"Decision on Preliminary Motions"

10 February 2000
Trial Chamber (Judges May [Presiding], Bennouna and Robinson)

The Issue

The Defence of the accused Dosen and Kolundzija filed two separate preliminary motions against the Amended Indictment (hereinafter, "the Indictment")1 advancing four sorts of arguments: 1) vagueness/lack of particulars of the Indictment; 2) lack of clarity as to the accused’s superior responsibility; 3) supporting material not containing sufficient evidence to support the charges; 4) irrelevance of some sections of the Indictment.

The Decision

With regard to alleged vagueness and lack of particulars of the Indictment, the Trial Chamber stated that the conduct of the accused with respect to certain counts was not clearly laid out. The Prosecution was therefore ordered to file an amended version of the confidential Attachment of the Indictment, specifying the capacity in which each accused is alleged to have participated and the nature of his responsibility. Conversely, the Trial Chamber declared that the evidence by which these material facts will be proved were matters for trial2. Finally, the Trial Chamber also dismissed the objections as to irrelevance, considering that the charge of persecution may require a broad scope of evidence.

The Reasoning

With regard to the objections on grounds of vagueness/lack of particulars, the Trial Chamber held that the Statute and the Rules require no more than a concise statement of the facts of the case and of the crimes with which the suspect is being charged3. However, the Trial Chamber made it clear that there exists a threshold below which the Indictment would be regarded as lacking in precision4. Therefore, the Trial Chamber concluded that "where possible", the Prosecution has a duty to provide information as to the place and time of the alleged offences, the identity of both victims and possible co-perpetrators and the means by which the crimes were perpetrated.

An attachment to the Indictment can provide additional information and thus complement it. The attachment may have to be amended when, as in the present instance, more precision is required: "The form of the alleged participation of the accused in a crime is a material averment which should be clearly laid out in an indictment in order to clarify it and make plain the prosecution case"5. In addition, the Trial Chamber indicated that sufficient precision would assist the court "in its management of the trial and in fulfilling its duty to expedite the trial"6. The Trial Chamber therefore ordered that the attachment be amended in respect of the form of the alleged participation of each accused and in respect of their alleged responsibility7.

The Defence’s second contention was that the Prosecutor should have specified whether it relied on Article 7(1) or 7(3) of the Statute in relation to particular charges. The Trial Chamber recalled the finding of another Trial Chamber in Delalic that there might be situations where charging and convicting under both articles were appropriate8. In the present case, the Trial Chamber required the Prosecution to amend the Attachment to clarify where it is relying on Article 7(1), on 7(3) or on both.

The Defence’s third contention was that the court is entitled to evaluate the Indictment in the light of the supporting material. The Trial Chamber disagreed and stated that this issue should await until trial9.

Finally, the Trial Chamber refused to adopt a narrow view of evidence and, more generally, of the factual descriptions contained in the Indictment. The Defence had argued that some of the background sections of the Indictment should be struck on grounds of irrelevance, or on the ground that the accused had nothing to do with the wider political circumstances. The Trial Chamber stated that persecution may require a broad evidentiary scope. Therefore, "the Background and General Allegations sections of the Amended Indictment may assist it in placing the charges against the accused in their context. These sections do not make specific charges against the accused"10.

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1. The "Amended Indictment" is formally composed of two separate documents, one for each accused, but there is a single and joint Indictment against both accused. During the hearing on 24 January 2000, the Prosecutor indicated that she would seek to file a single document in relation to both accused.
2. On this issue, see The Prosecutor v. Krnojelac, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (summarised in this issue of the Judicial Supplement).
3. Para. 8. See Article 18(4) of the Statute and Rule 47(C) of the Rules of Procedure and Evidence. See The Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 and The Prosecutor v. Kunarac et al., Decision on the Form of the Indictment, 4 November 1999 (summarised in Judicial Supplement No. 9). See also The Prosecutor v. Martinovic, Decision on Defendant Vinko Martinovic’s Objection to the Indictment, para. 18: "the defendant’s preparation for trial may begin with the Indictment, but it does not end there. While it is clear that ‘the indictment must contain certain information which permits the accused to prepare his defence’, it need not contain all of the information to which the accused will ultimately be entitled in the Rules. The primary focus at this stage must be on whether the indictment contains a concise, but complete, statement of the facts on which the charges are based."
4. The Prosecutor v. Kvocka, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, paras. 17 and 14. See also The Prosecutor v. Martinovic, Decision on Defendant Vinko Martinovic’s Objection to the Indictment, 15 February 2000, paras. 5-8.
5. Para. 12. See also The Prosecutor v. Tadic, Decision on the Defence Motion on the Form of the Indictment, 14 November 1995, para. 12: "[there should be] some clear identification of particular acts of participation by the accused [in the attack]." See also The Prosecutor v. Djukic, Decision on Preliminary Motions of the Accused, 26 April 1996, para. 18, The Prosecutor v. Furundzija, Order, 19 March 1998, and The Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 13 (summarised in Judicial Supplement No. 2). See also, The Prosecutor v. Kvocka et al., Decision on the Defence Preliminary Motions on the Form of the Indictment, 12 April 1999: "Where the Prosecution is in a position to do so, it should identify the method of the commission of the crime, or the manner in which it was committed."
6. Para. 14.
7. The Prosecution must make it clear whether their responsibility is individual (Article 7(1) of the Statute) or derives by virtue of their hierarchical superiority (Article 7(3) of the Statute) or both. However, superior responsibility need not be elaborated in the Indictment. According to the Trial Chamber, the pre-trial brief will serve to clarify these issues (para. 17 and 19). See also below, the Defence’s second contention.
8. The Prosecutor v. Delalic et al., Judgement, 16 November 1998, para. 1222 (summarised in Judicial Supplement No. 1).
9. See para. 21 and quoted jurisprudence. See particularly, The Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 (summarised in Judicial Supplement No. 2), para. 12 : "[there is] a clear distinction drawn between the material facts upon which the prosecution relies (which must be pleaded) and the evidence by which those material facts will be proved (which must be provided by way of pre-trial discovery)." See also The Prosecutor v. Martinovic, Decision on Defendant Vinko Martinovic’s Objection to the Indictment, paras. 14-19, and the references quoted particularly The Prosecutor v. Kunarac et al., Decision on the Form of the Indictment, 4 November 1999 (summarised in Judicial Supplement No. 9) and The Prosecutor v. Brdjanin, Decision on Motion to Dismiss Indictment, 5 October 1999 (summarised in Judicial Supplement No. 8).
10. Para. 22. Both accused were charged with persecution as a crime against humanity. On the concept of persecution, see The Prosecutor v. Kupreskic et al., Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11).