Bicic, said, as we outlined in our transcript excerpts in our brief, that he was a totally different person because he was -- well, when he came back he was a totally different person because he was sober. Now, what that means to me is that he was intoxicated. How can, based on the evidence that he was intoxicated and that he told Hasan Bicic or blamed him for his best friend being killed, that doesn't seem logical to suggest that this was premeditated.

Mr. Simic has told the Trial Chamber this happened on that day, ⁴⁵ and if you look at one of the character affidavits which covers this issue attached our brief, you will see that there was a reason. We are not saying that this is an excuse for the defendant's behaviour, but it certainly will prove to negate the Prosecution's burden of proof on the aggravating factor of premeditation. Someone who is distraught and the Prosecution also I will answer their argument when they say -- when Mr. Di Fazio said today that he felt like the Defence would argue that the reason that the defendant committed this crime was because he was distraught, well, the reason why we say that is because it came straight out of the record from the witness. Mr. Hasan Bicic was asked a question about what he meant by the word "tipsy," and this is in the transcript at page 2792 to 2793.

Q. What made you think he had been drinking or that he was tipsy?

A. Well, it was his behaviour.

Q. And what do you mean by that?

A. By that, I mean the way he pronounced words, his ennunciation, the way he accused me of the death of his friend who was killed somewhere on the front line while I was locked up, and all this indicated that was not in a normal state of mind --

THE INTERPRETER: Counsel, please slow down.

MS. BAEN:

A. That he was not in the same state of mind he was in several days later.

Another excerpt by Hasan Bicic at page 2610 of the transcript: ⁴⁶

Q. So the four or five of you who were called out, what happened to you?

A. We went off towards the changing room, and in the corridor - that is to say, as you come out of the gym - I saw Mr. Simic, and he appeared to be slightly tipsy. He seemed to be just about to cry, and then he returned to me and addressed me. He said, that is he accused me of my people killing, having killed his best friend, a roommate of his while they were students."

But the transcript with respect to Mr. Simic being distraught, the information also came from Hasan Bicic at page 2791 of the transcript, where Hasan Bicic uses the word "distraught" to describe Mr. Simic's appearance.

All of this evidence would also negate the Prosecution's burden of proof that this crime was premeditated. It is illogical to say that a person who had their best friend killed that same day, was drunk and distraught, had planned, calculated, or premeditated these crimes. The Prosecution has failed to sustain their burden of proof on that issue or aggravating factor.

The last aggravating factor mentioned by the Prosecutors in their brief and today is discriminatory intent, and I believe the evidence to prove or not prove, because the Defence does not have to prove anything, but the evidence to support the Defence position on discriminatory intent as an aggravating factor is shared testimony with respect to whether or not this crime was premeditated, but also -- which would be the testimony ⁴⁷ of Hasan Bicic primarily. Also Exhibit F to the sentencing brief, which is a character affidavit which would cover that issue, and then also the defendant's statement here himself supports the lack of discriminatory intent.

We -- I want to make sure that I make this position clear to the Trial Chamber. We stipulated in our plea agreement that there was discriminatory intent on the night that this happened. His intoxication and the killing of his friend do not excuse that and do not negate the fact that horrible things were said to these victims, derogatory, racial remarks, that are inexcusable and show discriminatory intent. However, in mitigation of that discriminatory intent displayed on that night, the Chamber, an in the Defence's position, should view the totality of the circumstances and the totality of the character of this man. All of the character affidavits which were attached to the brief, we planned on calling those people to come testify and in the interests of judicial economy and propriety, we attached those to the brief. But I think they are very good and I think they will paint a very clear picture to the Chamber of what kind of man Milan Simic is outside the night all these horrible things happened at the primary school, and with respect to discriminatory intent we stipulate there was discriminatory intent on that night. However, we think it should not be used as an aggravating factor because of the other reasons, which we have mentioned before the Trial Chamber today.

