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The Prosecutor v. Milorad Krnojelac - Case No. IT-97-25-PT |
"Decision on the Defence Preliminary Motion on the Form of the Indictment"
24 February 1999
Trial
Chamber II (Judges Hunt [Presiding], Cassese and Mumba)
| Decision (1) allowing cumulative charging, (2) specifying the required particularity of the indictment and (3) upholding the general practice of the Tribunal not to hear oral argument on interlocutory motions. |
Introduction
In his Motion of 8 January 1999, the accused requested that the Trial Chamber order the Prosecution to amend the indictment by specifying a number of aspects of the allegations.
The Decision
Granting the Motion of the accused in part, the Trial Chamber ruled on a number of legal issues which are summarised below. Unless otherwise indicated, the Trial Chamber found support for its findings in the jurisprudence of the Tribunal.
Pleading different charges based on the same facts
The Trial Chamber ruled that the Prosecution must be allowed to frame charges within one indictment on the basis that the Tribunal of fact may not accept a particular element of one charge which does not have to be established for the other charges and, in any event, in order to reflect the totality of the accused’s criminal conduct so that the punishment imposed will do the same. According to the Trial Chamber, the fact that such a form of pleading is said to be contrary to the laws of the former Yugoslavia does not invalidate the indictment since the Statute of the International Tribunal and its Rules of Procedure and Evidence are not to be read down so as to comply with those laws.
The Trial Chamber further found that Articles 2 (grave breaches of the Geneva Conventions), 3 (violations of the laws or customs of war) and 5 (crimes against humanity) of the Tribunal’s Statute are all designed to protect different values and that each requires proof of a particular element not required by the others. According to the Trial Chamber, it does not follow that the same conduct cannot offend more than one of those values and thus fall within more than one of those Articles.
In support of this finding, the Trial Chamber not only recalled the jurisprudence of this Tribunal but also the Judgement of 2 September 1998 in the Akayesu case (ICTR-96-4-T) by Trial Chamber I of the International Criminal Tribunal for Rwanda (hereinafter "the ICTR").
Particulars in pleading the indictment
In the view of the Trial Chamber, pursuant to Article 18 of the Statute and Sub-rule 47(B) of the Rules of Procedure and Evidence, the extent of the Prosecution’s obligation to give particulars in an indictment is to ensure that the accused has "a concise statement of the facts" upon which reliance is placed to establish the offences charged, but only to the extent that such statement enables the accused to be informed of the "nature and cause of the charge against him" as required by Article 21(4)(a), and in "adequate time [...] for the preparation of his defence", required by Article 21(4)(b). Accordingly, an indictment must contain information as to the identity of the victim, the place and the approximate date of the alleged offence and the means by which the offence was committed. However, the Trial Chamber decided that these obligations in relation to what must be pleaded in the indictment are not to be seen as a substitute for the Prosecution’s obligation to give pre-trial discovery, which is provided by Rule 66, or the names of witnesses, which is provided by Rule 67. The Trial Chamber thus drew a clear distinction 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.
According to the Trial Chamber, a valid indictment must identify the essential factual ingredients of the offence charged; it must specify the approximate time, place and manner of the acts or omissions of the accused upon which the Prosecution relies, and it must provide fair information and reasonable particularity as to the nature of the offence charged. The Trial Chamber cited various common law authorities in support of this finding.
In its Decision the Trial Chamber further decided that the supporting material given during the discovery process cannot be used by the Prosecution to fill any gaps in the material facts pleaded in the indictment. An interpretation to the contrary of the Decision on the Preliminary Motion by Defence Counsel on Defects in the Form of the Indictment of 4 September 1998 in the Nyiramashuko case (ICTR-97-21-I) by a Trial Chamber of the ICTR was unacceptable to this Trial Chamber. As an exception to this finding, however, the Chamber accepted the limited (and rare) case where all of the witness statements identify uniformly and with precision the circumstances in which the offence charged is alleged to have occurred, so that it would be a pointless technicality to insist upon the indictment's being amended to reflect that information.
The Trial Chamber further found that where the accused is charged with individual responsibility pursuant to Article 7(1) of the Statute, either by way of personal participation or as aiding and abetting those who did so participate, the Prosecution must plead as material facts in the indictment the particular acts of the accused himself or the particular course of conduct on his part which are alleged to constitute that responsibility.
Where the accused is charged pursuant to Article 7(3) with responsibility as a superior for the actions of others, the Trial Chamber found that the Prosecution must plead as material facts in the indictment not only the particular acts of the accused himself or the particular course of conduct on his part which are alleged to constitute that responsibility but also what is alleged to have been the conduct of those persons for which he is alleged to be responsible as a superior. In the Trial Chamber’s view it is no answer to a request for particulars that the accused knows the facts for himself; the issue in relation to particulars is not whether the accused knows the true facts but, rather, whether he knows what facts are to be alleged against him. It cannot be assumed that the two are the same. The Trial Chamber expressed its disagreement with the Decision of Trial Chamber I on the Defence Motion of 19 June 1997 in Respect of Defects in the Form of the Indictment of 25 September 1997 in the Aleksovski case (IT-95-14/1-PT).
Finally, the Trial Chamber decided that it is not sufficient that an accused is made aware of the case to be established upon only one of the alternative bases pleaded. The Trial Chamber found that the Decision on the Defence Motion to Dismiss the Indictment Based Upon Defects in the Form Thereof of 4 April 1997 in the Blaskic case (IT-95-14-PT) is not authority to the contrary since, in its view, the decision makes it clear that the accused must be able to prepare his defence on either or both alternatives.
In support of this finding, the Trial Chamber not only recalled the jurisprudence of this Tribunal but also the Judgement of 2 September 1998 in the Akayesu case (ICTR-96-4-T) by Trial Chamber I of the International Criminal Tribunal for Rwanda (hereinafter "the ICTR").
Oral argument in interlocutory motions
The Trial Chamber recalled that it is the general practice of the Tribunal not to hear oral argument on interlocutory motions prior to the trial unless good reason is shown for its need. In the view of this Chamber, that general practice is soundly based upon the peculiar circumstances in which the Tribunal operates, in that counsel before it invariably must travel long distances and Judges and Prosecution attorneys are often engaged in other trials.