Case No.: IT-95-13/1-PT
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker
Mr Hans Holthuis
20 July 2004
DECISION ON FORM OF MODIFIED CONSOLIDATED AMENDED INDICTMENT
The Office of the Prosecutor:
Mr. Jan Wubben
Mr. Mark J. McKeon
Counsel for the Accused Mile Mrksic:
Mr. Miroslav Vasic
Counsel for the Accused Miroslav Radic:
Mr. Borivoje Borovic
Ms. Mira Tapuskovic
Counsel for the Accused Veselin Sljivancanin:
Mr. Novak Lukic
Mr. Momcilo Bulatovic
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 two preliminary motions alleging defects in the form of the indictment filed by counsel for the Accused Mile Mrksic (“Mrksic”) on 12 March 20041 and by counsel for the Accused Veselin Sljivancanin (“Sljivancanin”) on 11 March 2004,2 and of the Prosecutions’ response thereto filed on 25 March 2004.3
2. The initial indictment against Mrksic, Sljivancanin and Miroslav Radic (“Radic”) (collectively “the accused”) was confirmed by Judge Fouad Riad on 7 November 1995.4 This indictment was amended to include one other co-accused, Slavko Dokmanovic, on 3 April 1996.5 A further amended indictment against all four was filed on 2 December 1997.6 Slavko Dokmanovic passed away on 29 June 1998, with the result that trial proceedings against him were terminated.7 Mrksic surrendered to the Tribunal on 15 May 2002, and the Prosecution was given leave to file an amended indictment – termed the Second Amended Indictment8 – against him alone.9 Mrksic subsequently alleged that it was defective: the Trial Chamber decided on these allegations on 19 June 2003,10 and ordered the Prosecution to amend the Second Amended Indictment in the terms set in its decision.
3. Radic and Sljivancanin entered into the custody of authorities on 21 April 2003 and 13 June 2003 respectively. On 16 February 2004 both entered pleas of not guilty to all charges in the 1997 Amended Indictment.11 Radic filed a motion alleging defects in the form of the 1997 Amended Indictment which the Trial Chamber dismissed because the alleged defects pertained to an earlier indictment which the Prosecution was seeking to amend.12 The Prosecution sought leave on 21 July 2003 to file a Consolidated Amended Indictment which concerned all three accused.13
4. In 2003, all three accused filed separate preliminary motions pursuant to Rule 72 (A)(ii) alleging defects in the form of the Consolidated Amended Indictment.14 On 23 January 2004, the Trial Chamber ordered the Prosecution to modify the Consolidated Amended Indictment as set out in its decision and to file it once modified.15 The Trial Chamber also ordered it to provide the supporting material concerning newly pleaded material facts.16
5. The Prosecution complied on 9 February 2004.17 On 16 February 2004, Radic and Sljivancanin entered a plea of not guilty on the new charges contained in the Modified Consolidated Amended Indictment.18 It is in relation to the Modified Consolidated Amended Indictment that the most recent preliminary motions have been filed by Mrksic and Sljivancanin.
6. In the Modified Consolidated Amended Indictment, the three accused are charged with various offences allegedly committed subsequent to the Serb takeover of the city of Vukovar (Republic of Croatia), pursuant to Articles 7(1) and 7(3) of the Statute of the Tribunal (“Statute”), 19 namely :
(a) persecutions,20 extermination,21 and inhumane acts,22 as crimes against humanity;
(b) cruel treatment23 as a violation of the laws and customs of war;
(c) murder, as both a crime against humanity24 and a violation of the laws and customs of war25 and
(d) torture, as both a crime against humanity26 and a violation of the laws and customs of war.27
7. Although the Decision on Form of Second Amended Indictment was limited in application to Mrksic, it set out the general pleading principles which are applicable to the present case.28 The Trial Chamber finds it unnecessary to reproduce those principles here, but affirms their applicability to the present decision.
8. Mrksic and Sljivancanin submit that the form of the Modified Consolidated Amended Indictment is defective, generally alleging that the Prosecution has not set out all of the relevant material facts to allow them to properly prepare their case. The Prosecution generally responds that all relevant material facts have been provided and that the sufficiency of the evidence is a matter for trial.
9. For ease of analysis the Trial Chamber has divided the objections of Mrksic and Sljivancanin into two categories:
(a) Objections on grounds of vagueness or lack of particulars
(b) Clarification of superior responsibility
A. Objections on grounds of vagueness or lack of particulars
(a) SAO SBWA Government meeting
10. Mrksic seeks clarification of why the reference to a meeting of the SAO SBWS in Velepronet on 20 December 1991 was removed following the Trial Chamber’s order “to supplement its pleadings in the Consolidated Amended Indictment regarding the said meeting so that its relevance to the allegations contained therein becomes evident”.29 The Prosecution states in response that no charges stemmed from the reference to the SAO SBWS meeting and it was mentioned for background information only.30
11. The Trial Chamber has previously held that the Prosecution is free to choose how to plead its case, as long as it sets out the material facts that will allow the defence to meet the case.31 Whether or not there are other allegations that could have been made is irrelevant ; this decision may only address the case which has been pleaded.32 It is clear from the jurisprudence of this Tribunal that no basis of criminal responsibility may be raised at trial which was not pleaded in the indictment.33 Hence, facts excluded from the indictment are irrelevant for the purposes of determining the validity of the form of indictment so long as the material facts are included.