The bottom line on all six aggravating factors, one of which will be covered by my co-counsel here, the Prosecution has not sustained their ⁴⁸ burden of proof beyond a reasonable doubt. There is one other issue that I have not covered and it was not covered today but it's in the Prosecution's brief, is they devote a paragraph to the issues of retribution and deterrence and they quote the Aleksovski case, and we totally agree with the Aleksovski case. However, it's different in application to Mr. Simic's case for the reason that in a case where there has been a plea bargain, where a defendant has pled guilty and said, these victims were absolutely right. I did these horrible things to them. I will now accept responsibility and will accept whatever sentence the Trial Chamber gives me, that's a different situation from when the victims are challenged, go through an entire trial without a defendant pleading guilty and saying, "Mr. Prosecutor, I didn't do anything, you've got to prove me guilty."

In the case of Mr. Simic, these victims, I submit, the Defence submits, have received retribution, when they watch this hearing on the Internet or they hear about it back in Bosanski Samac and they hear, Milan Simic is not saying that you weren't telling the truth, he accepts what you said in front of the Trial Chamber, he plead guilty, and the victims should be, therefore, vindicated and retribution had by the victims. Therefore, the primary purpose of retribution is achieved through his plea of guilty.

The other issue, deterrence, mentioned in the Aleksovski case. Deterrence is basically a non-issue in this case and primarily, the reason is because of the situation, the physical situation Mr. Simic is in. It is virtually a physical impossibility for Mr. Simic to commit any more ⁴⁹ crimes, according to the medical reports attached to our brief. And also, the evidence that we offer today, which the Trial Chamber will have a chance to examine, the affidavit from Mr. Simic's wife, who is a trained nurse, has cared for him before Mr. Simic's voluntary surrender to the ICTY and also while on provisional release, she took over the full-time responsibility of his medical care, and she says in her affidavit that he can't even operate his wheelchair on his own, which I believe is also referenced in the medical report. So as far as deterrence, it's -- this is a special circumstance here, it's not an issue with respect to Mr. Simic personally.

As far as deterring others from committing this crime, whenever Milan Simic finishes serving whatever sentence he receives from the Trial Chamber, he hopefully will be able to return to Bosanski Samac and everyone in that town will know that he pled guilty -- he was prosecuted, he pled guilty, he served time in prison and that most certainly will serve as deterrence and it's now already, in and of itself to those back in Bosanski Samac. So this Prosecution in and of itself will deter others from committing the crime.

One brief final issue before I turn things over to Mr. Zecevic,, and it's covered in great detail in the brief so there is no reason to go into minutia, but the issue of or the credit which Mr. Simic should receive towards whatever sentence he receives. Obviously, the law is clear, whatever time Mr. Simic has spent in the UNDU awaiting sentencing, I think there is no argument obviously that he is entitled to that credit. The issue of contention, and of course the Defence expected this ⁵⁰ to be a contentious issue, which is a new issue for the Trial Chamber, the ICTY is whether or not he should receive credit for all the time on provisional release.

The issue here is if the Trial Chamber decides to create new law in this area, because it would be new law and we recognise that, that house arrest could be credited towards a sentence, it would have to be -- the ruling would have to be that this is considered on a case-by-case basis and you would have to look at the particular provisional release of the particular defendant in his particular circumstances to determine whether or not his provisional release was house arrest. There was some mention about our client being drinking coffee somewhere in Bosanski Samac. There is no evidence in the record to support that at all. So I don't know whether that's true or that isn't true, but it can't be analysed because there is no evidence in the record. But be that as it may, if the Trial Chamber looks at the two prior periods of provisional release, coupled with the defendant's medical situation, his life doesn't change that much from being in a jail situation versus being in his apartment for hours at a time every day, not being able to move without the help of his wife. That, coupled with the conditions imposed by the Trial Chamber, constitute house arrest and therefore he should be entitled to that credit towards whatever sentence he receives.

