Case No. IT-04-82-PT
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Mr. Hans Holthuis
22 August 2005
DECISION ON LJUBE BOSKOSKI’S MOTION CHALLENGING THE FORM OF THE INDICTMENT
The Office of the Prosecutor:
Mr. Kenneth Scott
Mr. William Smith
Counsel for the Accused:
Mr. Dragan Godzo for Ljube Boskoski
Mr. Antonio Apostolski for Johan Tarculovski
1. Trial Chamber II (“Trial Chamber”) of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seised of the “Defence Motion of Ljube Boskoski Challenging the Form of the Indictment ” filed by the defence for the accused Ljube Boskoski (“Defence”) on 25 May 2005 (“Motion”). The Motion is filed pursuant to Rule 72(A)(ii) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), alleging defects in the form of the indictment.
2. The Prosecution responded in “Prosecution’s Response to the Defence of Ljube Boskoski’s [sic] Motion Challenging the Form of the Indictment” filed by the Prosecution on 7 June 2005 (“Response”).
3. Ljube Boskoski (“Accused”) is jointly charged with Johan Tarculovski for offences allegedly committed in the village of Ljuboten in the Former Yugoslav Republic of Macedonia (“FYROM”) between 10 and 12 August 2001, in an indictment confirmed on 9 March 2005 (“Indictment”).1
4. The Indictment alleges that the Accused is individually criminally responsible in his capacity as Minister of Interior of the FYROM pursuant to Article 7(3) of the Statute of the Tribunal (“Statute”)2 for charges under Article 3 of the Statute, specifically Murder,3 Wanton Destruction of Cities, Towns or Villages,4 and Cruel Treatment.5 The Indictment further sets out General Legal Allegations regarding an alleged state of armed conflict in the FYROM,6 and Additional Facts regarding the history of the FYROM and the conflict therein.7
5. The Defence challenges the form of the Indictment pursuant to Rule 72( A)(ii) of the Rules. The Defence submits that the Indictment inadequately pleads the elements of Joint Criminal Enterprise (“JCE”) with respect to the Accused,8 and that the Indictment, in pleading the charge of superior responsibility with respect to the Accused, is vague and lacks particulars as to (1) sufficiently identified subordinates,9 (2) the required state of mind10 and (3) the required failure to prevent or punish.11 The Defence submits that the Indictment does not properly define the Albanian National Liberation Army (“NLA”), and that the Indictment lacks particulars as to the legal framework in which the NLA operated.12 The Defence challenges a number of factual contentions regarding the existence of armed conflict in the FYROM.13 The Defence further submits that there are errors of facts, or objects to the facts as stated in the Indictment,14 and that the charges made under the Geneva Conventions are not pleaded with sufficient particularity.15
6. Article 18(4) of the Statute and Rule 47(C) of the Rules provide that an indictment shall contain a concise statement of the facts and the crimes with which the accused is charged. These provisions should be interpreted in conjunction with Article 21(2) and Article 21(4)(a) and (b) of the Statute, which provide for the right of an accused to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.16 The Prosecution is required to plead the material facts underpinning the charges in the indictment with sufficient particularity to inform a defendant clearly of the charges against him, thus allowing him to prepare his defence.17
7. The materiality of a particular fact depends on the nature of the Prosecution case.18 A decisive factor in this respect is the nature of the alleged criminal conduct charged against the accused,19 and in particular, the proximity of the accused to the events alleged in the indictment.20 The materiality of facts such as the identity of the victims, the place and date of the events and the description of the events themselves necessarily depend on the alleged proximity of the accused to those events.21
8. Where an indictment is based on individual responsibility as the superior of the actual perpetrators under Article 7(3) of the Statute, the accused needs to know not only his alleged conduct forming the basis of his responsibility, but also what is alleged to have been the conduct of those persons for whom he is allegedly responsible, subject to the Prosecution’s ability to provide those particulars.22
9. In cases where individual responsibility as superior responsibility is alleged, the following material facts should be pleaded:23
a. (i) that the Accused is the superior of (ii) subordinates sufficiently identified,24 (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and (iv) for whose acts he is alleged to be responsible;
b. the conduct of the Accused by which he may be found to (i) have known or had reason to know that the criminal conduct was about to be committed or was being committed, or had been committed, by his subordinates, and (ii) any related conduct of those subordinates for whom he is alleged to be responsible. The facts relevant to the acts of the subordinates for whose acts the Accused is alleged to be responsible as a superior, will usually be stated with less precision, because the detail of those acts is often unknown, and because the acts themselves are often not critically in issue; nevertheless the Prosecution remains obliged to give the particulars which it is able to give, and
c. the conduct of the Accused by which he may be found to have failed to take necessary and reasonable measures to prevent such acts or to punish the persons who committed them.
