Case No. IT-98-29/1-PT
Judge Carmel Agius, Presiding
Judge Kevin Parker
Judge Jean Claude Antonetti
Mr. Hans Holthuis
18 July 2005
DECISION ON DEFENCE PRELIMINARY MOTION UNDER RULE 72(A)(ii)
Counsel for the Prosecutor:
Mr. Chester Stamp
Counsel for the Accused:
Mr. Branislav Tapuskovic
1. Trial Chamber II (“Trial Chamber”) of the International 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 a “Defence Preliminary Motion Under Rule 72(A)(ii)” (“Motion”). The Motion was filed by counsel for Dragomir Milosevic (“Accused”) on 3 February 2005 and alleges defects in the form of the indictment. A “Prosecution Response to Defence Preliminary Motion Under Rule 72(A)(ii)” (“Response”) was filed by the Prosecution on 17 February 2005.
2. The Accused has been charged jointly with Stanislav Galic in an indictment confirmed on 24 April 1998 (“Joint Indictment”)1 and made public by an order of the Trial Chamber on 2 November 2001.2 An ex parte and confidential Trial Chamber order on 19 March 1999 authorised the Prosecution to file a redacted version of the indictment comprised solely of the charges related to the Accused.3 On 26 March 1999, the redacted version of the indictment (“Redacted Indictment”) was filed with the Registry.4
3. The Accused is charged with crimes relating to a campaign of shelling and sniping by Bosnian Serb forces against the civilian population of Sarajevo in which thousands of civilians were allegedly killed or injured. The Accused is charged with one count of unlawfully inflicting terror upon civilians5 and two counts of attacks on civilians6 as violations of the laws or customs of war, under Article 3 of the Statute of the Tribunal (“Statute”); as well as two counts of murder7 and two counts of inhumane acts8 as crimes against humanity, under Article 5 of the Statute. The Joint Indictment alleges that the Accused is criminally responsible for these crimes both individually, under Article 7(1) of the Statute,9 and as a superior, under Article 7(3) of the Statute,10 while commander of the Sarajevo Romanija Corps.11
4. The Accused surrendered to the Tribunal on 2 December 2004, and his initial appearance based on the Joint Indictment was held on 7 December 2004 (“Initial Appearance”). On 24 February 2005, an order was issued by the Trial Chamber directing the Registrar to serve the Accused with the Redacted Indictment (“Order”).12 The Redacted Indictment is therefore the operative indictment and for the purposes of this Decision the parties’ arguments relating to the Joint Indictment will be considered in relation to the Redacted Indictment as identical.
5. The Defence raises in the Motion several issues that were effectively resolved by the 24 February 2004 Order: (1) the Joint Indictment used at the Initial Appearance was confusing to the Accused;13 (2 ) the Prosecution only disclosed the supporting material that relates to the Accused and failed to disclose the parts that relate to the co-accused in the Joint Indictment, Stanislav Galic;14 and (3) as of the filing of the Motion, the Accused had not been served with the Redacted Indictment.15
6. The Trial Chamber notes that in the 24 February 2005 Order, the Trial Chamber determined that the Redacted Indictment was “essentially identical” to the Joint Indictment and that the Accused had suffered no prejudice as a result.16 Furthermore, considering the fact that the charges in the Redacted Indictment relate exclusively to the Accused, the issue regarding the disclosure of supporting material relating to the formerly co-accused, Stanislav Galic, has also been resolved by the Order. Finally, the Trial Chamber notes that the Order directed the Registrar to serve the Accused with the Redacted Indictment. Therefore, it is the view of the Trial Chamber that the above-mentioned issues have been disposed of without prejudice to the Accused by the 24 February 2005 Order.