In conclusion, it has been a privilege and a honour to appear here in this Tribunal. I know this is an important event and all of our lives, and I am very pleased that I had this privilege to appear here in front of ⁵¹ this Chamber and to represent Mr. Simic.

Mr. Simic is an intelligent, bright, funny man who has handled his situation of being a paraplegic with extreme courage and good humour. He has displayed remorse to this Trial Chamber, to his counsel, to his victims, and accepted, through his plea of guilty, the possible consequences of a life sentence. For these reasons, and more to be submitted by Mr. Zecevic, I respectfully request that this Trial Chamber sentence the defendant to three years in prison.

Thank you very much, Your Honours.

JUDGE MUMBA: Thank you. Mr. Zecevic?

MR. ZECEVIC: Good morning, Your Honours. For the benefit of my client, I will speak in Serbian.

[Interpretation] I will state very briefly, without repeating what has already been stated in our brief and what my colleague Ms. Baen has already said, the position of the defence pertaining to the mitigating circumstances in favour of our client. Before that, I would just like to note that in his brief, the Prosecutor and also in his oral arguments today, misrepresented some facts from some words from the plea agreement. These facts or these allegations are not contained in the agreement. But since this document has been filed under seal, I will not be stating our views pertaining to these facts since the Trial Chamber has this document at their disposal, and I'm sure that the Trial Chamber will be verifying the allegations made by the parties relating to this agreement. ⁵² Milan Simic was born in 1960 and he comes from a very well-known and well-respected family from Samac. From his part, Milan Simic has always been -- always served as an example in Samac, starting from the elementary school, then on to the secondary school, and to the university, he was known as a very intelligent and disciplined students and worker. In all the companies in which he worked, as you can see from the evidence, the statements attached to the Defence brief, the impression he left was very good indeed as a professional, hard-working, and positive person on which he built his interpersonal skills and relations. He created the interpersonal relations and nurtured those relations, both in his workplace and in his private environment.

The evidence attached to the Defence brief will tell you that Milan is a social person, always ready to help, that he does not have any prejudices in any respect, and particularly no racial or nation -- or ethnic or religious prejudices. The statements also indicate that he had many Muslim and Croat friends, and that he never showed any kind of discriminatory attitudes towards them.

Some of his closest friends, such as the witness whose statement is attached as Exhibit E, is a Muslim with whom he spent his entire childhood and youth. They shared the good and the bad, and they are friends to this day.

During the war, the witness whose statement is attached as Exhibit F was given his apartment for use by him, and he went to live with his parents. In addition to this, he provided assistance to this family and he provided assistance to his other neighbours regardless of their ⁵³ ethnicity or religion.

Milan Simic had no political ambitions and he was not involved in politics. Even at the time when membership in political parties of the nationalist orientation in Bosnia and Herzegovina and in the former Yugoslavia in 1990 and onwards became the basic principle and way of life, Milan Simic was not a member of the SDS. There is a pertinent exhibit attached to the Defence brief proving that.

Milan Simic opted for the Reformist Party, which was led by the then Prime Minister of the Socialist Federal Republic of Yugoslavia Ante Markovic, a Croat. This party had, above all, a very moderate, intellectual, multi-ethnic, and pro-Yugoslav orientation, and it was the complete opposite in a way to the radical, single ethnic affiliation parties that were sprouting all over the then Yugoslavia. In Samac, he took part with the representatives of all ethnic communities in the antiwar protests, the so-called barbecue barricades. Witness N testified to this fact in front of the Tribunal, among others.

As you can see from the attachments to the Defence brief -- I mean more specifically the Exhibit C, Milan Simic has never broken the law, nor has -- had ever been arrested and has no previous convictions for any criminal offence. As a successful economist with great organisational skills, he was appointed to the post of the President of the executive board of Samac on the 30th of May, 1992. The sphere of activity of the executive board, as the Trial Chamber is aware, was very broad. From the utilities, construction, water supply, energy supply, fuel, basic food stuff, and also to ensuring that the health, education, and the economy as ⁵⁴ a whole in the municipality functioned well.

