"Decision on Defence Motions for Judgement of Acquittal"

6 April 2000
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson

Procedural Background

On 17 March 2000, Counsel for the accused Dario Kordic and Mario Cerkez filed a Motion for Judgement of Acquittal in which both contended that the applicable standard for determining whether evidence was insufficient to sustain a conviction under Rule 98 bis (B) of the Rules of Procedure and Evidence1 was that of proof beyond a reasonable doubt. Defence Counsel argued that the Prosecution "must prove guilt as to each offence charged beyond a reasonable doubt". Counsel also contended that "if from credible evidence two reasonable inferences may be drawn, one of guilt and the other of innocence, the latter must be taken"2.

The Defence submitted that the Prosecution had failed to present sufficient or credible evidence to establish the responsibility of the accused under Articles 7(1)3 and 7(3)4 of the Statute. It therefore requested the Trial Chamber to acquit the accused of all charges. Counsel submitted that the Trial Chamber should acquit the accused of the attacks on various localities and associated crimes based on persecution, unlawful attacks on civilians and civilian objects, wilful killing, murder, causing serious injury, inhumane acts and inhuman treatment, imprisonment, inhuman treatment, taking of hostages and use of human shields, destruction and plunder of property and destruction of institutions dedicated to religion or education because of the lack of evidence or insufficiency thereof.

Defence for Mario Cerkez requested the Trial Chamber to acquit the accused of all charges of persecution committed in the Novi Travnik and Busovaca regions and in the remaining localities named in the indictment for the period from April 1992 to 16 April 1993 on the same grounds.

The Prosecution responded on 24 March 2000 and argued that "the Chamber needs only to establish whether as a matter of law there is evidence, were it to be accepted by the Trial Chamber, as to each count charged in the indictment upon which a reasonable Trial Chamber could convict the accused".

The Prosecution submitted that there was sufficient and credible evidence for all of the charges brought against both of the accused and requested that the Trial Chamber dismiss the Motions accordingly.

Trial Chamber III heard the oral arguments of the parties on 30 March 2000.

The Reasoning

• The Judges considered it necessary for the Trial Chamber to clarify the standard applied in determining whether evidence was insufficient to sustain a conviction in respect of a motion for the entry of judgement of acquittal under Rule 98 bis of the Rules of Procedure and Evidence.

Trial Chamber III decided not to characterise the proceedings before it as constituting "no case to answer", lest it be thought that the text must necessarily be applied in the same way as applications for "no case to answer" in common law jurisdictions, although these proceedings bear a close resemblance to them.

The Trial Chamber recalled that several motions for acquittal had already been presented in other cases subsequent to the Prosecution’s closing its case - either under Rule 545 or under Rule 98 bis of the Rules of Procedure and Evidence6.

Trial Chamber III deemed it important to identify the broad purpose of the Rule, that is to determine whether the Prosecution has put forward a case sufficient to warrant the Defence being called upon to answer it. The Judges considered that implicit in Rule 98 bis proceedings was the distinction to be drawn between a determination made at the halfway stage of the trial as to the insufficiency of evidence and a determination made at the end of the case as to the guilt of the accused.

The Trial Chamber examined the case law of the Tribunal which, in its opinion, clearly sets a standard lower than that of proof beyond reasonable doubt - except in one decision rendered in a case where there were exceptional circumstances7.

Trial Chamber III further examined the practice in common law States such as the United Kingdom, Canada, Australia (New South Wales) and the United States of America and in one civil law State, namely Spain. The Judges considered that domestic case law also provided that the applicable test to motions for acquittal at the close of the Prosecution case did not require the high standard of proof beyond reasonable doubt.

The Trial Chamber considered that the regime applicable to domestic proceedings, in which there is a judge as the trier of law and a jury as the trier of fact, was relevant to the Tribunal’s work, notwithstanding the fact that its Judges tried both the law and the fact. Trial Chamber III explained that Judges must separate their functions as triers of law and triers of fact, and, in that regard, leave questions of reliability and credibility to be determined at the end of the case in the same way as those questions would be left for a jury to decide in domestic systems.

The Chamber concluded that the true test to be applied to a motion for acquittal under Rule 98 bis was not whether there was evidence which satisfied the Trial Chamber beyond a reasonable doubt of the guilt of the accused but rather whether there was evidence on which a reasonable Trial Chamber could base a conviction. In the view of the Judges, this conclusion was supported by the distinction implicit in Rule 98 bis which also arises in domestic jurisdictions hearing similar proceedings. That distinction is between a determination as to whether there is a case to answer made at the halfway stage in a trial after the close of the Prosecution case and a determination as to the accused’s guilt or innocence made at the close of the case. "It is not necessary to define what is meant by evidence on which a reasonable Trial Chamber could convict; it is sufficient to say that this standard is not met by any evidence; there must be some evidence which could properly lead to a conviction".

