Case No. IT-01-47-T

IN THE TRIAL CHAMBER

Before:
Judge Jean-Claude Antonetti

Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
26 October 2004

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

___________________________________________

DECISION ON THE REQUEST FOR CERTIFICATION TO APPEAL THE DECISION RENDERED PURSUANT TO RULE 98 BIS OF THE RULES

___________________________________________

The Office of the Prosecutor:

Mr Daryl Mundis
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

 

TRIAL CHAMBER II (“Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”),

BEING SEISED of the Joint Defence Request for Certification of Trial Chamber's Decision on Enver Hadzihasanovic and Amir Kubura's Motions for Acquittal filed jointly by counsel for the accused Enver Hadzihasanovic and Amir Kubura (“Defence”) on 4 October 2004 (“Request”) in which the Defence requests the Chamber, on the basis of Rule 73(B) of the Rules of Procedure and Evidence (“Rules”), to certify the Decision on Motions for Acquittal Pursuant to Rule 98 bis of the Rules rendered by the Chamber on 27 September 2004 (“Decision on Motions for Acquittal”),

NOTING the Prosecution Response to Defence Request for Certification to Appeal Rule 98 bis Decision filed by the Office of the Prosecutor (“Prosecution”) on 11 October 2004 (“Response”) in which the Prosecution requests the Chamber to dismiss the Request,

NOTING the Joint Defence Motion Seeking Leave to Reply and Reply to Prosecution Response to Joint Defence Motion for Certification filed by the Defence on 15 October 2004 (“Reply”) in which the Defence requests the Chamber to grant it leave to file a reply and reiterates its certification request,

NOTING the leave to file the Reply granted orally by the Chamber 18 October 2004,1

NOTING the Chamber’s oral decision of 19 October 2004 in which the Chamber stated that a written statement reasoning the decision would be issued,2

Applicability of Rule 73(B) of the Rules

NOTING the Defence Request for certification of appeal pursuant to Rule 73 (B) of the Rules, and the fact that the Prosecution does not object to that Rule being applied in this instance,

CONSIDERING that the Trial Chambers of the Tribunal apply either Rule 73( B) or Rule 108 of the Rules to requests for certification of decisions rendered pursuant to Rule 98 bis of the Rules,

CONSIDERING that under Rule 73(B) of the Rules “?dgecisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings”,

CONSIDERING that, pursuant to Rule 108 of the Rules, “?ag party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgement was pronounced, file a notice of appeal, setting forth the grounds”,

CONSIDERING that the partial rejection of the motions for acquittal in the Decision on Motions for Acquittal is not a decision on the guilt of the accused, that the Request does not come under the Rule 108 of the Rules which covers the appeal of trial judgements, that it falls rather within “other motions” in the meaning of Rule 73 of the Rules and that, consequently, the Chamber considers that Rule 73(B) of the Rules is the relevant Rule in this instance,

Evidence favourable to the Defence

NOTING the Defence Request for certification of appeal on the ground that “the Chamber erred in law by not considering the evidence which could be favourable to the Defence” (paragraph 3(a) of the Request),3

NOTING the Prosecution Response which objects by pointing out that a reconsideration of the Decision on Motions for Acquittal, taking into account evidence favourable to the Defence, might significantly prolong the proceedings, which would run contrary to the purpose of Rule 98 bis of the Rules,4

CONSIDERING that in cases of certification of appeal pursuant to Rule 73( B) of the Rules the question is whether the fact that evidence favourable to the Defence was not examined is one “that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial”, and whether “an immediate resolution by the appeals Chamber may materially advance the proceedings”,

CONSIDERING that those two criteria must be satisfied cumulatively,

CONSIDERING that the purpose of Rule 98 bis of the Rules is to determine whether, in view of the Prosecution evidence, a reasonable trier of fact could find that guilt has been established beyond reasonable doubt,5 that the Prosecution evidence must be taken at its highest, that a decision issued pursuant to Rule 98 bis of the Rules does not require an assessment of the credibility or the reliability of the prosecution evidence, that the Chamber is thus required to assume that the Prosecution evidence is entitled to credence unless incapable of belief,6

CONSIDERING that, in this instance, the Chamber noted that there was sufficient evidence to allow a reasonable Chamber to conclude beyond reasonable doubt that the charges against the accused in the Third Amended Indictment (“Indictment”) were proven, except for the charges for which the Chamber pronounced an acquittal,

CONSIDERING that, when examining the Prosecution evidence, the Chamber assumed that the evidence was entitled to credence unless incapable of belief,