The Trial Chamber is also aware, through having listened to the evidence presented in this case, that in mid-1992, Samac was a town in isolation. It was frequently shelled because the Sava River and the immediate vicinity of the town was the location where the front line was. In such a complex situation, to ensure that all the town services functioned and that the population received everything that they needed, that the economy functioned, that the education and the health service functioned, involved huge difficulties, primarily because of the shortages of various products and also for financial and logistics problems. The exhibits attached to the Defence brief indicate that the executive council, executive board, headed by Milan Simic dealt exactly and primarily with this type of issue for the benefit of all the inhabitants of Samac, regardless of their ethnic or religious affiliation. From the education to procuring fuel, functioning of the water supply and power supply, food, restarting the production, and ensuring that the hemodialysis centre functioned, this hemodialysis centre where most of the patients were ethnic Muslims. This is what the -- what Milan Simic dealt with as a member of the government in Bosanski Samac. In relation to what the Prosecution stated today regarding the time when the plea agreement was achieved, I would like to note a few facts. First of all, the allegation made by the Prosecution that all the witnesses testifying as to the events in the elementary school have already testified is not correct. The Trial Chamber is aware of the fact that the Defence insisted on the testimony of Perica Misic to be heard as ⁵⁵ one of the direct witnesses to this event. This is a Prosecution witness, and the Prosecution opposed strenuously to this witness being heard, or to his statement being tendered into evidence. The fact that the Prosecution did not want to have one of their witnesses heard, a witness who was a direct victim, will, I'm sure, be taken into account by the Trial Chamber. The guilty plea of the accused and the stage of the proceedings at which this was done is a mitigating circumstance, which has already been taken into account by other Trial Chambers of this Tribunal. It is the position of the Trial Chambers that the accused who plead guilty are given credit commensurate to the stage at which such an agreement with the Prosecution is achieved.

The Defence brief quotes the position of the Trial Chamber in the Kolundzija case where the accused pleaded guilty before the beginning of list Defence case and after the completion of the Prosecution case. In that case, the Trial Chamber took the view that Kolundzija should be given almost full credit for his guilty plea.

In this specific case, the accused, Milan Simic, pled guilty in the middle of the Prosecution case, and in this way, has made a possible for the Tribunal to achieve a substantial economy of time and resources. I would just like to remind the Trial Chamber about the efforts put in by the Chamber, by the Defence, and by the registry in order to ensure the smooth proceeding of this case in the Bosanski Samac case, where Simic was provided a special bed and the services of a nurse in the Tribunal building, in accordance with the recommendations of a doctor, in order to make it possible for Milan Simic to follow his trial. Despite all these ⁵⁶ measures, trial had to be adjourned quite frequently because of the problems in transport or late arrival of the nurses to the UNDU or similar reasons.

Let me remind you that at the time when the plea agreement between the accused and the Prosecution was achieved, Milan Simic had been following his own trial from his bed in the UNDU over the videolink and communicated with his lawyers over a special telephone line due to his ill health. The costs, which were huge to begin with, of the technical aids have become an additional burden on the budget of the Tribunal. The costs incurred by Milan Simic are probably the greatest costs incurred by any accused individually taken. In this respect, the economy of time and resources achieved is even more significant because even greater savings have been achieved in this it respect by his guilty plea. His guilty plea has also made it possible for the Bosanski Samac case to proceed smoothly. The Defence would also like to note in particular that the negotiations on the plea agreement, between the Prosecution and the Defence, began before the beginning of the trial in this case, as early as in May 2001 on the initiative of the Defence, since neither the Defence nor the accused wanted the case to proceed to trial assuming, in advance, how a lengthy trial may affect the health of the accused -- adversely affect the health of the accused. But since the positions of the Prosecution and of the Defence were very far apart, a substantially longer time was needed for the positions of the parties to come closer, which led to the agreement reached on the 15th of May, 2002.

