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The Hague, 9 October 1996
Celebici case/Update 7 : Trial Chamber II denies Delalic's motion on the form of the indictment.
Trial Chamber II, presided over by Judge Gabrielle Kirk McDonald, has disposed of the motion by the accused Zejnil DELALIC based on defects in the form of the indictment.
Filed on 3 July 1996, this motion had been orally argued by the Defence and the Prosecutor during an hearing held on 20 August 1996. On 2 October 1996, the three-judge panel handed down its decision: "The Trial Chamber (...) denies the Defence Motion on Defects in the Form of the Indictment".
SUMMARY OF THE DECISION.
The Trial Chamber addresses separately each argument set forth in the Motion, which it has read as alleging that the indictment is "vague, undefined, contradictory, and ungrounded".
1. Questions of fact.
The Defence argued that several statements in the indictment are factually incorrect : the forces loyal to the Government of Bosnia and Herzegovina could not have "attacked or taken control of " their own territory; the individuals who were brought to collection centres are not specified; information pertaining to the accused's responsibilities are inaccurate.
Considering that these objections are "based on factual arguments" and that "a motion on the form of the indictment is inappropriate for factual challenges", the Judges endorsed the Prosecutor's view that "disputed matter of facts must be decided at trial, after a full opportunity for the presentation of evidence".
The Trial Chamber concludes that "whether or not the allegations listed in the indictment are true ultimately will be determined at trial".
2. Allegations of vagueness.
The Defence claimed that the indictment does not contain particulars in respect of the individuals over whom the accused allegedly had superior authority, that the indictment is "completely undefined" as far as the accused's position of superior authority is concerned, and that the factual description of the injuries attributable to two co-accused should be precise (time and place of occurrence, manner in which they were committed) . Following the standards of precision of indictments set forth by the two Trial Chambers of the Tribunal in three previous decisions, the Judges conclude that"the indictment as against Zejnil Delalic articulates each charge specifically and separately. Moreover, there is a satisfactory identification of the particular acts of participation by Zejnil Delalic (...)" and "the dates and actions over which Zejnil Delalic is said to have superior authority are relatively specific".
3. Request for particulars.
The Defence requested from the Prosecution more precision in the allegations and additional information pertaining to the source of the accused's authority over the Celibici camp and its personnel, the grounds for the allegation of the accused's authority over his co-accused, the allegations of injuries with which two co-accused are charged, and specific dates of alleged actions.
Noting that the Prosecutor had supplied the Defence with relevant documents, statements and documentation, the Trial Chamber concludes that "these documents (...) certainly provide enough information to Zejnil Delalic to allow him to prepare his defence(...)".
4. Cumulative nature of charges.
The Defence contested that the indictment "contain several legal qualifications for the same actions, which without any basis multiplies the responsibility of the accused".
Recalling its decision in the Tadic case where an identical issue was raised, the Judges decline "to evaluate the argument on the basis that the matter is only relevant to the penalty considerations if the accused is ultimately found guilty of the charges in question".
Two co-accused of Zejnil Delalic have also filed motions based on defects in the form of the indictment. These motions were argued in open court by the Defence and the Prosecutor on Tuesday 1 October 1996. The Judges' decision is pending.
International Criminal Tribunal for the former Yugoslavia
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