IN THE TRIAL CHAMBER

Before: Judge Adolphus G. Karibi-Whyte, Presiding

Judge Elizabeth Odio Benito

Judge Saad Saood Jan

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of: 18 March 1998

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

___________________________________

ORDER ON THE MOTIONS TO DISMISS
THE INDICTMENT AT THE CLOSE OF
THE PROSECUTOR’S CASE

___________________________________

The Office of the Prosecutor:

Mr. Grant Niemann

Ms. Teresa McHenry

Mr. Giuliano Turone

Counsel for the Accused:

Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene O’Sullivan, for Zejnil Delalic

Mr. Zeljko Olujic, Mr. Michael Greaves, for Zdravko Mucic

Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic

Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo

 

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");

NOTING that on the conclusion of the case for the Prosecution on 16 February 1998, Counsel for each of the accused persons, as part of their opening speeches under Rule 84 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), indicated that they would move a motion to dismiss the Indictment against the accused;

FURTHER NOTING that while no provision is made in the Statute of the International Tribunal or the Rules for the submission of a "Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case", this does not affect the inherent power of a Trial Chamber, at the request of a Party or proprio motu, to dismiss counts of the Indictment;

BEING SEISED of a motion filed jointly on 20 February 1998 by the accused Zejnil Delalic, Hazim Delic and Esad Landzo entitled "Defendants’ Motion for Judgment of Acquittal or in the alternative Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case" (Official Record at Registry Page ("RP") D5503-D5724) ("Joint Motion") and a motion filed on 20 February 1998 by the accused Zdravko Mucic entitled "Defendant’s Motion for Judgment of Acquittal or in the alternative Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case or in the alternative Motion for the Provisional Release from the Custody of the ICTY Tribunal Effective Immediately" (RP D5726-D5757) ("Mucic Motion") (together "the Motions");

CONSIDERING the "Prosecution’s Response to Defendants’ Motion for Judgment of Acquittal or in the alternative Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case" filed on 6 March 1998 (RP D5759-D5861);

FURTHER CONSIDERING the "Reply of Defendants Delalic, Delic and Landzo to Prosecution’s Response to Defendants’ Motion for Judgment of Acquittal or in the alternative Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case" filed on 10 March 1998 (RP D5866-D5922);

HAVING HEARD the oral submissions of the Defence for all four accused ("Defence") and the Office of the Prosecutor ("Prosecution") on 11 and 12 March 1998;

NOTING that the Trial Chamber, before hearing the oral arguments on the Motions, observed that the prayers for judgment of acquittal or dismissal of the Indictment at the close of the case of the Prosecution were in the alternative;

FURTHER NOTING that the two alternative requests differ in their content in that:

(1) the submission of a motion for judgment of acquittal calls for a consideration, even at this stage in the proceedings, of the law and evidence adduced by the Prosecution. The accused persons, confident of the weakness of the Prosecution case, do not seek to offer any further evidence and are, therefore, closing their case. The Trial Chamber is, accordingly, entitled to consider the innocence or guilt of the accused in the light of the law and evidence presented to it by the Prosecution;

(2) the alternative request for dismissal of the indictment is for the charges against the accused to be dismissed on the basis that the Prosecution has not, on the law and the evidence presented before the Trial Chamber, made out a case in relation to the charges at issue for the accused persons to defend themselves against;

CONSIDERING that, whereas the implication of the two approaches is that a successful motion will in each case result in the termination of the case against the accused persons, the crucial and critical distinction is in respect of a failure of the motion:

(1) in a motion for judgment of acquittal the Trial Chamber will determine the guilt or innocence of the accused persons, who have relied for their defence on the evidence led by the Prosecution;

(2) conversely, an unsuccessful motion for request of dismissal of the indictment will afford the accused persons the opportunity to lead evidence and defend the case made out by the Prosecution;

NOTING that, in the course of the hearing on 11 March 1998, the Defence were invited to make a choice since its written submissions ignored the legal distinction between these two alternatives and that the Defence then indicated that, despite the wording of the titles of the Motions, the accused did not seek to close their cases at this time and that the Motions should be understood as a request for dismissal of all the counts of the Indictment;

CONCLUDING that in the determination of motions of this nature, the Trial Chamber must satisfy itself that as a matter of law, there is evidence relating to each element of the offences in question which, were it to be accepted, is such that a reasonable tribunal might convict;

FURTHER CONCLUDING that the Trial Chamber is satisfied that, as a matter of law, there is evidence before it relating to each of the offences in question for the accused persons to be invited to make their defence;

FURTHER CONSIDERING that the matter of provisional release is not appropriately raised in the present context;

FOR THE AFOREMENTIONED REASONS,

HEREBY

(1) DENIES the Joint Motion;

(2) DENIES the Mucic Motion, insofar as it constitutes a request for dismissal of the Indictment; and

(3) DISMISSES the Mucic Motion, insofar as it constitutes a request for provisional release.

 

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

_____________________________

Adolphus G. Karibi-Whyte

Presiding Judge

Dated this eighteenth day of March 1998

At The Hague,

The Netherlands.

[Seal of the Tribunal]