CONSIDERING that to assess the evidence favourable to the Defence would be equivalent to assessing the credibility and reliability of the Prosecution evidence, which would go beyond the scope of Rule 98 bis of the Rules,

CONSIDERING, thus, that the fact that the evidence favourable to the Defence was not assessed is not likely to infringe the rights of the accused as set out in Article 21 of the Statute,

CONSIDERING that were the appeal to be certified, the parties and the Chamber would have to conduct the proceedings in a situation of uncertainty until the Appeals Chamber ruled on whether the Chamber should have considered the evidence favourable to the Defence in the Decision on Motions for Acquittal, and that the date when the Appeals Chamber would make such a ruling was not foreseeable,

CONSIDERING that were the appeal to be certified, the Chamber might possibly be required to suspend the proceedings until the Appeals Chamber rendered a decision,

CONSIDERING that a possible reconsideration of the Decision on Motions for Acquittal, taking into account the evidence favourable to the Defence, would occupy the Chamber for a time, which would again raise the question of whether the proceedings should be suspended,

CONSIDERING that a new Decision on Motions for Acquittal which might ensue might again be appealed, either by the Prosecution pursuant to Rule 108 of the Rules or by the Defence under Rule 73(B) as set out above,7

CONSIDERING that to grant certification based on the fact that the Chamber did not consider the evidence favourable to the Defence might thus significantly prolong and complicate the proceedings, which would run contrary to Rule 73(B) of the Rules, and that there is consequently no cause to certify the appeal on this basis pursuant to Rule 73(B) of the Rules,

Nature of the armed conflict and applicable law

NOTING the Request for certification of appeal on the grounds that “the Chamber erred in law by not addressing the issue of the nature of the armed conflict in Central Bosnia in 1993” (paragraph 3(b) of the Request),8

NOTING the Prosecution Response which submits that this issue has already been discussed in this instance and that the fact that the Appeals Chamber did not rule on the question in its decision on interlocutory appeal on jurisdiction, rendered in this case on 16 July 2003, demonstrates that it is not necessary to qualify the armed conflict,9

CONSIDERING that the Chamber ruled on the applicable law, particularly the law relating to Counts 5, 6 and 7, that it observed that there is no difference in law depending on the nature of the conflict and that, thus, the nature of the armed conflict is not a relevant question in this instance,

Invalidity of Counts 5, 6 and 7

NOTING the Defence argument that “the Chamber erred in law by not addressing the Defence argument that Counts 5, 6 and 7 of the Indictment were invalid” ?…g “because the regulations which were allegedly contravened were not identified” ( paragraph 3(c) of the Request),10

NOTING the Prosecution Response which defines this ground as a defect in the form of the indictment which should have been ruled on before the proceedings commenced,11

CONSIDERING that it is not for the Prosecution to demonstrate the applicable law,

CONSIDERING that the Chamber has competence only regarding customary international law, that Counts 5, 6 and 7 of the Indictment are drafted clearly and unequivocally, referring to Article 3 of the Statute which applies to international and internal armed conflicts,12 that the case-law of the Tribunal has ruled on repeated occasions on the elements of wanton destruction of towns and villages not justified by military necessity, plunder of public or private property, destruction or wilful damage done to institutions dedicated to religion, and that those crimes are therefore well-defined,

CONSIDERING, thus, that the accused are in a position to know the charges brought against them in the Indictment and that their rights under Article 21 of the Statute are not being infringed,

Applicable law in respect of Counts 5, 6 and 7

NOTING the ground put forward by the Defence in its Request that the Chamber erred in law by determining that it was competent to deal with Counts 5, 6 and 7 (paragraph 3(d)-(f) of the Request),13

NOTING the Prosecution Response which defines this ground as an interlocutory appeal challenging jurisdiction which should have been ruled on before the proceedings commenced and which submits that such a legal question lies outside the strict scope of Rule 98 bis of the Rules,14

CONSIDERING that in its Decision on Motions for Acquittal the Chamber ruled on the question of whether it was competent to rule on Counts 5, 6 and 7,

CONSIDERING that other Trial Chambers of the Tribunal have also ruled on questions of law as part of decisions rendered pursuant to Rule 98 bis of the Rules when those questions of law had consequences for the outcome of the respective decisions,15

CONSIDERING that the question of the applicable law with regard to Counts 5, 6 and 7 of the Indictment was raised clearly only after the proceedings commenced when, while presenting its evidence, the Prosecution made it known that it was not intending to define the nature of the armed conflict,

CONSIDERING, moreover, that the Appeals Chamber in the Brdjanin case stated that the purpose of Rule 98 bis of the Rules did not prevent the Trial Chambers from considering questions of law in the instance where their immediate resolution was in the interest of the parties and could advance the proceedings,16