10. A reference in an indictment to the accused as a “commander” of a camp may be sufficient to ground the charges of command responsibility, where the alleged crimes were committed in that camp.25 Further, a reference to the accused’s specific military duties has been found to be sufficient to identify the basis of his alleged command responsibility.26
11. Where the state of mind with which the accused carried out his alleged acts is relevant the Prosecution must either (i) plead the relevant state of mind itself as a material fact, in which case the facts by which that material fact is to be established are ordinary matters of evidence, and need not to be pleaded; or (ii ) plead the evidentiary facts from where the relevant state of mind is to be inferred.27 The Prosecution may not simply presume that the legal pre-requisites are met.28 In general each of these facts should be pleaded expressly, though, under certain circumstances, they can be sufficiently pleaded by necessary implication.29
12. In support of the Motion, the Defence raises objections to a number of factual issues alleged in the Indictment.30 As a preliminary matter, the Trial Chamber reminds the Defence that factual issues are to be dealt with at trial, and should not be raised as part of a challenge to the form of the indictment. The Trial Chamber further notes that many of the jurisdictional issues raised in this Motion have been disposed of in prior decisions.31
13. The Defence submits that the Indictment inadequately pleads the elements of JCE with respect to the Accused.32 Here the Trial Chamber finds, as argued by the Prosecution,33 that it is clear that the Indictment has only charged the Accused with criminal responsibility under Article 7(3) of the Statute. As the Indictment does not allege that the Accused participated in the JCE, the Trial Chamber finds it unnecessary to decide the issues raised by the Defence concerning the JCE.
14. The Defence submits that the Indictment, in pleading the charge of superior responsibility with respect to the Accused, is vague and lacks particulars as to (1) sufficiently identified subordinates,34 (2) the required state of mind35 and (3) the required failure to prevent or punish.36 The Prosecution submits that these elements have been adequately pleaded, and that this matter is in the category of matters designated by the Trial Chamber in the previous pre-trial decisions to be decided at trial.37
15. The Motion claims that the Indictment fails to sufficiently identify the subordinates of the Accused, both as a general matter and specifically by failing to make the distinction between the army and the police.38 The Response states that the forces under the effective control of the Accused are sufficiently identified as all FYROM police forces.39
16. The Indictment states that the Accused “had the overall authority and responsibility for the functioning of the police forces both regular and reserve within FYROM.”40 The Indictment further states that the Accused, in his capacity as the Minister of Interior, “exercised command and control of all FYROM police forces.”41 The Trial Chamber considers that these two paragraphs, which set out the scope of Article 7(3) liability with respect to the Accused, are unclear as to whether “all FYROM police forces” refers to only “regular and reserve” police.