7. The jurisprudence of the Tribunal has established general principles for pleading. Article 18(4) of the Statute provides that an indictment shall contain a concise statement of the facts and the crimes with which the accused is charged. Rule 47 (C) of the Rules of Procedure and Evidence (“Rules”) provides that the indictment shall set forth the name and particulars of the suspect, and a concise statement of facts of the case and of the crimes with which the suspect 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, respectively, that the accused is entitled to a fair hearing, has a right to be informed of the nature and cause of the charges against him, and is entitled to adequate time and facilities to prepare his defence. These entitlements require that the Prosecution plead the material facts underpinning the charges in the indictment with sufficient particularity to enable the accused to clearly understand the charges against him and be able to prepare his defence accordingly.17
8. The materiality of a particular fact cannot be decided in the abstract and is dependent on the nature of the Prosecution’s case.18 A decisive factor in determining the degree of specificity with which the Prosecution is required to particularize the facts in the indictment is the nature of the alleged criminal conduct charged. The materiality of facts such as the identity of the victim, the place and date of the events which the accused is alleged to be responsible, and the description of the events themselves, necessarily depends upon the alleged proximity of the accused to those events.19
9. Given the massive scale of many of the alleged crimes, it may be impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes. The nature of such a case would not demand that each and every victim be identified. The Prosecution need not specify every single victim in order to meet its obligation of specifying the material facts of the case in the indictment. Nevertheless, since the identity of the victims is information that is valuable to the preparation of the defence’s case, if the Prosecution is in a position to name the victims, it should do so.20
10. Where the accused is alleged to have personally carried out the acts underlying the crimes in question, it is necessary for the Prosecution to set out the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed “with the greatest precision”.21 However, where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation or execution of the alleged crimes, then the Prosecution is required to identify the particular acts or the particular course of conduct on the part of the accused which forms the basis for the charges in question. In such circumstances the Prosecution must also plead the acts for which it is alleged the accused is responsible, subject to the Prosecution’s ability to provide such particulars. The precision required for these acts, however, is not the same as required when the accused is alleged to have personally committed the acts.22
11. Where criminal responsibility is alleged under Article 7(3), the following material facts must be pleaded: (1) the accused is the superior of (a) subordinates sufficiently identified, (b) over whom he had “effective control” and (c) for whose acts he is alleged to be responsible; (2) the conduct of the accused by which he may be found to (a) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates, and (b) the related conduct of those others for whose acts the accused is alleged to be responsible as a superior; and (3) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.23
12. The Prosecution need not plead the evidence by which the material facts are to be proven. Such evidence may be provided by way of pre-trial discovery.24 However, where material facts are not pleaded with sufficient particularity, the Prosecution cannot cure a defective indictment through supporting material and pre -trial briefs.25
13. The Defence submits that the form of the Joint Indictment is defective due to the Prosecution’s failure to plead material facts. The Defence submits that the Joint Indictment has failed to (1) identify the parties to the armed conflict, (2) identify the subordinates of the Accused, and (3) plead material facts related to the “effective control” exercised by the Accused over his subordinates. The Defence submits that as a result of these defects in the Joint Indictment, the Accused can neither understand the nature and reasons for the accusations against him nor have the appropriate possibilities to validly and timely prepare his defence.26 The Defence therefore submits that the Joint Indictment violates the minimum guaranteed rights of the Accused, as provided by Article 21(4)(a) and (b) of the Statute,27 and requests the Trial Chamber to direct the Prosecution to file a further redacted indictment with the recommendations from the Motion incorporated therein.28
