Case No.: IT-04-74-AR72.1

THE APPEALS CHAMBER OF THE INTERNATIONAL TRIBUNAL

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Mumba
Judge Andrésia Vaz

Registrar:
Mr. Hans Holthuis

Decision of:
16 November 2005

THE PROSECUTOR

v.

Jadranko PRLIC
Bruno STOJIC
Slobodan PRALJAK
Milivoj PETKOVIC
Valentin CORIC
Berislav PUSIC

_______________________________________________________________________________

DECISION ON PETKOVIC’S INTERLOCUTORY APPEAL AGAINST THE TRIAL CHAMBER’S DECISION ON JURISDICTION

_______________________________________________________________________________

Office of the Prosecutor

Mr. Kenneth Scott
Mr. Darryl Mundis

Counsel for the Accused

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Jadranko Prlic
Mr. Tomislav Kuzmanovic for Bruno Stojic
Ms. Vesna Alaburic for Milivoj Petkovic
Mr. Tomislav Jonjic for Valentin Coric
Mr. Fahrudin Ibrišimovic for Berislav Pusic

The Accused

Slobodan Praljak

1. Milivoj Petkovic (“Appellant”) has filed an interlocutory appeal1 against the Trial Chamber’s “Decision to Dismiss the Preliminary Objections Against the Tribunal’s Jurisdiction” of 27 September 2005 (“Impugned Decision”)2 as of right pursuant to Rule 72(B)(i) of the Rules of Procedure and Evidence (“Rules ”). In his Appeal, the Appellant alleges that the Trial Chamber erred in law by failing to properly address, examine and assess “the complaints and arguments contained ” in his motion and reply3 and “did not render a duly reasoned decision which could be reasonably challenged by means of an appeal”4. He claims that these failures of the Trial Chamber are incompatible “with the general requirements of the rule of law, as well as with the specific requirements of Articles 6, 20(1) and 21 (2)(4) of the ICTY Statute and Rules 72(A)(i), 72(B)(i)”.5

2. The Appellant argues that the Trial Chamber erred by disposing of his motion challenging jurisdiction in combination with the motions of two of his co-accused also challenging jurisdiction.6 The Appellant argues that by so doing, the Trial Chamber failed to take account of and address his arguments, which were different from the arguments made by his co-accused.7 He states that the Trial Chamber’s identification of the issues raised by the Defence motions had no likeness to the arguments that he had made.8 He claims that he

did not contest, in terms of the Tribunal’s jurisdiction, the JCE or common purpose form of liability as such, but the expansion of this particular form of liability beyond any reasonable jurisdictional limits (already established in international customary law and in the Tribunal’s jurisprudence), as defined and applied in this Indictment

and that:

[t] he principal jurisdictional questions raised by [the] Petkovic Defence were therefore:

a) whether the crimes charged and the forms of liability alleged, although (as such, ergo nominally) falling within the Tribunal’s jurisdiction, nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction;

b) whether the Trial Chamber posses[ses] the authority to limit the prosecutorial discretion in this respect.9

3. The Appellant argues that the Trial Chamber failed to address these arguments and did not give reasons for dismissing them. He states that the only reference made to the “essence” of his arguments is in the Trial Chamber’s holding that:

“The Chamber recalls that although the circle of persons encompassed by the JCE as alleged in the Indictment appears to be open-ended, it is still only the Accused who is on trial here, not the entire criminal enterprise, and each of the Accused are sufficiently identified as co-perpetrators of the crimes alleged in the Indictment. There is no basis for assuming that the Tribunal is acting outside its jurisdiction (ultra vires) on this point. In relation to the question of the unlimited number of persons covered by the JCE, this is rather a matter relating to the form of the Indictment, which the Trial Chamber already addressed in its decision of 22 July 2005 with regard to the preliminary motions by the six Accused on the form of the Indictment.”10

The Appellant says that even if his arguments were limited to the plurality of persons as discussed by the Trial Chamber in the above quote, which in fact they were not, the Trial Chamber dismissed his arguments in a perfunctory fashion.11

4. The Appellant argues that the indictment, as the accusatory instrument, must plead material aspects of the Prosecution’s case with sufficient particularity, and that the crimes charged and forms of liability alleged must clearly fall within the jurisdiction of the Statute and case law of the Tribunal. He submits that any defect in the indictment which goes to jurisdiction and/or the form of the indictment can negatively impact upon his ability to prepare his defence and, as a consequence, render his trial unfair. He claims that any decision concerning a defence motion on jurisdiction or the form of the indictment should thus not be treated as a formality but must instead be considered in light of the fundamental rights of the accused, as guaranteed by Articles 6, 20(1) and 21 of the Statute and 82(A) of the Rules.12