17. The Trial Chamber finds further that it is not clear throughout the Indictment over which specific groups the Accused is alleged to have exercised effective control. The Indictment clearly states, as noted above, that the Accused was the superior of the regular and reserve police within FYROM. However, the Prosecution goes on to charge the Accused with superior responsibility for the acts of other groups, allegedly acting in concert with the regular and reserve police. Specifically, the Indictment alleges that the beatings at Buzalak Checkpoint were carried out by “regular and reserve police, as well as some civilians”.42 At Karpos Police Station, the Indictment alleges that beatings were carried out by “regular, reserve, and special police”.43 The Indictment states that beatings at Skopje Court II were carried out by “regular and reserve police, prison guards and some civilians”.44 Finally, the Indictment alleges that the beatings at Skopje City Hospital were carried out by “regular and reserve police and hospital personnel”.45
18. If the Accused is the superior of other groups in addition to the regular and reserve police for the purposes of 7(3) liability, the Indictment must clearly charge the Accused with effective control over the those groups. The threshold for establishing effective control over a subordinate for the purposes of Article 7(3) of the Statute, as stated in the jurisprudence of the Tribunal, is the material ability to prevent or punish criminal conduct.46 The Indictment states that the Accused, as Minister of Interior of FYROM, exercised command and control of all FYROM police forces, and “had the authority to appoint, punish, discipline, suspend, and dismiss police from duty for crimes they may have committed”.47 The Indictment alleges that the Minister of Interior was the highest authority in the Ministry of Interior and was officially responsible for public and state security.48
19. The Trial Chamber holds that for pleading superior responsibility with regard to the alleged acts of civilians, special police, prison guards, and hospital personnel within the FYROM, it is not sufficient to allege that “public and state security ” within the FYROM was part of his official responsibilities. If the Prosecution intends to charge the Accused with criminal responsibility for the acts of these other groups, it must plead the material facts underpinning these charges with sufficient detail so that the Accused may prepare his defence.49 In this case, this requires stating with particularity that the Accused had the authority to exercise control over these groups, including but not limited to the authority to appoint, punish, discipline, suspend, and dismiss them from their duties for crimes they may have committed. If the Prosecution is unable to or does not intend to make such allegations, it is required to remove these groups from the Indictment, in order to make it clear to the Accused that he is only charged with acts allegedly committed by regular and reserve police. Further, the Trial Chamber holds that the Prosecution should include in the Indictment names and further details identifying the alleged perpetrators for whom the Accused is alleged to have superior responsibility, should such information be in its possession.
20. As to the matter of the distinction between army and police forces raised in the Motion,50 the Trial Chamber finds that the references to the army in the Indictment51 are made as general background, not as material facts, and therefore need not be pleaded with the same particularity.
21. The Defence submits that the Prosecution has inadequately identified the means by which the Accused is alleged to have knowledge that criminal conduct was about to, was being, or had been committed by his subordinates.52 The Prosecution responds that the means by which the Accused obtained this knowledge are set out in the Indictment.53 The Indictment alleges that such knowledge was obtained, “among other means by his observations of property damage and mistreated detainees close to the scene of the attack in the early afternoon of 12 August 2001, meetings with participants in the attack on 12 August 2001, internal police reports, public media including daily Albanian and Macedonian newspapers, meetings with international representatives and journalists and international organisation reports produced within days and weeks of the crimes”.54 According to the case-law of the Tribunal, the Prosecution is obliged to plead either the relevant state of mind itself as a material fact, or to plead the evidentiary facts from where the relevant state of mind is to be inferred.55 In this respect, the Trial Chamber holds that the Indictment pleads the mens rea itself as a material fact, and that it has been done with sufficient particularity.
22. The Defence further submits that the post held by the Accused in the FYROM government is a civilian post, and as such is not clearly held to the same standard of responsibility under customary international law as a military commander.56 While the Prosecution makes no response to this argument, the Trial Chamber notes that, according to the jurisprudence of the Tribunal, a civilian may incur responsibility in relation to acts committed by their subordinates or other persons under their effective control.57 The Trial Chamber further finds that the scope of this role and responsibility is a matter for trial, and dismisses this argument.
23. The Defence finally submits that the Indictment fails to present either direct evidence or circumstantial evidence of the Accused’s knowledge of the offences allegedly committed by his subordinates, as required by Rule 47 (C) of the Rules.58 The Trial Chamber notes that the jurisprudence of the Tribunal is clear that when the state of mind is pleaded as a material fact, the facts from which the state of mind is established are matters of evidence that need not be pleaded.59 The Trial Chamber finds, as stated above, that the mens rea is adequately pleaded, and dismisses this argument.
