Case No.: IT-03-69-PT


Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Mr. Hans Holthuis

Decision of:
14 November 2003







The Office of the Prosecutor

Mr. Dermot Groome
Ms. Camille Bibles

Counsel for the Accused

Mr. Gerardus Godefridus Johannes Knoops, for Jovica Stanisic
Mr. Zoran Jovanovic, for Franko Simatovic

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”),

BEING SEISED OF the “Defence Preliminary Motion On The Form Of The Indictment ” filed on 3 September 2003 (“Stanisic Motion”) by the Defence of Jovica Stanisic (“Stanisic”) alleging numerous defects in the form of the indictment against Stanisic including: (i) use of ambiguous words; (ii) lack of specification of the course of conduct of Stanisic in the alleged crimes; (iii) lack of specification of the identities of victims and participants of the alleged crimes; (iv) lack of specification of the time frame when the alleged crimes took place; (v) lack of specification of the location of the alleged crimes; (vi) lack of specification of the causal relationship between Stanisic and the perpetrators of the alleged crimes; (vii) alleged responsibility of Stanisic for other persons indicted before the International Tribunal; and (viii) lack of specification of the names of the alleged members of the joint criminal enterprise,

ALSO BEING SEISED OF a “Defence Preliminary Motion” filed on 3 September 2003 (“Simatovic Motion”), by the Defence of Franko Simatovic (“Simatovic”), alleging numerous defects in the form of the indictment against Simatovic including the failure of the indictment to state: (i) whether Simatovic is being held de jure or de facto responsible; (ii) the particular acts or courses of conduct of Simatovic that constitute crimes punishable under Article 7, paragraph 1, of the Statute of the International Tribunal (“Statute”); (iii) the facts that indicate the mens rea of Simatovic; and (iv) the specific time interval to which the charges relate ,

NOTING the “Prosecution’s Response to Defence Preliminary Motions On The Form of The Indictment” filed on 15 September 2003 (“Response”) by the Office of the Prosecutor (“Prosecution”), alleging that the indictment is sufficiently pleaded for both accused to prepare their defence and consequently seeking denial of both the Stanisic Motion and the Simatovic Motion,

NOTING the “Defence Reply To Prosecution’s Response To The Defence Preliminary Motion On the Form Of The Indictment” filed on 22 September 2003 (“Reply”) by the Defence of Simatovic subsequent to an order granting leave to file a reply,1 requesting the Prosecution’s arguments in the Response to be rejected,

NOTING that the indictment against both Stanisic and Simatovic (“Indictment ”)2 concerns events that occurred between 1 August 1991 and 31 December 1995 in Bosnia and Herzegovina and Republic of Croatia (“Croatia”)3 and alleges that during the relevant times, Stanisic was the de facto head of the State Security Service (“DB”) of the Ministry of Internal Affairs of the Republic of Serbia (“MUP”) until his formal appointment as the Head or Chief of the DB on 31 December 1991,4 and Simatovic worked counter -intelligence in the DB and then in the newly formed Intelligence Administration (or Second Administration) of the DB and as such was the commander of the Special Operations Unit of the DB,5

NOTING that the Indictment charges both Stanisic and Simatovic with individual criminal responsibility under Article 7, paragraph 1, of the Statute, for the crimes of persecutions, murder, deportation and inhumane acts (forcible transfers) described in the Indictment, which they planned, ordered, committed or in whose planning, preparation or execution they otherwise aided and abetted,6

NOTING that the Indictment states that neither Stanisic nor Simatovic are alleged to have physically committed the crimes charged personally and that the use of the word “committed” includes the participation of both Stanisic and Simatovic in a joint criminal enterprise,7

NOTING that the objective of the joint criminal enterprise is stated to have been the forcible and permanent removal of the majority of non-Serbs from large areas of Croatia and Bosnia and Herzegovina through the commission of the crimes described in the Indictment and that both Stanisic and Simatovic are alleged to have participated in the joint criminal enterprise as co-perpetrators or as aiders or abettors, and that both Stanisic and Simatovic had the necessary mens rea for the commission of the crimes,8

NOTING that the participation of both Stansic and Simatovic in the joint criminal enterprise is described as the participation in the formation, financing , supply and support of secret units established by or with the assistance of the DB for the purpose of undertaking special military actions in Croatia and Bosnia and Herzegovina (“Special Units of the Republic of Serbia DB”)9; direction of members and agents of the DB who participated in the perpetration of the crimes in the Indictment; and the provision of arms, funds, training, logistical support and other substantial assistance or support to the Special Units of the Republic of Serbia DB that were involved in the alleged commission of crimes in Croatia and Bosnia and Herzegovina between 1 August 1991 and 31 December 1995,10