14. The Defence submits that the Prosecution has alleged the existence of hostilities and an armed conflict without pleading the identity of the parties to the hostilities and armed conflict. The Defence notes that although paragraph 2 of the Joint Indictment refers to “armed forces supporting the Serbian Democratic Party” and “parts of the Yugoslav People’s Army”, there is no indication anywhere in the Joint Indictment as to the precise identity of these “armed forces”.29 The Defence concedes that the Joint Indictment alleges that the Accused, as the commander of the Sarajevo Romanija Corps, was one of the participants in the armed conflict. However, the Defence contends that apart from this, the Joint Indictment fails to identify any of the other parties to the armed conflict.30 Furthermore, according to the Defence, paragraph 2 of the Joint Indictment alleges that “armed hostilities” took place in Sarajevo and that the city was blockaded, but no reference has been made as to the identity of the actor(s) in these events.31
15. The Defence argues that pleading the identity of the parties to the armed conflict is essential because of the large geographic area in which the armed conflict is alleged to have taken place (i.e., “the entire territory of an internationally recognized state”), and the long period of time in which the armed conflict is alleged to have lasted (i.e., “about 44 months”).32 It is the submission of the Defence that the existence of other actor(s) in the conflict is a “legally relevant fact” which must be designated with a high degree of precision and “clearly and undoubtedly determined” in the indictment.33
16. The Prosecution, on the other hand, submits that the identity of the parties to the conflict has been pleaded with sufficient particularity in the Joint Indictment.34 The Prosecution contends that because the Joint Indictment does not plead the existence of an international armed conflict, there is no need to specify all the parties to the conflict nor has it been the practice of the Tribunal to do so.35 The Prosecution submits that it is sufficient to plead that (1) an armed conflict existed during the time of the crimes alleged in the Joint Indictment, (2) the alleged offences were related to attacks committed by forces under the command of the Accused, and (3) the alleged offences were committed against civilians in Sarajevo who were not parties to the conflict.36 It is the submission of the Prosecution that the details identifying the other parties to the armed conflict are matters to be set out in a pre-trial brief describing the evidence for trial.37
17. The Trial Chamber rejects the submission of the Defence. The Appeals Chamber in Hadzihasanovic held that where the Prosecution relies on the existence of an international armed conflict, the Prosecution must plead as a material fact the international character of the armed conflict and the “basis upon which such an assertion is made”, including the identity of the foreign entities.38 However, where there is no claim of an international armed conflict and the alleged armed conflict is internal in nature, the jurisprudence of the Tribunal has established no equivalent requirement.39
18. The Trial Chamber recognizes that a determination regarding the materiality of specific facts cannot be decided in the abstract and therefore directs its attention to the specific facts of the case.40 The Trial Chamber finds that the Joint Indictment has clearly pleaded the existence of an armed conflict at the time and place relevant to the alleged crimes of the Accused. The Prosecution has also clearly identified the relevant party to the armed conflict for which the Accused stands charged (i.e., the Sarajevo Romanija Corps of the Bosnian Serb Army).41 The fact that the offences for which the Accused has been charged were allegedly committed against the civilian population of Sarajevo, and not against combatants of an opposing party to the conflict, further militates in favour of the adequacy of the pleading. The Joint Indictment has sufficiently put the Accused on notice regarding the allegations that an armed conflict existed and that the cause of the charges emanates from acts committed by the Accused against the civilian population of Sarajevo. Evidence identifying the other parties to the armed conflict and of the link between the acts of the Accused and the armed conflict must be produced by the Prosecution during pre-trial disclosure. It is the view of the Trial Chamber, however, that at this juncture the Accused is able to adequately prepare his defence and cannot claim any prejudicial surprise in this regard.
19. The Defence submits that the Prosecution has failed to sufficiently identify the subordinates over whom the Accused allegedly had effective control, and that the identity of these subordinates is a material fact which must be pleaded with particularity.42 The Defence asserts that the Joint Indictment refers to members of “[his] forces and persons under [his] control”, and the conduct of “subordinate persons”, without specifying the identity of these individuals or forces.43 Moreover, the Defence notes that paragraph 2 of the Joint Indictment refers to “armed forces supporting the Serbian Democratic Party” and “parts of the Yugoslav People’s Army ”,44 while paragraph 10 of the Joint Indictment merely refers to “forces comprising and attached to the Sarajevo Romanija Corps”.45 The Defence submits that the precise identity of these other subordinate forces has not been sufficiently pleaded.