For this reason, the Defence deems that the position of the ⁵⁷ Prosecution presented in paragraph 51 of the Prosecution brief and in the oral arguments presented today, and to be more specific, paragraph 15 of the plea agreement, where it is insinuated that the accused had failed to cooperate with the Prosecution, this is unacceptable. The plea agreement is a result of the freely expressed wills of -- will of the two parties. It is unacceptable for us to have the plea agreement, after it has already been signed, to become a problem or to be at issue again. In this specific paragraph, the agreement pertained to the fact that Milan Simic would not be testifying in the Samac case in favour or against any of the accused. We believe that this agreement has been there since the very beginning of the negotiations and the Prosecution never demanded Milan Simic to testify. And that's why we feel that it is unacceptable for them to be raising these issues from the agreement. As regards the cooperation of Milan Simic in the Prosecution brief, in the attachment thereto, there is his interview given to the Prosecution as early as in March 1998. The Defence would like also to state that in the Kolundzija case the Trial Chamber took into account the degree of cooperation shown by the Defence counsel with the Trial Chamber and with the Prosecution to ensure that the trial proceeds more efficiently.

In this specific case, the Defence deems that its attitude has greatly contributed to a more efficient trial. First of all, the Defence agreed for the trial to continue at the time when the composition of the Trial Chamber changed. Had it not been so, the Trial Chamber would have had to start anew with a great loss of time and resources. ⁵⁸ Secondly, as regards the consent to have the trial conducted in the absence of the accused in the trial -- in the courtroom, this has substantially contributed to achieving greater efficiency in the Samac case until the moment when the plea agreement was achieved. As regards the remorse expressed by the accused, the Trial Chamber has had the opportunity a little while ago to hear the truly sincere and unequivocal contrition of Milan Simic. In his same statement, Simic explained the reasons why he did not have the courage to admit to the Prosecution in March, 1992, that he was guilty of committing this act. I would also like to stress here that Milan Simic was the first person to voluntarily surrender to the Tribunal in The Hague, at the time when the relations between the Tribunal and the Republika Srpska were much, much worse than they are today. His surrender, in a way, broke the ice in the relationship between the Tribunal and Republika Srpska, and even more importantly, at least in my opinion, in the relationship between the Tribunal and the other accused. We can only try to imagine the burden and pressure that Milan Simic was exposed to at that time. Despite all that, and despite the fact that he is a seriously disabled person, Simic surrendered to the Tribunal voluntarily, and with his act he paved the way for the voluntary surrender of all the other persons prosecuted by the Tribunal, which has led to the situation we have today, four and a half years, or more than four years after his surrender, that more than half of the accused persons are voluntarily surrendering to the Tribunal. One should bear in mind in particular that the first indictment, dated 25th of July, 1995, charged Milan Simic with only one criminal ⁵⁹ offence, in counts 24 to 26 of the indictment, specifically the incident in the elementary school, and this is what he plead guilty to in May, 2002. This means that at the time when he surrendered voluntarily, Simic was aware of the specific criminal offence that he is charged with and the facts pertaining to the act. That is why the fact that he surrendered voluntarily on the 14th of February, 1992 [as interpreted], reflects his feeling of remorse for what he had done, despite the fact that he at that time did not have the strength and courage to openly say so.

JUDGE MUMBA: May we correct something? The transcript shows that he surrendered voluntarily on 14th February, 1992. You mean 1998?

MR. ZECEVIC: 1998, yes, sorry. It's a mistake in the transcript. No, no, no. I said 1998.

[Interpretation] As you have heard from Mr. Simic today, this feeling of remorse has been with him to this day. I'm convinced that Simic would have admitted to the perpetration of this act, had the indictment not been amended subsequently. When the time was ripe for him to plead guilty just to that incident, Simic did so.