NOTING that the Indictment states that the other individual participants in the joint enterprise included Slobodan Milosevic, Veljko Kadijevic, Blagoje Adzic, Ratko Mladic, Ramilo Bogdanovic, Radovan Stojicic, Mihalj Kertes, Milan Martic, Radovan Karadzic, Biljana Plavsic, Zeljko Raznatovic and Vojislav Seselj,11

CONSIDERING that Article 18, paragraph 4, of the Statute and Rule 47 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) require the Prosecutor to prepare an indictment containing the name and particulars of the accused and a concise statement of facts and the crime or crimes with which the accused is charged,

CONSIDERING that an indictment is not defective when, taken as a whole, it makes clear to an accused (1) the nature of the responsibility alleged against him; and (2) the material facts, but not the evidence, by which his particular responsibility will be established,12

CONSIDERING that the materiality of the facts pleaded depends on the proximity of an accused to the events for which he is alleged to be criminally responsible13 and that neither accused, who held high level positions in the DB, is being held responsible for physically committing the crimes charged,

CONSIDERING that, with respect to allegations of participation in a joint criminal enterprise, the material facts that need to be pleaded are: (i) the purpose and period of the enterprise; (ii) the identity of the participants; and (iii) the nature of the participation of the accused,14

CONSIDERING that the Prosecution need not provide in the indictment any evidence or a summary of evidence it intends to rely upon to prove its case at trial,15

CONSIDERING that an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential part of the Prosecution case16 but that the entire background context need not be pleaded in the indictment,17

CONSIDERING that the Prosecution is not required to provide exhaustive lists of all the names of towns and villages attacked or details and exact number of victims and that, until sufficient notice is given by the Prosecution, the accused is entitled to proceed upon the basis that what is provided in a list is exhaustive in nature,18

CONSIDERING that that the phrase “including, but not limited to” in paragraphs 7, 19, 23 and 59 causes an ambiguity in that the Prosecution is holding both accused responsible for crimes allegedly committed in municipalities of Bosnia and Herzegovina not stated in the Indictment,

CONSIDERING that responsibility of the accused for other persons accused before the International Tribunal are not material facts which need to be pleaded in the Indictment against the accused,

PURSUANT TO Rule 72 of the Rules

HEREBY GRANTS the Motions in part and ORDERS the Prosecution as follows :

(1) to clarify the ambiguity in the use of the words “including, but not limited” contained in paragraphs 7, 19, 23 and 59;

(2) to file an amended Indictment within 30 days of this Decision; and

DISMISSES the Stanisic Motion and the Simatovic Motion in all other respects.


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

Richard May

Dated this fourteenth day of November 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - “Order Granting Defence Request For Leave to File Reply,” Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, 17 Sept. 2003,
2 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-I, 1 May 2003.
3 - Indictment, paras 11 and 13.
4 - Ibid., para. 1.
5 - Ibid., para. 2.
6 - Ibid., para. 8.
7 - Ibid.
8 - Indictment, paras 9-10. Alternatively, the crimes charged in the Indictment are said to have been natural and foreseeable consequences of the execution of the object of the joint criminal enterprise.
9 - The Special Units of the Republic of Serbia DB include, but are not limited to, Red Berets, Arkan’s Tigers, Martic’s Police, Militia of the Serbian Autonomous District of Slavonia, Baranja and Western Srem, JSO and JATD. See Indictment, para. 3.
10 - Indictment, paras 3 and 13.
11 - Ibid., para. 12.
12 - “Decision on the Defence Preliminary Motion on the Form of the Indictment,” Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, 24 Feb. 1999, para. 7.
13 - “Decision on the Defence Preliminary Motion Against the Amended Indictment,” Prosecutor v. Milan Martic, Case No. IT-95-11-PT, 2 June 2003, para. 5, citing “Decision on Application by Defence for Leave to Appeal,” Prosecutor v. Galic, Case No. IT-98-29-AR72, 30 Nov. 2002.
14 - “Decision on Prosecution’s Motion for Leave To Amend the Consolidated Indictment,” Prosecutor v. Momcilo Krajisnik & Biljana Plavsic, Case No. IT-00-39&40-PT, 4 Mar. 2002, para. 13 (“Krajisnik Decision”).
15 - Krajisnik Decision, para. 9.
16 - Appeal Judgement, Prosecutor v. Kupreskic et al, IT-95-16-A, 23 Oct. 2001, para. 114.
17 - “Decision on Preliminary Motion Regarding Defects in the Form of the Indictment,” Prosecutor v. Naser Oric, Case No. IT-03-68-PT, 3 July 2003, p. 4.
18 - Decision of Form of Indictment, Prosecutor v. Hadzihasanovic et al, Case No. IT-01-47-PT, 7 Dec. 2001, para. 43.