TERRORISM CONVICTIONS UPHELD BUT SENTENCES

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 001405 SIPDIS SIPDIS DOJ FOR DEPUTY ATTORNEY GENERAL B. SCHWARTZ, DOJ/OPDAT C. ALEXANDRE E.O. 12958: DECL: 06/22/2011 TAGS: PTER KJUS PGOV BK SUBJECT: TERRORISM CONVICTIONS UPHELD BUT SENTENCES SUBSTANTIALLY REDUCED REF: A. SARAJEVO 47 ¶B. 05 SARAJEVO 2892 Classified By: Amb. Douglas L. McElhaney. Reasons 1.4 (b) and (d) ¶1. (U) On June 15, the State Court appellate panel affirmed the terrorism convictions of Mirsad Bektasevic and three others (REF A). While rejecting all of the defense's claims for acquittal, the court significantly reduced the sentences, ruling that the original sentences were disproportionate to the degree of danger posed by the crimes committed and lower penalties would achieve the purposes of punishment. Lead defendants Bektasevic and Abdulkadir Cesur's sentences were reduced from 15 to 8 years and from 13 to 6 years, respectively, while the sentences of co-defendants Bajro Ikanovic and Senad Hasanovic were reduced from 8 to 4 years and 2.5 years to six months. Hasanovic is eligible for immediate release based on time served. A fifth defendant, Amir Bajric, is currently serving two years in prison in accordance with his plea agreement. ¶2. (C) The men were arrested in October-November 2005 in Ilidza, a suburb of Sarajevo. Among the items confiscated in the raid on their safe house were a semi-automatic pistol with an attached suppresser/silencer, 19 kilos of explosive material and a crudely fashioned suicide belt. Authorities also discovered a video depicting masked men supposedly preparing for an attack against unspecified European targets. At the time, Bektasevic was 19 years old, Cesur and Hasanovic were 21, and Ikanovic was 29. USDOJ/OPDAT, Embassy LEGATT and the FBI assisted Bosnian authorities with investigating and trying the case. DOJ/OPDAT also reviewed the appellate claims with the prosecutor and provided substantial guidance for the prosecutor's response. ¶3. (U) The three-judge appellate panel, composed of two Bosnians and one German (lead) judge, affirmed the four convictions, rejecting claims by the defense that the verdict could not be based on the testimony of cooperating co-defendant Bajric, and that key evidence was unlawfully obtained. However, the panel held that the original sentences had been set without considering any mitigating circumstances, such as the defendants' ages and their lack of prior criminal records. The panel determined that the revised sentences were more proportionate to the degree of danger posed by the crimes committed and would achieve the purposes of punishment. Comment -------------- ¶4. (C) The court's decision to significantly reduce the sentences is unfortunate. It is possible the court was influenced by the fact that no acts of violence were actually committed, because the defendants were captured before the plot was fully developed. The result was likely also partly a result of differing European versus U.S. approaches to jurisprudence. Nevertheless, the most important element of the case, the guilty verdict, was reaffirmed and is now final. This is no small achievement in a legal climate where appellate panels are not required to defer to, and do not hesitate to reverse, the trial courts' findings of facts. For example, in November 2005, the State War Crimes Chamber appellate panel partly overturned the Maktouf conviction on precisely the same grounds that the Bektasevic panel rejected, namely, an important witness for the prosecution was an accessory to the crime and therefore his credibility was questionable (REF. B). The reduced penalties imposed on Bektasevic and his codefendants should not detract from the fact that, through the successful prosecution of Bosnia's first terrorism case, Bosnian police and prosecutors, with key assistance from U.S. authorities, have improved their professional competence. However, it is also apparent that SARAJEVO 00001405 002 OF 002 more needs to be done to discourage the appellate judges from too-readily second-guessing their lower court colleagues. MCELHANEY