Case No. IT-04-74-PT

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr. Hans Holthuis

Decision of:
19 September 2005

___________________________________________________

The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Michael Karnavas for the accused Mr. Jadranko Prlic
Mr. Berislav Zivkovic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic for the accused Mr. Slobodan Praljak
Ms. Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr. Tomislav Jonjic for the accused Mr. Valentin Coric
Mr. Fahrundin Ibrisimovic for the accused Mr. Berislav Pusic

TRIAL CHAMBER I (“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”);

BEING SEISED of “the Accused Milivoj Petkovic’s Motion for Certification to Appeal against the Trial Chamber’s Decision on Defence Preliminary Motions Alleging Defect in the Form of the Indictment of 22 July 2005” (“Application”) filed on 1 August 2005 by the defence for the accused Milivoj Petkovic (“Defence” and “Accused ”, respectively) in accordance to Rule 72(B)(ii) of the Rules of Procedure and Evidence (“Rules”);

NOTING the “Prosecutor’s Response to ‘the Accused Milivoj Petkovic’s Motion for Certification to Appeal against the Trial Chamber’s Decision on Defence Preliminary Motions Alleging Defect in the Form of the Indictment of 22 July 2005 filed on 1 August 2005’” (“Response”)filed on 5 August 2005 by the Office of the Prosecutor (“Prosecution”);

NOTING that Rule 72 (B)(ii) of the Rules requires two cumulative criteria to be satisfied for the Chamber to exercise its competence to certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial, and (2) that an immediate resolution of the issue by the Appeals Chamber may materially advance the proceedings;

RECALLING the Chamber’s “Decision on Defence Preliminary Motions Alleging Defect in the Form of the Indictment” filed on 22 July 2005 (“Impugned Decision”);

NOTING that the Defence submits in support of its Application that:

(1) the Impugned Decision “failed to properly address and examine all relevant complaints and arguments of the Defence concerning numerous defects in the form of the Indictment ”¹ such as (a) the Defence’s arguments raised in paragraphs 42, 43, 44(ii)(iii), 45, 46(ii)(iii), 47(ii)(iii)(vi), 48(ii )(iii)(iv), 49(ii)(iii)(iv), 50(ii)(iii)(iv), 51, 52(ii), 53, 54(ii), 55 of its motion ² (b) certain arguments concerning the issue of joint criminal enterprise in the Indictment,³ (c) the arguments concerning the specificity of the acts and conduct of each accused in relation to each alleged crimes, ⁴ (d) the arguments concerning the charge of aiding and abetting, (e) the arguments concerning cumulative charging,⁶ and (f) certain arguments concerning command responsibility,⁷

(2) the Chamber erred in law regarding the level of specificity required when pleading different crimes and different forms of liability,⁸ and

(3) the Defence is still unable to determine with sufficient precision a number of issues such as (a) which alleged crimes were planned by the JCE and which were the foreseeable consequences of the executions of crimes, (b) what category of JCE is pleaded in the Indictment, (c) who were the members of the JCE, (d) the relationship between the perpetrators and the accused, (e) the participation of the accused in the JCE;⁹

NOTING that the Prosecution responds that:

(1) it “has examined the assertions in the Petkovic Certification Motion and finds in each instance that the Chamber, in varying ways and degrees, in fact made sufficient findings concerning or related to each argument or objection” and joins a table illustrating how the Chamber reasonably responded to the various arguments of the Defence in its motion alleging defects in the form of the Indictment,¹⁰ and

(2) the Defence failed to show “that the Chamber misdirected itself either as to the principle applied or as to the law which is relevant to the exercise of such discretion [on how to best proceed and move the Indictment toward trial] 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 has exercised its discretion”;¹¹

CONSIDERING that the Defence generally alleges that the Chamber erred when not addressing all arguments raised in its motion alleging defect in the form of the indictment and that an immediate resolution of this issue which would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial may materially advance the proceedings;¹²

CONSIDERING that the Defence specifically complains that the Chamber erred in law regarding the level of specificity required when pleading different crimes and different forms of liability; that however such a complaint is not substantiated ;

CONSIDERING that the Defence further complains that although the Chamber has addressed its complaints regarding (a) which alleged crimes were planned by the JCE and which were the foreseeable consequences of the executions of crimes, (b) what category of JCE is pleaded in the Indictment, (c) who were the members of the JCE, (d) the relationship between the perpetrators and the accused, and ( e) the participation of the accused in the JCE, the Defence is still unable to determine with sufficient precision those issues; that however this complaint is not substantiated ; that if the Defence does not show how the Chamber erred as to the principle applied or the facts taken into consideration when examining those issues in the Impugned Decision, the Chamber cannot take the complaints into consideration;

CONSIDERING that as correctly observed by the Prosecution the Chamber has explained its methodology in the Impugned Decision as follows:

The Chamber has carefully examined all of the Defence complaints and arguments concerning defects in the form of the Indictment which - the Chamber insists - is not intended to be an exhaustive summary of the material brought in support of the Indictment and is to be read as a whole and not as a series of paragraphs existing in isolation . Only the essence of those complaints or arguments is recalled below and addressed in relation to each part of the Indictment for clarity purposes in view of the particular length of the Indictment.¹³

CONSIDERING that the it seems that the Defence misinterprets the Impugned Decision by failing to read it as a whole, and therefore ignores that the Chamber has properly addressed and adequately examined the “essence of those complaints or arguments” enumerated in the motion alleging defects in the form of the indictment ;¹⁴

CONSIDERING that the Defence, after having listed the defects it had identified in the Impugned Decision, addresses the criteria for certification in an unspecific way, by mainly submitting, in very general terms, that alleged defects would significantly affect a fair trial and the expeditious conduct of the proceedings or the outcome of the trial,¹⁵ and by arguing, again in very general terms, that the immediate resolution of these issues may materially advance the procedure;¹⁶

CONSIDERING that such an unspecific and general approach would, if accepted , justify a certificate to be issued whenever an accused seeks to appeal a decision in which—in his opinion—his claims in respect of defects in the form of the indictment have not been dealt with to his satisfaction;

CONSIDERING that such an approach would be contrary to the purpose of a certifying procedure under Rule 72(B)(ii), where an appeal against a decision on a preliminary motion on the form of the indictment does not lie as of right;

FINDING that the Defence has failed to sufficiently substantiate and establish that the two criteria for granting certification are met;

PURSUANT to Rule 72 (B)(ii) of the Rules;

HEREBY DENIES the Application.

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

Dated this nineteenth Day of September 2005,
At The Hague
The Netherlands

___________________________
Judge Liu Daqun
Presiding Judge, Trial Chamber I

[Seal of the Tribunal]