The Prosecutor v. Dragoljub Kunarac and Radomir Kovac Case No. IT-96-23-PT

"Decision on the Form of the Indictment"

4 November 1999
Trial Chamber (Judges Mumba [Presiding], Cassese and Hunt)


Articles 3, 15, 18(4) and 19 of the Statute and Rules 47, 72(A)(ii) and 96(ii) of the Rules of Procedure and Evidence - form of the indictment; vagueness of the indictment; prima facie case; extent of the Prosecution's obligation to give particulars in an indictment; factual and material allegations.

In order for an accused to be able to prepare his case, an indictment must make clear to him the nature of the responsibility alleged against him, that is, the capacity in which he allegedly committed the charged offences and the material facts by which his particular responsibility will be established. The indictment must leave no doubt as to what the accused is alleged to have done at a particular time period, with whom, to whom, or to what purpose. It must also describe the full conduct complained of which amounts to the crime(s) charged and identify with reasonable clarity where necessary other persons involved, or affected1. The Prosecutor need not prove the facts alleged in the Indictment before trial but merely establish that a prima facie case exists against the accused2 and to put the latter on sufficient notice of the case against him3.

The Issue

The Trial Chamber was seized of a Defence Motion4 which claimed that the Prosecution had failed to fulfil its obligation to provide sufficient particulars in its Amended Indictment (hereinafter 'the Indictment').

The Decision

Stating that the Indictment5 lacked specificity with regard to several of its parts, the Trial Chamber partly granted the Defence Motion. The Prosecutor was directed to amend the Indictment with regard to these instances.

The Reasoning

Each section of the Indictment serves a distinct purpose. The 'Background' Section of the Indictment serves to sketch the context in which the alleged crimes charged in the specific counts were committed but is not meant to form the basis for conviction. The accused can only be convicted on the basis of the specific counts set out in 'The Charges' section of the Indictment. 'Therefore, to the extent that the material allegations in the specifically charged crimes depend on the factual background allegations, the latter need to be proven at trial.'6

The 'General Allegations' section7 complements 'The Charges' and 'Background' sections8. Allegations made in the 'General Allegations' section need not necessarily be repeated in 'The Charges' section. In that regard, paragraphs 8 and 14 of the Decision must be read together9. In addition, when in dispute between the parties, allegations made in the 'General Allegations' section must also be proved at trial10.

'The Charges' section of the Indictment contains the specific counts against the accused. In the present instance, the Trial Chamber considered it necessary to deal with four types of particulars. First, particulars on time periods. Several expressions contained in the Indictment were regarded by the Trial Chamber as too vague11, including expressions such as 'on one occasion, during their detention, in December 1992...'12.

Second, in order to assist the accused to prepare his case, the Indictment must provide particulars on the identities of those involved, that is, it must identify those people whose identity is a material fact to be proved at trial13. Formally, headings or subtitles used in the text of the section are only a shorthand summary of the succeeding paragraphs in which the material facts upon which the Prosecutor relies are to be found. With regard to the extent of particulars to be given by the Prosecution, only the latter matters14.

Third, with regard to the particulars on location, the Trial Chamber generally referred to its previous general remark that the accused can only be convicted on the basis of the specific counts set out in 'The Charges' section of the Indictment and that factual background allegations necessary to prove material allegations in the specifically charged crimes must be proved at trial. Supporting material cannot bridge gaps in the Indictment15.

Four, with regard to the elements of the crimes, the Trial Chamber declared that 'as the Prosecutor does rely upon the circumstances mentioned in Rule 96(ii), those circumstances, amongst others, constitute material allegations, particulars of which the accused is entitled to know in order to properly prepare his defence'16.

In addition, the Trial Chamber stated that contentious matters concerning the application of law should be resolved at trial, notably those issues falling within the scope of Article 3 of the Statute17.

Finally, the Trial Chamber made it clear that, as a complaint about the form of the Indictment, an accumulation of different offences upon the same facts is permissible. The significance of the accumulation of charges is only relevant to the question of sentence18.

