"Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic"
3 October 2002
· On 16 September 2002 the Prosecution filed its response to the submission of the accused, in which it opposed each ground raised in the Motion for Acquittal (with the exception of Sniping Incident No. 12) and requested the Trial Chamber to deny the relief sought and to proceed on all counts of the Indictment.
The Trial Chamber entered a judgement of acquittal with regard to Scheduled Sniping Incidents Nos. 7 and 12 in support of counts 1, 2 and 4, and with regard to Scheduled Sniping Incident No. 19 in support of counts 1, 3 and 4. It dismissed the remainder of the Motion for Acquittal.align
The Applicable Standard of Proof under Rule 98 bis
The Defence considered that the applicable standard for deciding on a Motion for Acquittal is whether there is "sufficient evidence to prove the guilt of the Accused" beyond a reasonable doubt with respect to the counts of the Indictment. The Prosecution counter-argued that the appropriate standard of review under Rule 98 bis is whether, as a matter of law, "there is some evidence which, if accepted by the Trial Chamber, could sustain a conviction of the accused beyond a reasonable doubt".
The Trial Chamber referred to the findings of the Jelisic Appeals Chamber Judgement, according to which the "key concept" in interpreting the requirement of Rule 98 bis is "the capacity of the prosecution evidence (if accepted) to sustain a conviction beyond a reasonable doubt by a reasonable trier of fact" and the test to apply is "whether a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question".3
The Trial Chamber decided to apply the standard of proof of the Jelisic Appeals Chamber Judgement as it did not find any argument or cogent reasons for departing from that standard. In line with the jurisprudence of the Tribunal, it decided not to assess the credibility and reliability of the Prosecution evidence until all the evidence has been formally given, clearly stating that evidence should be dismissed where the evidence is so manifestly unreliable or incredible that no reasonable tribunal of fact could credit it. It also decided that it would not assess the credibility and reliability of witnesses as requested by the Defence, unless the Prosecution case could be said to have "completely broken down".4
The Substance of the Motion for Acquittal
General Issues on Sniping
The definition of a civilian
The Defence expressed the view that the Prosecution had failed to prove that the targeted people were civilians and defined a civilian as a person which has "no connection with the activities of the armed forces". It claimed that this cannot be proven by merely describing the clothing, the age or the sex of the victim(s). It argued rather that the Prosecution had to establish "the activities of the said person (...) as well as its assignments in the specified period of time" which it had failed to do. The Prosecution responded that while "a prerequisite of an unlawful attack is that the victim is a civilian who is not taking an active part in hostilities", the evidence should be assessed in light of the presumption, enshrined in Article 50 (I) of the Additional Protocol to the Geneva Conventions (hereinafter "AP.I"), that "in case of doubt whether a person is a civilian, that person shall be considered to be a civilian".5
While recognising that the meaning of the word "civilians" may have implications with respect to facts that need to be established, he Trial Chamber did not expand on the definition. It found, on the basis of the evidence presented and within the margin of appreciation of what should be established, that a reasonable trier of fact could conclude beyond a reasonable doubt that the victims of the Sniping Incidents were civilians.
Definition of sniping
The Defence defined sniping as fire "from rifles with optical sights, used for single shots". The Prosecution defined sniping as "the deliberate targeting of civilians with direct fire weapons".
The Trial Chamber noted that the case "focuses on whether civilians were targeted either deliberately or indiscriminately rather than on whether a specific weapon was used".6 It also referred to the Oxford English Dictionary which defines "to snipe" as "to shoot or fire at (men, etc.) one at a time, usually from cover and at long range" as well as to the different meanings of sniping reflected in the evidence. It rejected, "at this stage of the proceedings", the "narrow definition proposed by the Defence".7
The identity of the shooter and the intention to kill
The Defence argued that the intention to kill cannot be established if the perpetrator is not known and noted that the Prosecution had not brought any evidence in this regard and that had therefore not prove that any deliberate killing or injury had occurred.
The Trial Chamber found that "it cannot be excluded that a reasonable trier of fact could, even without knowing the identity of the shooter, and on the basis of an evaluation of the circumstances under which the shooter acted, determine whether the killing or the infliction of injury was deliberate".8
The proximity of the victim to the confrontation lines
The Defence referred to the proximity of the victim to the confrontation lines at the time of the incident and argued that such proximity does not in any event permit the conclusion beyond reasonable doubt that the victim was deliberately targeted.
In this matter the Trial Chamber held that "the proximity of the victim to the confrontation lines in itself neither implies nor excludes that the victim was deliberately targeted" and therefore rejected the Defence argument.
The origin of sniping fire
The Defence argued that the Prosecution had failed to determine the source of fire of the Sniping Incidents and had therefore failed to prove that the accused had ordered, aided and abetted, or even could have known about those incidents. The Prosecution argued that what must be proved is that "whoever fired the shot was subject to the command and control of the accused", through evidence such as the "direction of fire" and "a pattern of behaviour of fire being deliberately aimed at civilians from the Bosnian Serb-held territory along that direction of fire" so as to which would eliminate "any reasonable possibility that the shots came from the BiH side".
The Trial Chamber held that "the origin of sniping fire need not be precisely established". Applying the test of the Jelisic Appeals Judgement, it stated that it is "sufficient that the Trial Chamber be satisfied that the evidence presented, if believed, would permit a reasonable tribunal of fact to conclude that the shot(s) originated from someone under the command and control of the Accused".9
The Trial Chamber concluded that the Prosecution had presented sufficient evidence to meet the standard of Rule 98 bis of the Rules on all counts as charged in the Indictment with the exception of Scheduled Sniping Incidents Nos. 7, 12 and 19. It also observed that "both the Defence and the Prosecution made extensive submissions which raised issues which the Trial Chamber will duly consider at the final judgement phase of this Trial".10