12. The Trial Chamber agrees with the Prosecution that the removal of the reference to the SAO SBWS meeting does not affect the form of the indictment. The objection of Mrksic is therefore rejected.
(b) Involvement of Sljivancanin and Mrksic in negotiations over evacuation of patients
13. In the Decision on Form of Consolidated Amended Indictment, the Trial Chamber held that the material facts regarding the alleged participation of Sljivancanin and Mrksic in negotiations held in Zagreb on 18 November 1991 over the evacuation of patients at Vukovar Hospital, and their subsequent disregard of the agreements reached, were insufficiently pleaded. The Trial Chamber ordered the Prosecution to plead its case more specifically with regard to whether, in particular, Sljivancanin and Mrksic were acting pursuant to the agreement reached.34
14. The Prosecution has amended its pleading to provide specific details of the agreement reached on 18 November 1991. The Modified Consolidated Amended Indictment now expressly states that Sljivancanin and Mrksic were aware of that agreement,35 describes the responsibilities for evacuation imposed by the agreement,36 as well as the actions taken by Sljivancanin and Mrksic in pursuance of that agreement.37 It is the Trial Chamber’s view that those particular negotiations are sufficiently pleaded.
15. In its amendments to paragraphs 9(b) and 11(b), however, the Prosecution has also inserted a reference to “further negotiations over the evacuation of patients” which Sljivancanin and Mrksic are alleged to have participated in. Sljivancanin and Mrksic complain that these “further negotiations” are insufficiently pleaded.38 In particular, they submit that it is not clear what type of negotiations Mrksic and Sljivancanin are alleged to have participated in, when and where and between whom the negotiations were held, and what the conclusions of such negotiations were.
16. In response, the Prosecution has underlined the notes of an interview with Dr. Vesna Bosanac, in the supporting material it provided pursuant to the Decision on the Consolidated Amended Indictment, as evidence that these negotiations are sufficiently pleaded in the Modified Consolidated Amended Indictment.39 However, the Trial Chamber has examined these and has been able to ascertain that they contain no reference to negotiations conducted over the evacuation.
17. The Trial Chamber is of the view that, while there are sufficient details provided in the Modified Consolidated Amendment Indictment of the negotiations of 18 November 1991, the “further negotiations” mentioned in paragraphs 9(b) and 11(b) are insufficiently pleaded, a defect which is not remedied by the supporting material indicated by the Prosecution. The role of these further negotiations, the parties to them, and the additional responsibilities incurred by Sljivancanin and Mrksic as a result remain unclear. The objections of Sljivancanin and Mrksic are upheld, and the Prosecution is ordered to plead its case more specifically, in particular stating where, when and between whom the “further negotiations” mentioned in paragraphs 9(b) and 11( b) took place, and what the outcome of those negotiations was.
(c) Identity of sick and wounded detainees
18. In its Decision on Form of Second Amended Indictment, the Trial Chamber ordered the Prosecution to disclose the identities of as many of the sick and wounded detainees referred to as were available to it.40 In its Decision on Form of Consolidated Amended Indictment, the Trial Chamber noted the measures taken by the Prosecution in attempting to comply with this order and urged the Prosecution “to continue in its efforts to supplement them as best it can and provide them to the accused”.41
19. Mrksic submits that the Prosecution has failed to comply with the Trial Chamber’s order, since it “did not make any effort in clarifying its allegations”.42 In response, the Prosecution submits that this was not, in fact, a specific order made by Trial Chamber but rather, the encouragement of an ongoing process.43 The Trial Chamber agrees with this characterisation and notes the efforts which the Prosecution states it has made in response to the Decision on Form of Consolidated Amended Indictment, including the provision of a revised victim list annexed to the Modified Consolidated Amended Indictment.44 The Trial Chamber has previously noted that the absence of knowledge of the identities of victims is a common occurrence during armed conflict, and to require a high degree of specificity in this matter would be impracticable.45 The Trial Chamber considers that the Indictment in its present form informs the accused in sufficient detail of the case they have to meet in this respect. The objection is therefore rejected; however, the Trial Chamber reiterates its statement that the Prosecution should continue its efforts to supplement the details concerning the identities of the victims and provide them to the accused as expeditiously as possible.
