Judicial Supplement 21 - The Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic & Dragoljub Prcac

The Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic & Dragoljub Prcac - Case No. IT-98-30/1-T

"Decision on Defence Motions for Acquittal"

15 December 2000
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)

Rule 98 bis of the Rules of Procedure and Evidence - Applicable standard of proof - Cumulative charging - Article 7 of the Statute - Article 5 of the Statute - Mens rea - Discriminatory intent - Common design.

(1) The applicable objective standard of proof under Rule 98 bis of the Rules of Procedure is whether a reasonable trier of fact could, upon the evidence presented by the Prosecutor, taken together with all the reasonable inferences and applicable legal presumptions and theories that might be applied to it, convict the accused;
(2) Article 7 of the Statute lays down the modes of liability which form the basis for individual criminal responsibility for the crimes set out in Articles 2-5 of the Statute.

Procedural Background

On 26 October 2000, the Prosecution filed an amended indictment in which the five co-accused were charged with crimes against humanity, violations of the laws or customs of war all falling under Article 7(1) of the Statute1. The three co-accused Milojica Kos, Mlado Radic and Dragoljub Prcac are also indicted as superiors and charged on the basis of their criminal responsibility pursuant to Article 7(3) of the Statute2.

On 6 November 2000, pursuant to Rule 98 bis of the Rules of Procedure and Evidence3, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac filed Motions in which they applied for judgement of total acquittal. The accused Mlado Radic requested partial acquittal and did not challenge the allegations in counts 14-17.

On 21 November 2000, the Prosecution filed a consolidated Response to the Motions of the accused for a judgement of acquittal in which it opposed each ground raised in the applications and requested that the Trial Chamber deny the relief sought and that it proceed on all counts.

Trial Chamber I heard the oral arguments of the parties on 28 November 2000.

The Decision

Pursuant to Rule 98 bis of the Rules of Procedure, the Trial Chamber granted in part the Motions.

The Reasoning

In line with prior decisions4, Trial Chamber I first found "that it may enter a judgement of acquittal not only with regard to an entire count of the indictment, but also with regard to a factual incident or event cited in the indictment in support of the offence".

The Trial Chamber then held that the applicable objective standard of proof under Rule 98 bis of the Rules "is whether a reasonable trier of fact could, upon the evidence presented by the Prosecutor, taken together with all the reasonable inferences and applicable legal presumptions and theories that might be applied to it, convict the accused."5

By deciding that the applicable standard implied by Rule 98 bis was "whether a reasonable Trial Chamber could on the basis of the evidence presented by the Prosecution convict the accused", Trial Chamber I considered that it "implicitly decided not to assess the credibility and reliability of the witnesses called by the Prosecution until all the evidence" is given, except when the evidence is so unreliable that no reasonable trier of fact could credit it6.

In reviewing evidence under Rule 98 bis, the Trial Chamber "is entitled to take into consideration any reasonable inference and presumption regarding the applicable law." In doing so in this case, Trial Chamber I considered that sufficient evidence had "been presented by the Prosecution which, if accepted, could prove the elements of the crimes referred to by the Defence."7

Cumulative charging

The Trial Chamber further found that "[i]ssues of cumulative charging are best decided at the end of the case. So long as the proof adduced by the Prosecution could satisfy a reasonable court beyond reasonable doubt that the elements of one of the allegedly cumulative charges had been satisfied, the case continues."

Responsibility of the accused as superiors

Trial Chamber I ruled that Article 7 of the Statute lays down "the modes of liability which form the basis for individual criminal responsibility for the crimes set out in Articles 2-5 of the Statute. Where allegations are made that crimes have been committed by way of command responsibility" under Article 7(3) of the Statute and where "the Defence posits that no reasonable trier could find that the accused failed to prevent or punish" those under his command from perpetrating the offences charged, such arguments must be considered under Rule 98 bis. However, in this case, the Trial Chamber found that there was sufficient evidence, if accepted, that could lead to a conviction of Mlado Radic and Dragoljub Prcac within the meaning of Article 7(3) of the Statute for offences committed in the Omarska camp.

Trial Chamber I also found "that no reasonable trier of facts could convict the accused Kvocka, Kos, Radic and Prcac of crimes committed in Keraterm and Trnopolje camps upon the evidence presented" even if taken together with all reasonable inferences and applicable legal presumptions. Given the gravity of the incidents referred to "in support of 'charges' or 'offences' such as murder and torture or inhumane treatment, it seems only fair that the court acknowledge formally when no evidence has been advanced to prove offences or charges or events."

The Trial Chamber therefore granted "the Motion for acquittal of the accused Kos insofar as it concerns offences committed in Keraterm and Trnopolje" and extended the judgement of partial acquittal to the accused Miroslav Kvocka, Mlado Radic and Dragoljub Prcac.

Mens rea

Trial Chamber I considered that mens rea may in appropriate circumstances be inferred from conduct, and that sufficient evidence had been presented, under "the terms of Rule 98 bis, of the criminal conduct of the accused Radic and Zigic to allow the necessary discriminatory intent for Article 5 to be inferred on the basis of participation in a common design."8

Common purpose theory of liability

With regard to counts 1-3 of the amended indictment against the accused Milojica Kos, the Trial Chamber emphasised that "[u]nder the common purpose theory of liability [...], which the Chamber may or may not ultimately accept, it is not necessary for the Prosecution to prove the direct participation of each accused in every criminal act." The "theory of liability is based on the participation of the accused in a system created to further a criminal design that he shares, and there is sufficient evidence to support its use in this case."

Trial Chamber I consequently rejected this part of the Motion.

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1. "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."
2. "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."
3. "(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor's case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).
(B) 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."
4. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Decision on Defence Motion for Judgement of Acquittal, 6 April 2000 (hereinafter the "Kordic and Cerkez Decision", summarised and analysed in Judicial Supplement No. 14); The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic ("Foca"), Case No. IT-96-23-T and IT-96-23/1-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (hereinafter the "Foca Decision", summarised in Judicial Supplement No. 18).
5. On the test to be applied under Rule 98 bis, see the Foca and the Kordic and Cerkez Decisions.
6. On the definition of the reliability of a witness' evidence and on the distinction to be drawn between that reliability and the witness' credibility, see the Foca Decision. On the separate function of the Judges as triers of fact and as triers of law and on its impact on questions of reliability and credibility, see the Kordic and Cerkez Decision.
7. On a similar wording of the test, see the Foca Decision.
8. See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-T, Trial Chamber II, Judgement, 7 May 1997, in which the Trial Chamber held that "the perpetrator must know of the broader context in which his act occurs" (para. 656); The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II, Judgement, 21 May 1999, in which the Trial Chamber ruled that "actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan, is necessary to satisfy the requisite mens rea element of the accused" (para. 134); The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13), in which the Trial Chamber held that it suffices that the agent, in the capacity he willingly held, "knowingly took the risk of participating in the implementation of th[e] context" in which his acts were perpetrated (para. 251).