CONSIDERING that at this stage the Chamber cannot rule on the precise nature of the conflict, be it internal or international,

CONSIDERING that were the Chamber to conclude that the conflict was internal, the question of competence raised by the Defence in its Request would assume its full importance and that since this is a fundamental question of law it is likely to significantly affect the outcome of the trial,

CONSIDERING that a resolution of the question by the Appeals Chamber, preferably before the Chamber renders its judgement, may materially advance the proceedings, since a decision finding the Chamber not competent would lessen the counts alleged in this instance from 6 to 3 counts17 and would limit the scope of the judgement and that, consequently, the criteria set out in Rule 73(B) of the Rules have been satisfied in respect of this ground,

Zone of control

NOTING that, lastly, the Defence based its Request on the ground that “the Chamber erred in law by determining that the fact alone that “religious buildings in Guca Gora” and the “church in Travnik” were located in the “zone of control” of the ABiH was sufficient “for the accused Hadžihasanovic to be liable” pursuant to Article 7(3) of the Statute” (paragraph 3(g) of the Request),18

NOTING that the Prosecution did not respond to this point in its Response,

CONSIDERING that nowhere in its Decision on Motions for Acquittal did the Chamber rule on the responsibility of the accused since this is not the purpose of a decision rendered pursuant to Rule 98 bis of the Rules, as set out above,

CONSIDERING that following the structure adhered to throughout the decision, general applicable law and the facts of the case are discussed separately,

CONSIDERING that the discussion of the law relating to command responsibility is in paragraphs 163 to 167 of the Decision on Motions for Acquittal and that paragraphs 153 and 155, which deal with factual findings, do not attempt to set out the applicable law under Article 7(3) of the Statute,

CONSIDERING that paragraphs 153 and 155 of the Decision on Motions for Acquittal state that there is sufficient evidence that religious buildings in Guca Gora and Travnik were damaged in June 1993 by forces under the control of the Accused Hadzihasanovic,

CONSIDERING that the notion of “forces under the control” must be read, in particular, in the light of paragraph 164 of the Decision on Motions for Acquittal,

CONSIDERING, thus, that the ground put forward by the Defence is not relevant and that the criteria set out in Rule 73(B) of the Rules have not been satisfied,

FOR THE FOREGOING REASONS,

PURSUANT to Rule 73(B) of the Rules,

GRANTS the Request in respect of the ground set out in paragraph 3(d), (e ) and (f),

AND REJECTS the remainder of the Request.

 

Done in French and English, the French version being authoritative.

___________________
Presiding Judge of the Chamber
Jean-Claude Antonetti

Done this twenty-sixth day of October 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Hearing transcript, 18 October 2004, page 10176.
2 - Hearing transcript, 19 October 2004, page 10252.
3 - Request, paras. 3(a) and 5 to 13, and Reply, paras. 11-16.
4 - Response, paras. 11-13.
5 - The Prosecutor v. Goran Jelisic, case no. IT-95-10-A, Appeals Judgement, 5 July 2001 (“Jelisic Appeals Judgement”), para. 37; See also The Prosecutor v. Zejnil Delalic et al. (Celebici), case no. IT-96-21-A, Appeals Judgement, 20 February 2001, para. 434.
6 - Jelisic Appeals Judgement, para. 55.
7 - See above, page 3.
8 - Request, paras. 3(b) and 14 to 19.
9 - See in particular the Response, para. 16.
10 - See in particular the Request, paras. 3(c) and 20 to 26.
11 - See in particular the Response, paras. 14 and 15.
12 - In this regard see as an example the Indictments in the cases The Prosecutor v. Pavle Strugar, case no. IT-01-42, and The Prosecutor v. Radoslav Brdjanin, case no. IT-99-36, which are also limited to referring to Article 3 of the Statute, without specifying other norms of international law violated.
13 - See in particular the Request, paras. 3(d) to (f), 27 to 35.
14 - Response, paras. 14 to 18.
15 - See in particular The Prosecutor v. Milomir Stakic, case no. IT-97-24, Decision on Rule 98 bis Motion for Judgement of Acquittal, 31 October 2002, para. 45, and The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, case no. IT-96-23, Decision on Motion for Acquittal, 3 July 2000, para. 11.
16 - The Prosecutor v. Radoslav Brdjanin, case no. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004, para. 11.
17 - The accused were acquitted on Count 2 in the Decision on Motions for Acquittal.
18 - Request, paras. 3(g) and 36 to 40, Reply, paras. 31 to 34.