Case No. IT-05-87-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
22 July 2005

PROSECUTOR

v.

MILAN MILUTINOVIC
NIKOLA SAINOVIC
DRAGOLJUB OJDANIC
NEBOJSA PAVKOVIC
VLADIMIR LAZAREVIC
VLASTIMIR DJORDJEVIC
SRETEN LUKIC

_________________________________________________

DECISION ON NEBOJSA PAVKOVICíS PRELIMINARY MOTION ON FORM OF INDICTMENT

__________________________________________________

The Office of the Prosecutor:

Mr. Thomas Hannis
Ms. Christina Moeller
Ms. Carolyn Edgerton

Counsel for the Accused:

Mr. Eugène OíSullivan and Mr. Slobodan Zecevic for Milan Milutinovic
Mr. Toma Fila and Mr. Vladimir Petrovic for Nikola Sainovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Dragoljub Ojdanic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder for Mr. Sreten Lukic

 

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 ("the International Tribunal");

BEING SEISED of a "Preliminary Motion Alleging Indictment Defects" ("Motion"), filed by Nebojsa Pavkovic" ("Accused") on 1 July 2005, by which he challenges the form of the Indictment, and "Prosecution Response to the Preliminary Motion Alleging Indictment Defects Filed By the Accused Vladimir (Sic) Pavkovic" ("Notification") filed by the Prosecution on 15 July 2005,

NOTING that on 2 October 2003, Judge O-Gon Kwon confirmed the Indictment against the Accused and three co-accused Sreten Lukic, Vladimir Lazarevic and Vlastimir Đorđevic, and that the Accused was transferred to the Tribunal on 25 April 2005,

NOTING that the initial appearance of the Accused took place before Judge Iain Bonomy on 28 April 2005, at which he entered a plea of "not guilty" to all counts in the Indictment,1 and that, on 28 May 2005 pursuant to Rule 66 (A) (i), the Prosecution disclosed to the Accused English and BCS copies of the supporting material which accompanied the Indictment at confirmation,

NOTING that the Accused is charged with various crimes allegedly committed in Kosovo between 1 January 1999 and 20 June 1999 against Kosovo Albanians by forces of the FRY and Serbia, and is specifically charged under Article 7 (1) and 7 (3) of the Tribunal Statute, as follows:

(a) count 1: deportation as a crime against humanity (Article 5 (d) of the Statute);

(b) count 2: other inhumane acts as a crime against humanity (forcible transfer) (Article 5 (i) of the Statute);

(c) count 3 and 4: murder as a crime against humanity (Article 5 (a) of the Statute) and as a violation of the laws and customs of war (Article 3 of the Statute) and recognized by Article 3 (1) (a) of the Geneva Conventions;

(d) count 5: persecutions on political, racial and religious grounds as a crime against humanity (Article 5 (h) of the Statute).

NOTING that in the Motion the Defence challenges the inadequate identification in the Indictment of alleged perpetrators of the crimes for which the Accused is charged under Article 7(1) and 7 (3) of the Statute as "forces of the FRY and Serbia", a designation that makes it impossible for the Accused to determine whether these crimes are alleged to have been committed by the Army, the Police, paramilitary groups, armed citizens, common criminals, or others, and to prepare his defence,2

NOTING that the Defence requests the Trial Chamber to order the Prosecution to "state with particularity exactly what 'forces of the FRY and Serbia' [it] alleges are responsible for the commission of each of the underlying offences",3

NOTING the Prosecutionís Notification that in light of the Trial Chamberís "Decision on Vladimir Lazarevicís Preliminary Motion on Form of Indictment", "Decision on Sreten Lukicís Preliminary Motion on Form of Indictment" and "Decision on Prosecution Motion for Joinder", issued on 15 July 2005 (respectively "Decision on Lazarevicís Preliminary Motion", ďDecision on Lukicís Preliminary Motion" and "Decision on Joinder") it will not be filling a response to the Motion,4

CONSIDERING the general pleading principles set out in the Trial Chamberís Decision on Lazarevicís Preliminary Motion which, in the Chamberís view, are applicable to the present case,5

CONSIDERING that the objection raised in the Motion has already been addressed in substance by the above-mentioned Trial Chamberís decision which inter alia ordered the Prosecution to 1) specify the category of persons alleged to have committed the crimes charged by indicating which of the forces and units allegedly subordinated to the Accused were involved in the events in each municipality and specify whether it is the Prosecutionís case that only those forces and units were involved in the commission of the crimes charged;6 2) clarify to whom the expression "others known and unknown" refers and further state the identity of those participants in the JCE whose identities are known. If the identity of participants is not known, then specify the category to which they belonged;7 and 3) specify the forces of the FRY and Serbia that were allegedly involved in each of the enumerated incidents of murder,8

CONSIDERING that the Trial Chamber adopts the reasoning thereon set out in paragraphs 32, 33 and 43 of its Decision on Lazarevicís Preliminary Motion,

PURSUANT TO Rule 72, for the foregoing reasons,

HEREBY GRANTS the Motion as follows:

(a) The Prosecution is ordered to amend the Indictment by specifying the category of persons involved in the "forces of the FRY and Serbia" alleged to have committed the crimes charged;

(b) The amended indictment is to be filed no later than 15 August 2005. A table indicating all the amendments and changes made to the indictment shall be filed by the same time (reorganisation table).

(c) The Defence is to file complaints, if any, resulting from the amendments made in accordance with the above directions within fifteen days of the filing of the amended indictment;

 

Done both in English and French, the English version being authoritative.

____________________
Judge Patrick Robinson
Presiding

[Seal of the Tribunal]

Dated this twenty-second day of July 2005.
At The Hague,
The Netherlands.


1. Initial Appearance, T. 35-36, 28 April 2005
2. Motion, paras. 6-8.
3. Motion, para. 8.
4. Notification, paras. 5 and 6.
5. Decision Lazarevicís Preliminary Motion, paras. 4-8 and 14.
6. Decision on Lazarevicís Preliminary Motion, p. 21.
7. Decision on Lazarevicís Preliminary Motion, p. 21. The Trial Chamber noted that ď[w]hen the Prosecution submits that it has specified the category to which other participants in the JCE belong, it can only be referring to the phrase frequently repeated throughout the Indictment, "forces of the FRY and Serbia" and to the individual forces mentioned in specific paragraphs. However, when specifying the parties to the JCE, the Indictment repeatedly refers to the forces of the FRY and Serbia acting at the direction, with the encouragement, or with the support of the Accused and the eight others named in the Indictment "and others known and unknown". The phrase "forces of the FRY and Serbia" is thus used throughout the charges to refer to personnel who fall outside the definition of "others known and unknown" (Decision on Lazarevicís Preliminary Motion, para. 23).
8.Decision on Lazarevicís Preliminary Motion, p. 22.