Case No. IT-02-65-PT

Before:
Judge May, Presiding
Judge Kwon
Judge Patrick Robinson

Registrar:
Mr. Hans Holthuis

Decision of:
4 April 2003

The Office of the Prosecutor:

Ms. Joanna Korner

Counsel for the Accused:

Ms. Sanja Turkalov, for Momcilo Gruban
Ms. Slobodanka Nedic, for Dusko Knezevic
Mr. Theodore Scudder and Mr. Dragan Ivetic, for Dusan Fustar
Mr. Jovan Babic, for Predrag Banovic

THIS 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 (“International Tribunal”),

BEING SEISED OF “Momcilo Gruban’s Preliminary Motion filed by the Defence for the accused Momcilo Gruban (“Defence”) on 23 December 2002 (“Motion”),

NOTING the “Prosecution’s Consolidated Response to Defence Preliminary Motions Alleging Defects in the Form of the Consolidated Indictment and Seeking a Separate Trial, Filed by the Accused Momcilo Gruban, Dusan Fustar, Predrag Banovic and Dusko Knezevic” filed on 24 January 2003 (“Response”),

Form of the Indictment

NOTING the Defence argument that the indictment as a whole is too vague, using phrases that have no substantial content and that the indictment should outline when the events happened, the identity of the victims and the means by which the crimes occurred.

NOTING the Prosecution’s argument that the material facts, including the identity of the victims, the time and place of the events and the means by which the acts were committed, are sufficiently pleaded within the Schedules A to F of the Indictment, and the Defence has copies of the witness statements on which the allegations are based,

CONSIDERING Article 18(4) of the Statute, requiring the Prosecutor to prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged, but that the indictment need not specify the precise elements of each crime, since all that is required is a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute,¹

CONSIDERING that this obligation must be interpreted in the light of the rights of the accused under Article 21(4)(a) and (b) of the Statute,²

NOTING Rule 47(C) of the Rules, which provides that “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”,

CONSIDERING that the pleadings of an indictment will be sufficiently particular when the material facts of the Prosecution case are concisely set out with sufficient detail to inform the accused clearly of the nature and cause of the charges against them, such that he is in a position to prepare a defence,³

CONSIDERING that the materiality of a particular fact cannot be decided in the abstract, it being dependent on the nature of the Prosecution case and that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case is the nature of the alleged criminal conduct charged to the accused, which includes the proximity of the accused to the relevant events,⁴

CONSIDERING that:

(a) the indictment lists the victims in the attached Schedules and which accused is alleged to have been personally responsible for them; and
(b) the crimes alleged to have been committed against these victims are also present as are the dates when the crimes are alleged to have occurred, and also the specific date or date range when the alleged crime took place,

CONSIDERING THEREFORE that the Trial Chamber is satisfied that, having regard to the scale of the case the Indictment has specified, to the extent possible, the identity of the victims, the alleged crimes and the dates of the crimes have been sufficiently pleaded so that the accused is sufficiently informed of the nature and cause of the charges against them, such that he is in a position to prepare a defence,

Joint Criminal Enterprise

NOTING the Defence argument that the Consolidated Indictment gives no material facts showing that the accused had ever been in the Keraterm camp and yet the Indictment charges him with liability for a joint criminal enterprise involving both this camp and Omarska camp, and further that the Consolidated Indictment does not specify which form of joint criminal enterprise the accused is charged with, nor the material facts showing that the accused was actually a member of the joint criminal enterprise ,

NOTING the Prosecution response that the Consolidated Indictment specifies which of the two camps pertains to which of the accused, as follows:

a) Paragraph 21 of the Indictment informs Momcilo Gruban of the general role he played within the camps; and
b) Paragraphs 21(a) and (b) of the Indictment informs Momcilo Gruban of the specific role he played as a shift commander within the Keraterm camp and the related Schedules C, D and F inform him of the acts he committed as an accomplice and as a participant within the joint criminal enterprise,

CONSIDERING that what must be pleaded with respect to an allegation that the accused participated in a joint criminal enterprise is:

a) the nature or purpose of the joint criminal enterprise;
b) the time at which or the period over which the enterprise is said to have existed ;
c) the identity of those engaged in the enterprise – so far as their identity is known , but at least by reference to their category as a group; and
d) the nature of the participation by the accused in that enterprise, and the nature of the participation of the accused in the enterprise,⁵

CONSIDERING that the Trial Chamber is persuaded that these requirements are satisfactorily pleaded in the Indictment with respect to the accused’s involvement in a joint criminal enterprise,

Same facts for charges under Article 7(1) and 7(3)

NOTING the Defence submission that the Prosecution uses the same facts to allege different forms of liability under Articles 7(1) and 7(3) of the Statute ,

NOTING the response of the Prosecution that with respect to Article 7(1), the Indictment outlines the modes of Article 7(1) participation, the required mens rea, the identity of participants and the natural and foreseeable consequences of the joint criminal enterprise which the accused is alleged to have participated in,

NOTING the response of the Prosecution that with respect to Article 7(3), the indictment outlines the different modes of Article 7(3) participation, the subordinates over whom the accused had control and the nature of the authority over these subordinates ,

CONSIDERING that in an Indictment alleging responsibility under Article 7 (1), the “identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail”,⁶

CONSIDERING that in a case based upon superior responsibility, pursuant to Article 7(3), the following are the minimum material facts that must be pleaded in the Indictment:

(a) (i) that the accused is the superior, (ii) of subordinates who are sufficiently identified, (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) (i) the accused knew or had reason to know that the crimes were about to be or had been committed by those others, and (ii) the related conduct of those others for whom he is alleged to be responsible. The facts relevant to the acts of those others will usually be stated with less precision, the reason being that the details of those acts (by whom and against whom they are done) is often unknown, and, more importantly, because the acts themselves often cannot be greatly in issue; and
(c) the accused failed to take the necessary and reasonable measures to prevent such crimes or to punish the persons who committed them,⁷

CONSIDERING that the Indictment includes different material facts for charges pleaded pursuant to Articles 7(1) and 7(3), and fulfils the requirements for pleading material facts with respect to each form of responsibility,

Content of Previous Judgements

NOTING the Defence argument that the Prosecution must identify the charges in the Consolidated Indictment in accordance with the finding in the Kvocka Judgement⁸ that none of the accused were criminally responsible under Article 7(3) of the Statute, and that therefore the alleged superior responsibility of the accused should be removed and the text of the indictment should also be amended to reflect this Judgement,

NOTING the Prosecution response that these objections should be dismissed as they are not relevant at this stage of the proceedings, the key question being not whether the evidence will warrant a conviction under Article 7(3) but whether or not the material facts pleaded inform the accused sufficiently of the nature and cause of the case against him, such that he is in a position to prepare his defence,

CONSIDERING that the question of whether there is sufficient evidence to warrant a conviction on any form of criminal responsibility pleaded in the Indictment is a matter trial and not a question of the form of the indictment,

PURSUANT TO RULE 72 OF THE RULES

HEREBY REJECTS THE MOTION.

Done in English and French, the English text being authoritative.

____________________
Judge May
Presiding

Dated this fourth day of April 2003
At The Hague
The Netherlands