IN THE TRIAL CHAMBER
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Dorothee de Sampayo Garrido-Nijgh
1 August 2000
DECISION CONCERNING PRELIMINARY MOTION
ON THE FORM OF THE INDICTMENT
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Nicola Piacente
Ms. Brenda Hollis
Counsel for the Accused:
Mr. Goran Neskovic
Pending before this Trial Chamber of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Law Committed in the Territory
of the Former Yugoslavia since 1991 (International Tribunal) is a preliminary
motion alleging defects in the form of the indictment which was confirmed on 25 February
2000 and reconfirmed after being amended on 7 March 2000. On 8 June 2000, the
Defendants Preliminary Motion Based on Defects in the Form of the Indictment
(Defence Motion) was filed by counsel for the accused, Momcilo
Krajinik (Defence ). On 22 June 2000, the Prosecutors
Response to Defendants Preliminary Motion Based on Defects in the Form of the
Indictment (Prosecution Motion) was filed by the Office of the
Prosecutor (Prosecution). On 4 July 2000, subsequent to leave being granted by
the Trial Chamber, the Defence filed the Defendants Reply to Prosecutors
Response to Defendants Preliminary Motion Based on Defects in the Form of the
Indictment (Defence Response).
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments
of the parties heard on 19 July 2000,
HEREBY ISSUES ITS WRITTEN DECISION.
II. ARGUMENTS OF THE PARTIES
A. The Defence
1. The Defence submits that the Prosecution must define with more
precision and clarity the names of various political groups and the accuseds
function and position in them1. The Defence also complains
that the Prosecution fails to name other persons with whom the accused is alleged to have
committed the crimes and to differentiate between their actions and those of the accused2. The Defence requests that the generalised relationship asserted in
the indictment between Radovan Karadzic and the accused be deleted3.
The Defence further submits that in paragraphs 10, 18, 20, 21, 23 and 25 of the
indictment, the Prosecution expands the time frame set out in paragraph 5 from 30 December
1992 to 31 December 19924. It is also submitted that there are
various phrases in the indictment which are unclear and merit further clarification5.
2. The Defence complains that the scope of the accuseds individual
criminal responsibility is not clearly defined and that allegations for each crime must
specify the time and place alleged, as well as the type of the accuseds
responsibility under Article 7(1) or Article 7(3) of the Statute of the International
Tribunal (Statute)6. The Defence seeks an order
that the Prosecution submit an annex as part of the indictment indicating the form of
participation (planning, instigating, etc.); the precise time and place of the alleged
criminal acts and the precise form of individual criminal responsibility alleged pursuant
to Article 7(1) or Article 7(3), or both7.
3. The Defence submits that the supporting materials do not relate to the
charges8 and further submits that an interview with the
accused which forms part of the supporting materials should be removed9.
B. The Prosecution
4. The Prosecution submits that it is not required to provide any of the
particulars requested by the Defence10 and that most of the
phrases complained of are either explained in the indictment11
or have a plain and ordinary meaning. The Prosecution submits that the Defence complaints
relate to allegations of fact which are matters to be determined at trial12.
5. The Prosecution also submits (a) that the facts provided in the
indictment are sufficiently precise because of the widespread and massive nature of the
allegations and the accuseds high level of responsibility13;
(b) that it is required neither to choose the type of liability under Article 7( 1)14 nor to choose between liability under Article 7(1) and Article
7(3)15, and (c) it is a matter for the fact finder to
determine the legal characterisation of the accuseds conduct from the evidence
6. The Prosecution further submits that the relationship between the
supporting material and the charges17, as well as the
sections of the indictment concerning general allegations and additional facts18, are not matters to be raised in a preliminary motion on the form
of the indictment .
III. APPLICABLE LAW
7. Article 18.4 of the Statute states that indictments must contain a
concise statement of the facts and the crime or crimes with which the accused is
charged under the Statute. Similarly, Rule 47(C) of the Rules of Procedure and
Evidence (Rules) states: The indictment shall set forth the name and
particulars of the suspect, and a concise statement of the facts of the case and of the
crime with which the suspect is charged.
8. The accused is entitled to particulars necessary in order for the
accused to prepare his defence and to avoid prejudicial surprise19.
However, there is a difference between the facts of the case and the evidence
required to prove those facts. The facts must be pleaded whilst the evidence is adduced at
trial. It is then for the Trial Chamber to determine at the end of the trial whether there
is enough evidence to support the charges pleaded in the indictment 20.
It follows that disputes as to issues of fact are for determination at trial21 and not via motions relating to the form of the indictment.
9. In cases where it is alleged that the accuseds liability for
crimes arising from his position as a superior, the accused is entitled to know the
Prosecution allegations as to (a) his conduct as a superior and (b) the conduct of those
for whom he is alleged to be responsible22. While decisions
by Trial Chambers have emphasised the need for precision in the indictment , the need for
precision in pleading the material facts depends on the nature of the case and the
proximity of the accused to the events. Thus, wherever the accuseds liability is
said to arise from his superior responsibility, the material facts are:
(1) the relationship between the accused and the others who did the acts for which he is alleged to be responsible; and (2) the conduct of the accused by which he may be found (a) to have known or had reason to know that the acts were about to be done, or had been done, by those others, and (b) to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who did them 23.
In such a case based upon superior responsibility, the facts
will necessarily be stated with less precision than in a case based on personal
responsibility24. A high degree of specificity relating to the identity
of the victims and the dates is not possible 25.
