DECISION ON MOTION BY THE ACCUSED ESAD LANDZO BASED ON DEFECTS
IN THE FORM OF THE INDICTMENT
The Office of the Prosecutor:
Counsel for the Accused:
On 28 June 1996, the accused, Esad Landzo, submitted to 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") a Motion based on Defects in the Form of
the Indictment ("Motion") pursuant to Rules 72 and 73 of the International
Tribunalís Rules of Procedure and Evidence ("Rules"). The Office of the
Prosecutor ("Prosecution") responded in writing to the Motion on 10 September
1996. The parties orally presented their arguments on 1 October 1996.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the oral arguments of the parties, HEREBY ISSUES ITS DECISION.
1. The indictment in which Esad Landzo is charged ("Indictment") includes a
total of 49 counts against the accused and three other persons. It was originally
confirmed on 21 March 1996. In the Indictment, the Prosecution asserts that the accused
Esad Landzo is responsible for the alleged direct participation in the mistreatment and
killing of several detainees in the Celebici camp (Counts 1-2, 5-6, 7-8, 9-10, 11-12,
15-17, 24-26, 27-29, 30-32, 36-37 and 46-47).
2. The Defence asks the Trial Chamber, pursuant to Rule 54, to order the Prosecution to
amend the Indictment.
B. Applicable Provisions
3. The Motion is brought pursuant to Rule 72, which authorises the filing of preliminary motions, and Rule 73, which sets out a non-exhaustive list of the motions that an accused may submit. Rule 73 provides, inter alia, that an accused may make "objections based on defects in the form of the indictment." Articles 18 and 21 of the Statute and Sub-rule 47 (B) provide the foundation for the arguments articulated in the Motion. Article 18 provides in paragraph 4 :
Upon a determination that a prima facie case exists, the Prosecutor shall prepare an
indictment containing a concise statement of the facts and the crime or crimes with which
the accused is charged under the Statute. The indictment shall be transmitted to a judge
of the Trial Chamber.
Sub-rule 47 (B) states that "StChe 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." In addition, sub-paragraph 4(a) of Article
21 provides that an accused is entitled "to be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against him".
4. The Defence asserts that several counts of the Indictment are too general, imprecise
and unclear, as they fail to establish which concrete acts were committed by the accused
Esad Landzo himself, as opposed to those committed by "others". The Prosecution
on the contrary opposes the Motion primarily on the ground that the Indictment is in
accordance with Article 18(4) of the Statute and Sub-rule 47(B) of the Rules as it
contains a "concise statement of the facts and the crime or crimes with which the
accused is charged." The Prosecution notes that further detailed particulars can be
found in the supporting materials.
5. The Trial Chamber does not consider the Indictment to be too general or imprecise.
The standard the Indictment has to meet, as set out in the Statute, is that of containing
a "concise statement of the facts". The Indictment before the Trial Chamber
contains all the necessary information for the Defence to prepare its defence: the
identity of the victim, the place and approximate time of the alleged crime and the means
by which it was committed. It is the alleged direct participation in the acts that entails
his personal criminal responsibility (Article 7(1) of the Statute). It is therefore
unimportant at this stage to determine with greater detail the exact nature of his
participation and what was the role of the "others" in the event.
6. Secondly, the Defence contends that due to the cumulative nature of the charges, the
Indictment charges the accused, Esad Landzo, twice for one single criminal event. The
Prosecution on the other hand stresses the fact that the separate charges reflect and
address different aspects of the alleged criminal conduct of the accused Esad Landzo. The
Prosecution also points out that challenges to the facts are not appropriate here, and
that, in any event, the evidence the Prosecution has revealed to the Defence supports the
7. The Trial Chamber denies the Motion on this second ground, concerning the cumulative nature of the charges. An identical issue was raised in the case of Prosecutor v. Tadic, in which the Trial Chamber considered the matter to be relevant only to the penalty considerations, if the accused were ultimately to be found guilty of the charges in question:
In any event, since this is a matter that will only be relevant insofar as it might
affect penalty, it can best be dealt with if and when matters of penalty fall for
consideration. What can, however, be said with certainty is that penalty cannot be made to
depend upon whether offences arising from the same conduct are alleged cumulatively or in
the alternative. What is to be punished by penalty is proven criminal conduct and that
will not depend upon technicalities of pleading.
Prosecutor v. Tadic, Decision on Defence Motion on Form of the Indictment at p. 10 (No.
IT-94-1-T, T.Ch. II, 14 Nov. 1995). The Trial Chamber has previously applied the same
reasoning in denying a challenge to this Indictment against the co-accused Zejnil Delalic.
Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Decision on
Motion by the Accused Zejnil Delalic based on Defects in the Form of the Indictment at p.
14 (No. IT-96-21-T, T.Ch. II, 2 Oct.1996) ("Delalic Indictment Decision")
8. Thirdly, the Defence argues that Counts 9 and 10 of the Indictment should be
disregarded. The Defence contends that it has not been established for certain whether the
alleged victim ever existed or not. The Prosecution asserts that the evidence currently in
its possession and provided to the Defence supports exactly what was set out in the
Indictment and that disputed matters of fact should be decided at trial, after a full
opportunity for the presentation of evidence.
9. The Trial Chamber considers the existence or not of the person named as the victim
in Counts 9 and 10 is a matter of fact that will have to be considered at the trial. A
motion on the form of the indictment is not an appropriate way of challenging the
evidence: "Whether or not the allegations listed in the Indictment are true
ultimately will be decided at trial." Delalic Indictment Decision at p. 7.
10. Finally, the Defence asserts that due to the "time continuity" for the
several criminal acts of the same kind, described in the various charges, all those acts
should be considered as representing one extended criminal act, and should be treated as
such. The Prosecution on the contrary considers every alleged offence to be a discrete
event, with a separate victim, and a result of a separate exercise of the will of the
accused Esad Landzo over an extensive time period.
11. The Trial Chamber is of the opinion that the possible existence of a relation between the different crimes is a matter that can be addressed at the time of sentencing. Such arguments are not appropriate in a motion on the form of the indictment and cannot be evaluated here. The separation of the acts into different charges clearly does not hinder the Defence in any way in the preparation of its defence.
For the foregoing reasons, THE TRIAL CHAMBER, PURSUANT to Rule 72, HEREBY DENIES in all
respects the Motion by the Accused, Esad Landzo on Defects in the Form of the Indictment.
Gabrielle Kirk McDonald
[Seal of the Tribunal]