(c) Identity of forces directly involved in evacuation of patients
20. In its Decision on Form of Consolidated Amended Indictment, the Trial Chamber held that, if it was the Prosecution’s case that Sljivancanin held both de jure and de facto power over forces under his command, the Prosecution was to identify the forces over which Sljivancanin held a de jure position of superiority.46 In the Modified Consolidated Amended Indictment, the Prosecution has amended its pleading in paragraph 18 to the following:
Veselin Sljivancanin was the security officer of the 1st gmtbr and OG South and as such de facto was in charge of a military police battalion subordinated to the 1st gmbtr. Veselin Sljivancanin had de jure and de facto authority over those Serb forces, including members of the JNA and members of the TO and volunteer and paramilitary units as referred to in paragraph 7 in this indictment, that were directly involved in the evacuation of Vukovar Hospital.47
21. The accused Sljivancanin objects that the use of the term “Serb forces” in paragraph 18 is general, imprecise and inconsistent, since it suggests that those directly involved in the evacuation of Vukovar Hospital included not only JNA members but also members of the TO and volunteer and paramilitary units. 48 Throughout the rest of the Indictment members of the JNA forces alone are referred to as having been directly involved in the evacuation.
22. The Trial Chamber is of the view that the use of the term “Serb forces” in paragraph 18, in conjunction with the definition of this term given in paragraph 7, is inconsistent with pleadings concerning the evacuation of Vukovar Hospital in paragraphs 28, 32 and 33. Although precise details of the material facts are generally a matter of evidence and therefore pre-trial discovery, material facts must nevertheless be pleaded.49 The inconsistency in the Indictment means that there remains doubt over whether it is alleged that members of the TO, volunteer and paramilitary units are also alleged to have been directly involved in the evacuation. The Trial Chamber is of the view that this inconsistency affects the ability of the accused to know the case against them.50 The accused are entitled to clarification of this point, and the objection is therefore upheld.51 If it is the Prosecution’s case that members of the TO and volunteer and paramilitary units were directly involved in the evacuation of Vukovar Hospital, they should amend paragraphs 28, 32 and 33 accordingly. If this is not the Prosecution’s case, it should not use the term “Serb forces” in paragraph 18 in reference to direct participants in the evacuation of Vukovar Hospital and should instead restrict its reference to members of the JNA forces.
B. Clarification of superior responsibility
(a) Authority of Vujovic and Vujanovic
23. Paragraph 8 of the Modified Consolidated Amended Indictment names Miroljub Vujovic and Stanko Vujanovic as participants in the alleged joint criminal enterprise and states that their roles included, but were not limited to, the following:
(a) Miroljub Vujovic, during the time relevant to this indictment, was the commander of the Serb TO detachment called Petrova Gora in Vukovar.
(b) Stanko Vujanovic, during the time relevant to this indictment, was the commander of a TO unit in Vukovar. His property at Nova Ulica 81 in the Ptrova Gora section of Vukovar served as the command post for Serb forces operating in the area.
(c) Both Miroljub Vujovic and Stanko Vujanovic had command over Serb forces responsible for the mistreatment and killing of non-Serbs taken from the Vukovar Hospital to the Ovcara farm.
24. Mrksic submits that paragraph 8 implies, first, that all forces responsible for the mistreatment and killing of non-Serbs taken from the Vukovar Hospital were at the relevant time under the command of Vujovic and Vujanovic and, secondly, that those two men were in command of TO units only.52 Paragraphs 35 to 38, however, describe Serb forces consisting of “JNA, TO, volunteer and paramilitary units” as being involved in the killings on the Ovcara farm. Mrksic claims that this is inconsistent, as it is unclear whether Vujanovic and Vujovic had control over all those participating in the killings on the Ovcara farm, or whether there were participants who were not under their control.53
25. In its previous decisions in these proceedings, the Trial Chamber has repeatedly directed the accused to restrict their arguments to new issues.54 It should be emphasised that the right conferred by Rule 50(C) on the accused to file a preliminary motion alleging defects in the form of an amended indictment is directed to the material added by way of amendment, and not to material present in the original indictment which was not objected to at an earlier stage.55 The issue of authority of Vujovic and Vujanovic does not arise from any new amendment to the Consolidated Amendment Indictment. In principle, therefore, Mrksic’s complaint should be rejected.
26. However, in paragraph 22 of this decision the Trial Chamber has underlined the need for the Prosecution to be consistent in its use of the term “Serb forces” and to identify with precision the groups responsible for the acts alleged in the Modified Consolidated Amended Indictment. Mrksic has identified an inconsistency, either in the Prosecution’s description of the groups over which Vujovic and Vujanovic had command, or in the allegations concerning the identity of those who participated in the mistreatment and killings of non-Serbs taken from Vukovar Hospital to Ovcara Farm. The Trial Chamber, in the exercise of its discretion, upholds Mrksic’s objection. If it is the Prosecutions case that Vujovic and Vujanovic had command over the TO units alleged to have been among the “Serb forces” responsible for the mistreatment and killings, or that Vujovic and Vujanovic had command over members of the “Serb forces” other than the said TO units, the Prosecution needs to plead so in terms. The Trial Chamber therefore orders the Prosecution to amend its pleadings so as to resolve this inconsistency.
27. For the foregoing reasons, pursuant to Rule 72 of the Rules, the Trial Chamber decides that the Motion is partly granted as set out in paragraphs 17, 22 and 26 of this Decision. The Prosecutor is directed to amend the Modified Consolidated Amended Indictment accordingly and to file and serve an amended indictment as soon as possible, but no later than 17 August 2004.
Done in both English and French, the English version being authoritative.
Dated this 20th day of July 2004
At the Hague,