5. The Appellant further submits that the failure of the Trial Chamber to issue a reasoned decision frustrates his ability to make effective use of his appeal as of right pursuant to Rule 72. He submits that the Impugned Decision impinges upon his fundamental right to receive a reasoned decision and is “[in]compatible with the requirements of the rule of law in general, and with the ICTY Statute and Rules in particular” and that “[s]uch practice must not be encouraged nor endorsed by the honorable judges of this Tribunal”.13 He requests the Appeals Chamber to vacate the Impugned Decision and to remit the matter back to the Trial Chamber for further consideration. Alternatively, if the Appeals Chamber determines to issue a decision de novo on the substance of his motion and reply, then he requests five working days to submit additional arguments.14

6. In response, the Prosecution says that for the Appeals Chamber to intervene in a Trial Chamber’s exercise of discretion in disposing of a motion challenging jurisdiction, the Appellant must demonstrate that the Trial Chamber “misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of such discretion, or that it gave weight to extraneous or irrelevant considerations, or failed to give weight or sufficient weight to relevant considerations, or that it made an error as to the facts upon which it exercised its discretion.”15 It argues that the Appellant has failed to make any such showings.16

7. The Prosecution further submits that the Trial Chamber has made sufficient findings in relation to each argument presented to it.17 It claims that the Appellant’s “faulty reading” of the Impugned Decision results from his failure to read the Impugned Decision as whole and in combination with the “Decision on Defence Preliminary Motions Alleging Defect in the Form of the Indictment” of 22 July 2005 (“Decision on Defence Motions on the Form of the Indictment ”).18 The Prosecution says that the Trial Chamber specifically stated that the Impugned Decision dealt with only those arguments “relevant to the Tribunal’s jurisdiction”,19 and that those arguments going to “the vagueness of the indictment’s description of the co-perpetrators…which are matters pertaining to evidence and/or the form of the indictment” are dealt with in the Trial Chamber’s Decision on Defence Motions on the Form of the Indictment.20

8. The Prosecution also refutes the claim of the Appellant that the Trial Chamber’s identification of the issues raised by the Defence motions had no resemblance to the arguments that he had made. It cites paragraph 44 of the Appellant’s Preliminary Motion on Jurisdiction,21 which states that:

“The Defence is of the opinion that, although the indictment nominally charges the accused with JCE as a mode of commission of certain crimes, in fact it charges them with the crime of membership in a criminal organisation. Since the Tribunal has no jurisdiction ratione materiae for the crime of membership in a criminal organisation, the Tribunal has no jurisdiction to try the Accused for the crimes as described in the indictment to be committed pursuant to the common purpose doctrine.”22

The Prosecution says that this argument of the Appellant was addressed by the Trial Chamber in paragraph 16 of the Impugned Decision.23

9. The Prosecution further claims that in paragraph 8 (b) of the Impugned Decision, the Trial Chamber expressly considered the contention of the Appellant in paragraphs 29 to 40 of its Preliminary Motion on Jurisdiction that “the difficulty in accepting the concept of JCE as a form of criminal liability as applied in the present Indictment lies in the fact that the concept lost any resemblance with the recognized form of liability known as ‘the common purpose doctrine’ because it has extended much too far ratione personae” and on that basis, joint criminal enterprise applied in the Indictment against the Appellant “is a novel concept without any basis in the Statute”.24 It submits that in paragraph 17 of the Impugned Decision, the Trial Chamber “reasonably addressed the argument concerning the extension of the form of liability, as to or within the limits of its jurisdictional aspect”.25 It claims that read in conjunction with paragraph 32 of the Decision on Defence Motions on the Form of the Indictment26 the paragraphs provide a reasoned decision on the issues raised by the Appellant.27

10. The Prosecution also claims that the Trial Chamber did reasonably deal with the jurisdictional aspects of the Appellant’s argument “whether the crimes charged and the forms of liability alleged, although falling within the Tribunal’s jurisdiction, nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction”.28 It says that as it explained in its response to the Appellant’s motion before the Trial Chamber, the Appellant misinterpreted the concept of joint criminal enterprise applied in the indictment.29 The Prosecution claims further that the Trial Chamber also considered this argument of the Appellant in a decision on the form of the indictment rendered on 18 October 2005.30 In conclusion, the Prosecution requests the Appeals Chamber to dismiss the Appellant’s appeal.31

Analysis

11. The Appeals Chamber will reverse a Trial Chamber’s decision only if the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant considerations or irrelevant considerations in an unreasonable manner.32 A Trial Chamber must provide a reasoned opinion that, among other things, indicates its view on all of those relevant factors that a reasonable Trial Chamber would have been expected to take into account before coming to a decision.33

12. In this Appeal, the Appellant has failed to identify an error in the Trial Chamber’s exercise of its discretion in the Impugned Decision. His claim is that the Trial Chamber has failed to render a reasoned decision properly addressing his arguments. The Appeals Chamber is not satisfied that the Appellant has established this ground.