20. The Prosecution responds by arguing that in order to make a determination on whether material facts have been sufficiently pleaded, it is necessary to assess the indictment as a whole and not to assess individual paragraphs in isolation or out of context.46 The Prosecution submits that all counts in the Joint Indictment include the prefatory words: “From about 10 August 1994 to 21 November 1995, DRAGOMIR MILOSEVIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps.”47 It is the submission of the Prosecution that when the Joint Indictment is read in its entirety it is abundantly clear that the Accused has been charged as the commander of the Sarajevo Romanija Corps.48
21. The Trial Chamber rejects the submission of the Defence. The reference to “armed forces supporting the Serbian Democratic Party” and “parts of the Yugoslav People’s Army” was made in the “Background” section of the Joint Indictment and should be properly read only to place the material facts in contexts in relation to each of the counts in the Joint Indictment.49 Introductory information of this nature is not a material fact which the Accused is entitled to have pleaded with particularity.50 Furthermore, as a general principle of pleading, it is well recognized that each paragraph should not be read in isolation from the rest of the indictment but rather should be considered in the context of the other paragraphs in the indictment.51 It is the view of the Trial Chamber that the reference to the above-mentioned armed forces was made only in relation to events leading up to the armed conflict. This is made clear by the fact that the reference to these armed forces is prefaced by the words “before the conflict began”.52 The Joint Indictment proceeds in paragraph 8 to allege that by 10 September 1992, the Sarajevo Romanija Corps “controlled all the Bosnian Serb territory around Sarajevo, including established confrontation lines and artillery positions”.53 Each of the counts clearly specifies that (1) the period for which the Accused is answerable for begins on 10 August 1994, and (2) the Accused is charged as commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps.54 Therefore, the Trial Chamber finds that when read in its entirety, the Joint Indictment has sufficiently identified the subordinates of the Accused.55
22. The Defence notes that paragraph 10 of the Joint Indictment alleges that the Accused demonstrated his control and authority over the Sarajevo Romanija Corps by negotiating, implementing agreements, and participating in negotiations.56 According to the Defence, the Joint Indictment has failed to specify the identity of the parties with whom these negotiations and agreements took place. It is the submission of the Defence that these are material facts which must be pleaded.57 The Prosecution responds by submitting that details identifying the parties with whom the Accused negotiated with, or entered into agreements with, need not be pleaded and are matters to be set out in a pre-trial brief describing the evidence for trial.58
23. The Trial Chamber rejects the submission of the Defence. Where negotiations or agreements entered into by an accused are acts which are alleged to have formed the basis for the individual criminal responsibility of the accused under Article 7(1), the identity of the negotiating or contracting parties would constitute a material fact which must be pleaded.59 However, in the present circumstances, the negotiations and agreements have been alleged merely to demonstrate, under Article 7(3), the authority and control that the Accused exercised over the Sarajevo Romanija Corps. In Blaskic, the Appeals Chamber held that a description of an accused as the “commander” of armed forces which have been duly identified is sufficient to establish the material fact that the accused was in a position of superior responsibility.60 In the present case, the Joint Indictment clearly states not only that the Accused was “commander” of the Sarajevo Romanija Corps, but also that he had authority to negotiate and enter into agreements on behalf of the Sarajevo Romanija Corps. It is therefore the view of the Trial Chamber that the pleadings in the Joint Indictment provide sufficient grounds under Article 7(3) of the Statute for asserting that the Accused was in a position of superior authority. The manner in which these material facts are to be proved is a matter of evidence for pre-trial disclosure, not for pleading.61 Therefore, the submission of the Defence is rejected.
For the foregoing reasons and pursuant to Rule 72 of the Rules, the Trial Chamber hereby:
REJECTS the Motion in all respects.
Done in both English and French, the English version being authoritative.
Dated this 18th day of July 2005
At The Hague
Judge Carmel Agius
[Seal of the Tribunal]