For decisions dealing with 'the form of the indictment' and related issues, see the footnote below19.

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1. Paragraph 6.
2. Articles 19(1) and 18(4) of the Statute.
3. The Prosecutor v. Milorad Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, IT-97-25-PT, 24 February 1999 (summarised in Judicial Supplement No. 2) and The Prosecutor v. Brdjanin, IT-99-36-PT, 5 October 1999, which stated that the jurisdiction of the Tribunal depends upon whether the Indictment has pleaded sufficient material facts to establish a prima facie case against the accused in relation to the charge or charges against him.
4. 'Defence Preliminary Motion on the Form of the Indictment', filed on 7 October 1999 by counsel for the accused Kovac.
5. The relevant Amended Indictment against Kunarac and Kovac was reviewed and confirmed on 3 September 1999.
6. Paragraph 8
7. It contains, amongst other things, the general criteria necessary to establish the Tribunal's jurisdiction.
8. Paragraph 11 : 'The relationship between the 'General Allegations' and 'The Charges' sections are closer than the relationship between the 'Background' and 'The Charges' sections.'
9. Paragraph 14 : 'The Trial Chamber is satisfied that the allegations relating to the individual criminal responsibility contained in 'The Charges' section are specific enough to enable the accused to prepare his case in this regard.'
10. See paragraph 11 (see also paragraph 13).
11. On the excessive vagueness of an indictment, see The Prosecutor v. Blaskic, Decision on the Defence Motion to Dismiss the Indictment based upon Defects thereof (Vagueness/Lack of Adequate Notice of Charges), 4 April 1997 and The Prosecutor v. Delalic et al., Decision on the Accused Mucic's Motion for Particulars, 26 June 1996.
12. Paragraph 17.
13. Due consideration should be given to the protection orders.
14. See The Prosecutor v. Blaskic, Decision on the Defence Motion to Dismiss the Indictment based upon Defects thereof (Vagueness/Lack of Adequate Notice of Charges), 4 April 1997, para. 24
15. The Prosecution was directed to amend the Indictment with regard to the exact place of the handing over of two witnesses and two other persons. See The Prosecutor v. Blaskic, Decision on the Defence Motion to Dismiss the Indictment based upon Defects thereof (Vagueness/Lack of Adequate Notice of Charges), 4 April 1997, para. 22.
16. Article 96(ii) states that '[in cases of sexual assaults] (ii) consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be subjected, threatened or put in fear.' Section (ii) of Rule 96 was amended at the third plenary session in May 1994.
17. In the present instance, the issue was whether rape qualified as a violation of the laws or customs of war and whether outrages upon personal dignity were covered by Article 3 of the Statute.
18. The Prosecutor v. Milorad Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, IT-97-25-PT, 24 February 1999 (summarised in Judicial Supplement No. 2), paragraph 5. See also the Akayessu Judgement on that point, ICTR-96-4-T, 2 September 1998. See also The Prosecutor v. Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, para. 17.
19. The Prosecutor v. Milorad Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, IT-97-25-PT, 24 February 1999 (summarised in Judicial Supplement No 2); The Prosecutor v. Brdjanin, IT-99-36-PT, 5 October 1999 (summarised in Judicial Supplement No. 8); The Prosecutor v. Tadic, Decision on the Defence Motion on the Form of the Indictment (Tadic Form of the Indictment Decision), 14 November 1995; The Prosecutor v. Djukic, Decision on Preliminary Motions of the Accused, 26 April 1996; The Prosecutor v. Delalic et al., Decision on Motion by the Accused Zejnil Delalic based on defects in the Form of the Indictment, 2 October 1996; The Prosecutor v. Delalic et al., Decision on the Accused Mucic's Motion for Particulars, IT-96-21-T, 26 June 1996; The Prosecutor v. Blaskic, Decision on the Defence Motion to Dismiss the Indictment based upon Defects thereof (Vagueness/Lack of Adequate Notice of Charges), 4 April 1997; The Prosecutor v. Kovacevic, Decision on the Prosecutor's Request to file an amended indictment, 5 March 1998.