13. In the Impugned Decision, the Trial Chamber explicitly stated that it would only deal with those arguments that went to jurisdiction, while other arguments, which were more properly considered as challenges to the form of the Indictment, were dealt with in its Decision on the Defence Motions of the Form of the Indictment.34 In his Appeal, the Appellant says that he accepts that the crimes charged and the modes of liability alleged in the Indictment do fall within the jurisdiction of the Tribunal but questions whether they “nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction”.35 The Appellant’s complaint therefore is not whether the Tribunal has jurisdiction over the crimes and modes of liability alleged, but whether the Prosecution has pleaded those crimes and modes of liability properly. The Trial Chamber did not err in determining that this argument was addressed in its Decision on Defence Motions on the Form of the Indictment. Accordingly, the Trial Chamber was not required to address this argument in the Impugned Decision.

14. The Appellant identifies no other argument which he claims the Trial Chamber failed to address in the Impugned Decision. Accordingly, the Appellant has failed to establish his contention that the Trial Chamber failed to properly consider and give a reasoned decision on his arguments challenging the jurisdiction of the Tribunal.

15. For the foregoing reasons, the Appellant’s Appeal is DISMISSED.

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

Done this 16 th day of November 2005,
At The Hague,
The Netherlands.

________________________
Judge Theodor Meron
Presiding

[Seal of the Tribunal]


1 - The Appeal of the Defence for the Accused Petkovic Against the Trial Chamber’s Jurisdictional Decision Concerning JCE, of 27 September 2005, 12 October 2005 (“Appeal”).
2 - 27 September 2005.
3 - Appeal, para.7(i).
4 - Ibid.
5 - Ibid.
6 - Ibid, paras 8,19,20.
7 - Ibid., paras.12-13.
8 - Ibid.
9 - Ibid., para. 14.
10 - Ibid., para. 16, citing the Impugned Decision, para. 17.
11 - Ibid., para. 17.
12 - Ibid., para. 18.
13 - Ibid., para. 23.
14 - Ibid., para. 24.
15 - Prosecution’s Response to the Appeal of the Defence for the Accused Petkovic Against the Trial Chamber’s Jurisdictional Decision Concerning JCE, 25 October 2005 (“Response”), para. 7.
16 - Ibid.
17 - Ibid., para. 8.
18 - Ibid., para 9.
19 - Ibid., para. 10.
20 - Ibid., para. 11 citing to the Impugned Decision, para.8.
21 - The Accused Milivoj Petkovic’s Preliminary Motion Challenging Jurisdiction in Relation to Common Purpose Doctrine as Implemented in the Indictment, 15 December 2004 (“Preliminary Motion on Jurisdiction”).
22 - Response, para.14
23 - Ibid., para. 15.
24 - Ibid., para.16.
25 - Ibid., para. 17
26 - The Decision on Defence Motions on the Form of the Indictment at para. 32 (internal citations omitted) referred to by the Prosecution states that: “The identity of the alleged members of the JCE. The Defence argues that the identity of the alleged members of the JCE (at the exception of deceased members who are not in a position to defend themselves or explain facts essential for their decisions or conduct in the time relevant to the indictment) for each offence charged is not specified. The Prosecution responds that the Indictment sufficiently pleads the members and participants in the JCE, to the extent required by the jurisprudence of the Tribunal, including by identifying other alleged participants by category or group which is allowed. The Prosecution further submits that the alleged roles of these four [deceased] top-level persons, however, was important to stating the nature and scope of the conduct charged in the Indictment, designed and co-ordinated at a high-level. The Prlic Defence replies that it accepts the Prosecution’s explanation that taking part in the government structure of the Croatian Community of the Herceg-Bosna is not membership in joint criminal enterprise, that HZ HB is not criminal but argues that the classification of the governmental structure relevant for indicting has to be pleaded. The Pušic Defence adds that the Prosecution should submit the details of the known other members of the JCE.” See also para. 34 where the Trial Chambers dismisses this argument after consideration of paragraph 16 of the Indictment stating that “in such a case based upon criminal responsibility where the proximity between the acts of the the accused and the underlying crimes is not great the facts may be stated with less precision and it is sufficient to identify the participants in the JCE by means of the category of group to which they belong”.
27 - Response, para.17.
28 - Ibid., para. 19
29 - Ibid., para. 20.
30 - Ibid., para. 22-24; Decision on Prosecution Application for Leave to Amend the Indictment and on Defence Complaints on Form of Proposed Amended Indictment, 18 October 2005.
31 - Response, para. 25.
32 - Prosecutor v. Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 10. (internal quotation marks omitted) “In order to challenge a discretionary decision, appellants must demonstrate that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of the discretion, or that the Trial Chamber [gave] weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.
33 - Prosecutor v. Milutinovic, Case No. IT-99-37-AR65.3, Decision Refusing Milutinovic Leave to Appeal, 3 July 2003, para. 22.
34 - Impugned Decision, para. 8.
35 - Appeal, para. 14.