In this sense I feel that his voluntary surrender to the Tribunal and his consistent attitude are also an unequivocal expression of his sincere remorse for what he had done, and the Prosecution in fact confirmed that on page 28, line 3.

The most important thing is that Milan Simic expressed his remorse directly, a few days after the incident itself, when he apologised to all of the victims, to some of them directly, and to others through those people that he apologised directly to, for his actions, and explained the ⁶⁰ reasons why he acted in this way.

The Defence deems his gesture in 1992 as the most vital proof of his -- of the sincerity of his motives for repentence. At that time, Simic could not have known that he would be indicted before this Tribunal, because at that time the Tribunal was not in existence, so that his motives for apologising and for expressing his remorse is the most sincere. In the Erdemovic case, the Trial Chamber gave a lot of weight to the remorse expressed by the accused for the acts that he had committed, the remorse he expressed at trial, and consequently departed downwards from the minimum sentence recommended by the parties in the agreement. The Defence deems that the remorse that Milan Simic expressed directly to the victims in 1992 shows the purity and sincerity of his motives and is deserving of the full credit to be granted to the accused by the Trial Chamber in terms of mitigation, in accordance with the case law.

The case law of the Tribunal, unlike the case law in the former Yugoslavia, does not acknowledge significantly impaired health of the accused as a mitigating circumstance. In this case, we believe that there are special circumstances which justify taking into account the health of the accused as a mitigating circumstance.

Milan Simic stands accused here for the acts he committed in 1992 in Bosanski Samac, in the territory of the former Socialist Federal Republic of Yugoslavia, and at the same time he is a person that was disabled in the course of war. So the same -- the very same situation which has led to him being tried before this Tribunal resulted in his ⁶¹ wounding in February, 1993, which in turn resulted in the fact that he remained a disabled person -- that he was disabled for life, and the Trial Chamber has very detailed information about his health and the latest findings being attached to the Defence brief. In this sense, Milan Simic is at the same time both the accused and the victim of the war situation in the territory of the former SFRY after 1991.

If we look at Simic as an accused for the acts that he committed, we have his admission of guilt, we have the case law of the Tribunal, as regards the evaluation of the mitigating and aggravating circumstances. If we look at him as a victim of the very same war situation and the same events that had led to the establishment of the Tribunal in May, 1993, we will see a victim with the most severe consequence, and the gravest psychological burden, the fact that, at the age of 33, he remained paralysed for life. We will see a man who loved life and who loved to work in every way, and yet remained bed-ridden in a wheelchair. We will see a man who was very athletic, and the only sport he can engage in now is chess, and only with his left hand because he can not do it with his right-hand. We will see a man who loved to travel and to socialise, and now cannot get out of his bed without somebody else's help. We will see a man who started his family two weeks before he was wounded, and had to stop there. And finally, we will see a man who, as a victim, has already received a life sentence.

In light of the above, the Defence asks the Trial Chamber, noting that the mitigating circumstances in favour of the accused are extremely numerous and serious, and that there are virtually no aggravating ⁶² circumstances at all, and that is why we propose and ask the Trial Chamber to impose a sentence of three years' imprisonment on the accused. Thank you.

JUDGE MUMBA: Thank you.

[Trial Chamber confers]

JUDGE MUMBA: Yes, Mr. Di Fazio?

MR. DI FAZIO: I have a right of reply?

JUDGE MUMBA: Very shortly, very briefly.

MR. DI FAZIO: It will be brief. I don't have that much to add. Do Your Honours want the copy of the Yugoslavian Criminal Code that I caused to be photocopied? I have got copies here. I don't know what the Defence will say about that.

JUDGE MUMBA: It was said that the copies were in the library.

MR. DI FAZIO: Fine. In that case, I will just proceed.