It is sufficient to identify the persons who committed alleged crimes and the
victims by means of the category or group to which they belong26.
10. The Trial Chamber finds that there is no lack of precision
in the pleading of the material facts in the indictment, as the facts are sufficiently
pleaded and it would be unreasonable to ask the Prosecution for further precision.27
11. Having regard to the higher level of responsibility alleged
against this accused , the Trial Chamber finds that the Prosecution has satisfied,
for the purpose of the indictment, the requirements for specificity in setting
out the means by which the alleged crimes were committed, the persons who committed
the alleged crimes, the locations, the victims and the approximate dates of
the alleged crimes. However , the Trial Chamber notes that the Prosecution has
agreed to confine the allegations in the indictment to the time period set out
in paragraph 5, thereby making the time period for the commission of crimes
alleged between 1 July 1991 and 30 December 1992.
12. The Defence requests that the Prosecution be ordered to produce
an annex to the indictment to set out the exact manner in which the accused
allegedly committed the crimes. In this request, the Defence rely on a similar
order made in Kolundija & Dosen28.
However, this case differs materially from Kolundija. In that case,
the accused are charged as shift commanders of a camp and the scope of their
responsibility is therefore limited when compared with the scope of responsibility
of the accused in this case who is alleged to have been a high ranking official
in the Bosnian Serb leadership . Because the present case is a broadly based
case involving forty-one municipalities and a wide range of offences, the degree
of specificity required in the indictment is necessarily less than that required
in cases such as Kolundija. The Prosecution is therefore not required
to provide the annex requested by the Defence as part of the indictment.
13. In this respect however, the Trial Chamber notes that the
Prosecution will be required to provide in its pre-trial brief details of the
offences allegedly committed and the precise role the accused is said to have
played. While it is open to the Prosecution to plead forms of liability in the
alternative and it is for the Trial Chamber to determine at the end of the trial
what (if any) liability is made out, the Prosecution is not thereby absolved
from the responsibility of stating in the brief how they allege that the accused
is guilty of the crimes with which he is charged. Thus, the Trial Chamber will
expect the pre-trial brief to show, with respect to each crime, what is the
nature of the alleged individual criminal responsibility of the accused and
how the Prosecution intends to make out its case.
14. Finally, with regard to the Defences submission that the
supporting materials do not reflect the charges and that the interview with the accused
provided by the Prosecution be removed from the supporting materials, the Trial Chamber
finds that these are not matters appropriately dealt with in a motion on the form of the
indictment . Matters concerning the admissibility of evidence are appropriately dealt with
PURSUANT TO Rule 72 of the Rules,
THE TRIAL CHAMBER HEREBY DISMISSES the Defence motion.
Done in English and French, the English text being authoritative.
Dated this first day of August 2000
At The Hague
The Netherlands (Seal of the Tribunal)
1- Para.20-22, 31 and 37 of the Defence Motion.
2- Para.20, 23, 24, 34, 36 and 39 of the Defence Motion.
3- Para.23 of Defence Motion and Transcript of Oral Argument heard on 19 July 2000 (Transcript), p. 39.
4- Para.27, 32 and 33 of Defence Motion.
5- Para.23, 26, 34, 38 and 41 of Defence Motion.
6- Para.28 and 33 of Defence Motion.
7- Para.47 of Defence Motion, Transcript, p.30.
8- Para.50 of Defence Motion.
9- Para.54 of Defence Motion.
10- Para.25 of Prosecution Motion.
11- Para.23 of Prosecution Motion.
12- Para.27 of Prosecution Motion.
13- Para.44, 47, 52 and 53 of Prosecution Motion, Transcript, p.37-38.
14- Para.64 of Prosecution Motion.
15- Para.72 of Prosecution Motion.
16- Para.63 of Prosecution Motion, Transcript, p.34.
17- Para.75 of Prosecution Motion.
18- Para.59 of Prosecution Motion.
19- Prosecutor v. Delalic, Decision on the Accused Mucics Motion for Particulars, Case No. IT-96-21-T, 26 June 1996, para.9.
20- Prosecutor v. Brdanin, Decision on Motion to Dismiss Indictment, Case No. IT-99-36-PT, 5 October 1999, para.15.
21- Prosecutor v. Kvocka, Decision on Defence Preliminary Motions on the Form of the Indictment (Kvocka), Case No.IT-98-30-PT, 12 April 1999, para.40.
22- Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment (Krnojelac Decision on Form of Indictment), Case No. IT-97-25-PT, 24 February 1999, para. 38.
23- Prosecutor v. Krnojelac, Decision on Preliminary Motion on Form of the Amended Indictment (Krnojelac Decision on Form of Amended Indictment), Case No. IT-97-25-PT, 11 February 2000, para.18.
25- Kvocka, para.17.
26- Krnojelac Decision on Form of the Indictment, para.46 and 55. An accused may be charged either alternatively or cumulatively under Article 7(1) and Article 7(3) of the Statute. Whether the charges are substantiated based on the evidence presented is a matter to be dealt with at trial: Prosecutor v. Kordic and Cerkez, Decision on the Joint Defence Motion to Strike paragraphs 20 and 22 and all References to Article 7(3) as Providing a Separate or an Alternative Basis for Imputing Criminal Responsibility, Case No. IT-95-14/2-PT, 2 March 1999, para.6.
27- The Prosecution is not required to provide evidence in the indictment but only to plead the material facts.
28- Prosecutor v. Kolundija and others, Decision on Preliminary Motions (Kolundija), Case No. IT-95-8-PT, 10 February 2000, para.15.