IN THE TRIAL CHAMBER
Judge Claude Jorda, Presiding
Judge Haopei Li
Judge Mohamed Shahabuddeen
Mr. Jean-Jacques Heintz, Deputy Registrar
23 May 1997
DECISION ON THE DEFENCE REQUEST FOR
ENFORCEMENT OF AN ORDER OF THE TRIAL CHAMBER
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Gregory Kehoe
Mr. Andrew Cayley
Mr. Anto Nobilo
Mr. Russell Hayman
I. Review of the Proceedings
On 2 May 1997, the Defence submitted to the Trial Chamber a Request for enforcement of the Trial Chambers order of 4 April 1997 (hereinafter "the Request"). On 16 May 1997, the Prosecutor submitted her response to the Request (hereinafter "the Response").
In its Request, the Defence refers to the second amended indictment dated 25 April 1997 which was to comply with the orders of the Trial Chamber issued in its Decision of 4 April 1997 ("Decision on the defence motion to dismiss the indictment based upon defects in the form thereof", hereinafter "the Decision"). The Defence considers that in some significant points, the indictment does not comply with the Decision of the Trial Chamber and should therefore be rejected.
The Prosecutor, in turn, pointed out that she did comply with the Decision and that the accused is therefore in a position to prepare a suitable defence.
In light of its previous Decision of 4 April 1997, the Trial Chamber will review the requests for amendments to the indictment with which the Prosecutor has complied and those with which she has not. The Trial Chamber will also issue a ruling on the new count (Count 2).1
II. Evaluation of the Prosecutors amendments to the indictment
A. Amendments to the indictment which comply with the Decision of the Trial Chamber
1. Point A: footnote 2 of page 2 of the Request (excluding the question of the role of the accused)
In footnote 2 of page 2 of the Request, the Defence states that the Prosecutor "avail[ed] herself of the opportunity to expand the scope of the charges against the accused in ways not addressed by the Order. Specifically, paragraphs 1, 5.2, 6.3, 6.6, 6.7, 12 and 14 of the indictment contain new factual allegations which were not authorized or invited by the Order".
The Trial Chamber will first review each of the paragraphs to which reference has been made.
- Paragraphs 1 and 5.2
The second indictment struck the words "including, but not limited to". The new indictment mentions other names of villages: Vares, Zepce, Duvno, Stolac, Mostar, Jablanica, Prozor, Capljina, Gornji Vakuf, Novi Travnik, Travnik, Kresevo and Fojnica which makes the presumed locations of the alleged crimes more precise.
- Paragraph 6.3
The Prosecutor complied with the request of the Trial Chamber by striking overly vague terms like "including but not limited to".
- Paragraph 6.6
The Trial Chamber notes that the second indictment introduces a new category of violations committed against the civilian population: forced transfer of civilians. Paragraph 6.6 of the new indictment provides more details than the former indictment in respect of the issue of the transfer of the civilian population. The Trial Chamber considers that these additions are in line with its Decision of 4 April 1997.
- Paragraph 12
The Trial Chamber also notes that the Prosecutors changes comply with the Decision of 4 April 1997. The time frame during which the alleged crimes are said to have been committed was made more specific - "about January 1993 and about April 1994" has been changed to "January 1993 to January 1994", the qualifying adverbs having been removed. Several details regarding the locations of the alleged crimes have been added ("houses in Gacice").
- Paragraph 14 (former paragraph 12)
The Trial Chamber points out that the new indictment has added the names of villages: "Kiseljak, Vitez and Busovaca" and struck the words "at or near front lines".
- Counts 3 and 4
The Trial Chamber considers that the Prosecutor, in compliance with its Decision requesting greater precision, has refined the legal characterisation of the alleged crimes by referring to Additional Protocol I of the 1949 Geneva Conventions.
2. Point B of the Request: Count 14
In its Decision of 4 April 1997, the Trial Chamber orders the Prosecutor "to add further precision to paragraph 10 of the amended indictment relating to institutions dedicated to religion or education (Point J of the Motion)".
The Trial Chamber considers that the listing of the locations and the inclusion of the dates when the destruction occurred comply with its request.
For all the above-mentioned reasons, the Trial Chamber considers that the Prosecutor has satisfied the Judges concerns.
B. Amendments to the indictment which do not comply with the Decision of the Trial Chamber: the role of the accused (Point A of the Request)
In its Decision of 4 April 1997, the Trial Chamber requested that the Prosecutor amend the indictment by providing sufficient factual indications in support of one or the other of the types of responsibility invoked pursuant to the provisions of Articles 7(1) and 7(3) of the Statute.
The Trial Chamber notes that the Prosecutors characterisation of the role of the accused in the alleged crimes as it appears in paragraphs 6, 8, 9, 10, 11, 12, 15 and 16 merely repeats the wording of Articles 7(1) and 7(3) without providing any further details about the acts alleged in respect of the type of responsibility incurred.
The Trial Chamber will not repeat its orders and does not consider that, at this stage of the proceedings, it need grant any additional time to the Prosecutor to amend the indictment further.
For this reason, the Trial Chamber will not fail to draw all the legal consequences at trial of the possible total or partial failure to satisfy the obligations incumbent on the Prosecutor insofar as that failure inter alia might not have permitted the accused to prepare his defence pursuant to Article 21 of the Statute and the principles identified in its Decision.
C. The new count (Point A, footnote 2, page 2 of the Request)
In footnote 2, page 2, the Defence notes that an entirely new charge has been added to the indictment. Count 2: "a violation of the laws or customs of war, as recognised by Articles 3(b), 7(1) and 7(3) of the Statute of the International Tribunal ("devastation not justified by military necessity") does not appear in the amended indictment of 22 November 1996.
In the absence of any factual indications in support Count 2, the Trial Chamber notes that the count is new. The Trial Chamber, pursuant to Rule 50 of the Rules, can therefore merely refer the Prosecutor to the confirming judge unless she considers that the count might be covered by the wording and contents of Counts 3 and 4.
As a matter of course, both for the reasons explained in this Decision and out of a concern that the trial begin without undue delay, the Trial Chamber will not grant the Prosecutor additional time to satisfy her obligations;
At trial, the Defence will have the opportunity to contest the admissibility of the evidence relating to the amendments to the indictment which the Trial Chamber may have not granted;
As the case now stands, the Defence Request is rejected and the accused retains the right to raise these issues again at trial.
FOR THE FOREGOING REASONS
Trial Chamber I
RULING inter partes and unanimously,
NOTES the Prosecutors amendments to the indictment;
STATES that, as the case now stands, no grounds exist for rejecting the indictment in respect of the other counts;
GRANTS the right to the accused to raise again at trial the issues mentioned in the Request;
REFERS the parties to the trial on the merits.
Done in French and English, the French text being authoritative.
Done this twenty-third day of May 1997
At The Hague
Presiding Judge, Trial Chamber I
(Seal of the Tribunal)