JUDGE MUMBA: The Defence did explain what they thought was the problem with the translation.

MR. DI FAZIO: Thank you. Plainly, Articles 42 and 43 that the Defence rely upon must be articles that only come into operation in extraordinary circumstances. Otherwise it would make a mockery of minimum sentences. Perhaps the courts in the former Yugoslavia did have, under Articles 42 and 43, the power to reduce -- to go below minimum sentences but for that to be coherent and for that to be sensible, it could only have been in the most extraordinary of circumstances, because of course there would be offenders who all the time have a clear criminal record and who perhaps might be in ⁶³ ill health, and it couldn't be the case that every time courts are presented with such a person in the former Yugoslavia, that Articles 42 and 43 would operate to allow them to go below the minimum. So Article 142 still stands, in the Prosecution submission, of the Criminal Code, and does operate to keep that minimum sentence that he would have received in the former Yugoslavia for just the sort of crimes that you are dealing with at five years.

The Prosecution submission is that the Defence have done nothing and pointed you to nothing in the provisions of the former Yugoslavian Criminal Code to indicate -- will you just excuse me for a moment, Your Honours? -- how he might have relied on Articles 42 and 43 to go below the minimum set out in 142. So the Prosecution submission is that aspect, that plank, of its argument stands intact. If you go below the sentence of five years that has been the range -- in looking at the range, three to five, if you go below that five years, you will be sentencing him for less than he would have received in the former Yugoslavia for crimes such as this. If you're going to take those provisions into account, you've got to keep the sentence up at the five-year mark, in the Prosecution's submission.

JUDGE MUMBA: You can make your submissions but you know very well that the Trial Chamber is not bound.

MR. DI FAZIO: I appreciate that. I understand that. The Chamber will probably know better than myself, but the cases that I have seen deal with situations where the sentence, the provisions of the Yugoslavian Criminal Code actually set out sentences that were well below sentences ⁶⁴ being contemplated here in the Tribunal. This is a reverse case. The range here is -- invites you to consider a range of sentence below the minimum in Yugoslavia, that he would have got in Yugoslavia. So if you are to consider that, it can only have one effect. If you are to consider the former sentencing practice in the former Yugoslavia, it can have only one effect, and that's to push the sentence upwards. In the Prosecution submission, a proper giving of effect to that provision is for to you sentence to five years in this case.

Ms. Baen made the submission that the plea agreement contemplates -- or I think, if I am correct, her language was more explicit than that, but certainly contemplates that torture is at the lower end -- that the torture in this case is at the lower end of the scale, and that's why three to five years were the range -- is the range recommended. In the Prosecution's submission, that is simply not correct. There is nothing that I can see in the plea agreement that says that the Prosecution contemplates that this particular -- the activity that's -- that is the basis of counts 4 and 7 it is at the lower end of the scale in this case. Membership in the Crisis Staff? Exhibit D31/2, it's a -- it was introduced in evidence during the Variant A and B hearing. It's entitled, "Excerpts from the instructions relating to the Crisis Staff." The relevant article, Article 2, have a read of that and you'll see that President of the Executive Staff gets membership -- sorry, President of the Executive Board gets membership on the Crisis Staff. And that's -- that deals with that matter.

Duration of attack? Ms. Baen made the submission that the only ⁶⁵ evidence of duration of attack comes from Hasan Bicic. He said 20 minutes. As I said initially in my submissions, that's really neither here nor there. What you've got to look at is the intensity of what is suffered. But in any event, Witness N, in describing the attack on him, described it as having gone on for an hour or more, something like that. You'll find that evidence at page 6141.

JUDGE MUMBA: Yes. Mr. Di Fazio, I don't think there is anything knew that you're going to touch upon. I think everybody has been discussed, everything is in there in the written submissions. So the Trial Chamber doesn't think we need any further addresses.