24. The Defence submits that the Prosecution has failed to establish the material possibilities of the Accused to act or fail to act, or take necessary measures.60 The Defence raises the issue of whether the Accused made any effort to act, and whether such action was within the powers vested in the Accused.61 The Defence further raises factual issues regarding the material possibilities of the Accused to act, given the laws of the FYROM, the scope of his duties, and the implementation of an amnesty law.62 The Prosecution does not respond to these arguments.
25. The Indictment indicates that, following the announcement of the Prosecutor’s intention to exercise the primacy of the Tribunal over the allegations of crimes arising out of the Ljuboten attacks, the Accused was under an obligation to punish his subordinates for the crimes set forth therein.63 The Indictment further states that the duties of the Accused included an obligation to investigate the crimes set forth in the Indictment and to impose appropriate punitive measures, and that having knowledge of the perpetrators, he failed to do so.64
26. The Trial Chamber finds that the Indictment adequately pleads that the Accused had an obligation to prevent or punish the acts charged in therein, and that he failed to do so. The Trial Chamber notes that the remainder of the issues raised by the Defence with respect to these obligations and actions are factual issues to be determined at trial.
27. The Defence submits that the Indictment should “sufficiently provide legal definition of the NLA in the spirit of rules and customs of war”, and that the Indictment lacks particulars as to the legal framework in which the NLA operated.65 The Prosecution responds that the Indictment contains sufficient details about the NLA, and that further issues raised regarding the factual and evidentiary details of the dispute are matters to be tested at trial.66
28. The Trial Chamber notes that the NLA is listed as a warring party to the armed conflict in the “Additional Facts” section of the Indictment.67 As the definition of the NLA is not a material fact, it is not necessary to provide the precise legal definition of the NLA in the Indictment. The Trial Chamber finds that the facts contained in the Indictment are sufficient as to the NLA. The Trial Chamber also finds that any arguments relating to the nature of the conflict and its parties require factual determinations which are reserved for trial.68
29. The Defence submits a number of factual contentions regarding the existence of armed conflict in the FYROM, as well as certain allegations regarding military necessity.69 The Prosecution argues that these are matters to be determined at trial.70 The Trial Chamber finds that the facts as pleaded in the Indictment are sufficient,71 and again refers to the Jurisdiction Decision as to factual matters which are to be determined at trial.72
30. The Defence submits that there are errors of facts, or objects to the facts as stated in the Indictment.73 The Prosecution in response submits that matters of fact can best be determined upon presentation of evidence at Trial.74 The Trial Chamber again notes that issues involving factual determinations should be reserved for trial.75
31. The Defence submits that the Indictment does not identify with sufficient particularity which articles of the Geneva Conventions the Accused is alleged to have violated.76 The Defence further argues that the Indictment fails to meet the requirements of Rules 47(B) and 47(C) of the Rules.77 The Prosecution rejects these assertions, stating that the Geneva Conventions are cited with adequate specificity.78 The Prosecution also states that requests for further details amount to requests seeking particulars regarding material facts, which are inappropriate at this stage of the proceedings.79
32. The Trial Chamber notes that the Counts 1 and 3 of the Indictment cite violations of Article 3(1)(a) of the Geneva Conventions of 1949,80 and finds that this citation is sufficiently particular to apprise the Accused of the nature of the charge against him. The Trial Chamber also finds that the Indictment satisfies Rules 47(B) and 47 (C) of the Rules, with the exception of certain necessary clarifications as noted herein.
For the foregoing reasons and pursuant to Rule 72 of the Rules, the Trial Chamber
ORDERS the Prosecution to file an amended indictment by Monday, 5 September 2005, providing clarification of whether the Accused is charged with superior responsibility for the acts of regular and reserve police only or whether he is also charged for the acts of the following groups:
(a) “some civilians”;81
(b) “special police”;82
(c) “prison guards and some civilians”;83
(d) “hospital personnel”;84
and, if possible, to name or identify with more specificity the subordinates who participated in the alleged crimes,
DISMISSES the remainder of the Motion.
Done in French and English, the English version being authoritative.
Dated this twenty-second day of August 2005,
At The Hague,
[Seal of the Tribunal]