• The indictment stated that the Croatian Community of Herceg-Bosna (the HZ H-B) and later the Croatian Republic of Herceg-Bosna (HR H-B) consisted of 31 municipalities. Dario Kordic’s Defence Counsel therefore argued that allegations of persecution in relation to the remaining 22 municipalities should be dismissed.

The Prosecution contended that there was sufficient evidence of the activities undertaken by the accused in the whole HZ H-B/HR H-B area as part of an overall plan and that it was not necessary to amend the indictment in this respect. From the Prosecution’s perspective, Dario Kordic’s activities were such that his involvement at the highest levels of the HZ H-B/HR H-B government affected all municipalities.

Trial Chamber III found that there was substantial evidence as to the role of the accused in the overall government and control of the HZ H-R/HR H-B.

The Trial Chamber further ruled that although the indictment charged Dario Kordic with persecution "throughout the HZ H-B/HR H-B and the municipality of Zenica" this did not mean that the Prosecution was required to produce evidence as to each and every municipality forming part of the HZ H-B/HR H-B. Trial Chamber III considered that the Prosecution case related to the participation of the accused at the highest levels of government and that the Defence should have prepared its case accordingly. In particular, Counsel for the accused was not expected to adduce evidence concerning municipalities for which no evidence had been presented.

• Dario Kordic’s Defence submitted that the Prosecution had failed to demonstrate that the accused had discriminatory intent and that he should be acquitted of persecution for lack of mens rea.

The Trial Chamber rejected this submission and found that it might be possible to draw inferences as to his state of mind from his conduct and alleged criminal acts" because of Dario Kordic’s "alleged superior rank within the HZ H-B/HR H-B".

Counsel for the accused further requested Trial Chamber III to dismiss any charges against Mario Cerkez relating to the period before 16 April 1993. The Trial Chamber deemed that such a partial dismissal of the charges was inappropriate since the Judges were not required, at this stage, to decide matters such as when exactly the accused assumed his position as commander. Evidence that the alleged crimes occurred within the time-period specified in the indictment, that is "from April 1992 to approximately August 1993"8, was deemed sufficient.

The Decision

Trial Chamber III found that there was insufficient or no evidence at all in respect of plunder at twelve locations and that accordingly Dario Kordic and Mario Cerkez had no case to answer.

Apart from this single exception, the Trial Chamber dismissed the submissions presented by both Kordic’s and Cerkez’s Defence as to the insufficiency of evidence. Trial Chamber III left the extensive arguments filed by all the parties on the evidence and the applicable law for the final judgement.

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1. "The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges".
2. Richard May and Marieke Wierda, "Trends in International Criminal Evidence : Nuremberg, Tokyo, The Hague and Arusha", 37 Columbia Journal of Transat. Law, 1999, p. 725 to 754 (citing decisions in the Flick case from the Nuremberg International Military Tribunal).
3. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present statute, shall be individually responsible for the crime".
4. "The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof".
5. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial".
6. See The Prosecutor v. Blaskic, Case No. IT-95-14-T, Decision of Trial Chamber I on the Defence Motion to Dismiss, 3 September 1998. The Defence sought to rely on Rule 54 of the Rules of Procedure and Evidence but the Trial Chamber considered it under Rule 98 bis on the principle of law Specialia derogant generalibus (the special provision displaces the general one), insofar as Rule 54 is a general rule and Rule 98 bis the specific rule for this type of motion. Trial Chamber I rejected the Motion on the basis that the Prosecutor had neither failed to provide proof of any of the counts of the indictment nor failed to demonstrate a "serious prima facie case in support of its claims".
See also The Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Decision on Motion for Withdrawal of the Indictment against the Accused Vlatko Kupreskic, Trial Chamber II, 18 December 1998, in which, inter alia, the Chamber stated that it did not consider it appropriate to apply Rule 98 bis of the Rules of Procedure and Evidence to order a judgement of acquittal on one or more charges contained in the indictment against Vlatko Kupreskic.
See also The Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, subsequent Decision rendered on 8 January 1999 in which Trial Chamber II rejected the Motion of the Accused Vlatko Kupreskic to the Trial Chamber to order the entry of Judgement of Acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence.
7. The Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgement, Trial Chamber I, 14 December 1999 (See Judicial Supplement No. 10).
8. Indictment, paras. 21 and 22.