MR. DI FAZIO: Yes. Just one matter, if I may, and that is the issue relating to Perica Misic. The submissions there are -- in the Prosecution's submission, the Defence submissions are completely incorrect. The Prosecution opposed his being called to give evidence only after the plea agreement had been entered into, and it was made abundantly clear to Defence counsel by Ms. Reidy of his wishes in so far as giving evidence is concerned, and I think that was conveyed to the Trial Chamber. So that is not a matter that they can call into -- to their aid.

This in fact demonstrates a further insensitivity to him. An insistence to his being called, both pre and post plea agreement, indicates that, once again, they were prepared to bring in a witness to this Chamber to relive his experiences of torture and so on. So that's not a matter that is -- that you should take -- take into account or give any credence to. ⁶⁶ There are other matters, but if Your Honours feel that you have heard enough, then I won't go on.

JUDGE MUMBA: Yes. I think we've heard enough submissions, and the plea agreement itself has quite a lot that will help the Trial Chamber in coming to a decision.

MR. DI FAZIO: Well, I certainly invite to you reread it once again. I'm sure that Your Honours already have, and I think it's clear in its wording. Thank you.

JUDGE MUMBA: Yes. Mr. Zecevic?

MR. ZECEVIC: Your Honours, if it pleases the Court, I would like to have just one minute or two to address these new issues because they have been readdressed by my learned colleague, so I would like to give some explanations, if you will allow.

JUDGE MUMBA: Yes, you may go ahead.

MR. ZECEVIC: Thank you. Your Honours, if I may speak in Serbian again, I would very much appreciate it.

JUDGE MUMBA: Yes, go ahead.

MR. ZECEVIC: [Interpretation] The courts in Socialist Federal Republic of Yugoslavia very frequently used the provisions of Articles 42 and 43 when evaluating and passing down the sentence. As far as the circumstances are concerned, in view of the position taken by Yugoslav courts, disability or severe illness, as circumstances, are absolutely treated as very specific circumstances which allow for the use of the provisions of Article 42 and 43.

As you have heard, some other circumstances are also envisioned by ⁶⁷ the law as something that can be taken into account, if they are of particular importance for the application of provisions of Articles 42 and 43. One of such circumstances can definitely be an apology given by the accused to the victim.

And something very briefly, concerning the Prosecutor's reference to the Crisis Staff for the first time in these additional comments by the Prosecutor, I will say something briefly regarding this. The Prosecution never proved beyond reasonable doubt that Milan Simic was a member of the Crisis Staff, which is absolutely necessary pursuant to the rules and jurisprudence of this Tribunal. The evidence used by the Prosecution in a footnote which is called, "The excerpt from the instructions for the work of Crisis Staff in Serb municipalities," which was issued by the government of Republika Srpska, is just an excerpt from another larger document which we were not given an opportunity to see. We should especially take into account the fact that this document is dated 26 April, 1992, and that the Trial Chamber knows full well that the Crisis Staff of Bosanski Samac municipality was established way back in March of 1992, to be more specific, on the 28th of March, which is to say that it was established a month and a half before the date of this document. The Defence maintains its proposal --

JUDGE MUMBA: Mr. Zecevic -- to put you at rest. The point is the capacity described in the plea agreement is what will stand, is what the Trial Chamber will consider, nothing more, because we are not reopening any facts.

MR. ZECEVIC: Yes, Your Honour, we don't have any problem with the ⁶⁸ capacity because it's beyond the doubt that he was the president of the executive board and all that goes with that. I'm just referring to this new issue, that was the only thing I did. Thank you, Your Honour, we are staying with the our proposal for three years in prison.

JUDGE MUMBA: Thank you very much. The Trial Chamber will consider the submissions submitted by both parties and it will deliver judgement in due course. The date of the judgement will be notified to all parties in good time to allow counsel to be present and also to allow the accused to be present and also to allow the accused to be present. We will adjourn now.

--- Whereupon the hearing adjourned at 12.13 p.m.