Decision concerning preliminary Motion on the Form of the Indictment

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Dorothee de Sampayo Garrido-Nijgh

Order of:
1 August 2000

PROSECUTOR

MOMCILO KRAJISNIK

___________________________________________________

DECISION CONCERNING PRELIMINARY MOTION
ON THE FORM OF THE INDICTMENT

___________________________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Nicola Piacente
Ms. Brenda Hollis

Counsel for the Accused:

Mr. Goran Neskovic

I. INTRODUCTION

Pending before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991 (“International Tribunal”) is a preliminary motion alleging defects in the form of the indictment which was confirmed on 25 February 2000 and reconfirmed after being amended on 7 March 2000. On 8 June 2000, the “Defendant’s Preliminary Motion Based on Defects in the Form of the Indictment ” (“Defence Motion”) was filed by counsel for the accused, Momcilo Krajišnik (“Defence ”). On 22 June 2000, the “Prosecutor’s Response to Defendant’s Preliminary Motion Based on Defects in the Form of the Indictment” (“Prosecution Motion”) was filed by the Office of the Prosecutor (“Prosecution”). On 4 July 2000, subsequent to leave being granted by the Trial Chamber, the Defence filed the “Defendant’s Reply to Prosecutor’s Response to Defendant’s Preliminary Motion Based on Defects in the Form of the Indictment” (“Defence Response”).

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties heard on 19 July 2000,

HEREBY ISSUES ITS WRITTEN DECISION.

II. ARGUMENTS OF THE PARTIES

A. The Defence

1. The Defence submits that the Prosecution must define with more precision and clarity the names of various political groups and the accused’s function and position in them¹. The Defence also complains that the Prosecution fails to name other persons with whom the accused is alleged to have committed the crimes and to differentiate between their actions and those of the accused². The Defence requests that the generalised relationship asserted in the indictment between Radovan Karadzic and the accused be deleted³. The Defence further submits that in paragraphs 10, 18, 20, 21, 23 and 25 of the indictment, the Prosecution expands the time frame set out in paragraph 5 from 30 December 1992 to 31 December 1992⁴. It is also submitted that there are various phrases in the indictment which are unclear and merit further clarification⁵.

2. The Defence complains that the scope of the accused’s individual criminal responsibility is not clearly defined and that allegations for each crime must specify the time and place alleged, as well as the type of the accused’s responsibility under Article 7(1) or Article 7(3) of the Statute of the International Tribunal (“Statute”)⁶. The Defence seeks an order that the Prosecution submit an annex as part of the indictment indicating the form of participation (planning, instigating, etc.); the precise time and place of the alleged criminal acts and the precise form of individual criminal responsibility alleged pursuant to Article 7(1) or Article 7(3), or both⁷.

3. The Defence submits that the supporting materials do not relate to the charges⁸ and further submits that an interview with the accused which forms part of the supporting materials should be removed⁹.

B. The Prosecution

4. The Prosecution submits that it is not required to provide any of the particulars requested by the Defence¹⁰ and that most of the phrases complained of are either explained in the indictment¹¹ or have a plain and ordinary meaning. The Prosecution submits that the Defence complaints relate to allegations of fact which are matters to be determined at trial¹².

5. The Prosecution also submits (a) that the facts provided in the indictment are sufficiently precise because of the widespread and massive nature of the allegations and the accused’s high level of responsibility¹³; (b) that it is required neither to choose the type of liability under Article 7( 1)¹⁴ nor to choose between liability under Article 7(1) and Article 7(3)¹⁵, and (c) it is a matter for the fact finder to determine the legal characterisation of the accused’s conduct from the evidence presented¹⁶.

6. The Prosecution further submits that the relationship between the supporting material and the charges¹⁷, as well as the sections of the indictment concerning general allegations and additional facts¹⁸, are not matters to be raised in a preliminary motion on the form of the indictment .

III. APPLICABLE LAW

7. Article 18.4 of the Statute states that indictments must contain a “concise statement of the facts and the crime or crimes with which the accused is charged under the Statute”. Similarly, Rule 47(C) of the Rules of Procedure and Evidence (“Rules”) states: “The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.”

8. The accused is entitled to particulars “necessary in order for the accused to prepare his defence and to avoid prejudicial surprise”¹⁹. However, there is a difference between “the facts of the case” and the evidence required to prove those facts. The facts must be pleaded whilst the evidence is adduced at trial. It is then for the Trial Chamber to determine at the end of the trial whether there is enough evidence to support the charges pleaded in the indictment ²⁰. It follows that “disputes as to issues of fact are for determination at trial”²¹ and not via motions relating to the form of the indictment.

9. In cases where it is alleged that the accused’s liability for crimes arising from his position as a superior, the accused is entitled to know the Prosecution allegations as to (a) his conduct as a superior and (b) the conduct of those for whom he is alleged to be responsible²². While decisions by Trial Chambers have emphasised the need for precision in the indictment , the need for precision in pleading the material facts depends on the nature of the case and the proximity of the accused to the events. Thus, wherever the accused’s liability is said to arise from his superior responsibility, the material facts are:

(1) the relationship between the accused and the others who did the acts for which he is alleged to be responsible; and (2) the conduct of the accused by which he may be found (a) to have known or had reason to know that the acts were about to be done, or had been done, by those others, and (b) to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who did them ²³.

In such a case based upon superior responsibility, the facts will necessarily be stated with less precision than in a case based on personal responsibility²⁴. A high degree of specificity relating to the identity of the victims and the dates is not possible²⁵. It is sufficient to identify the persons who committed alleged crimes and the victims by means of the category or group to which they belong²⁶.

IV. ANALYSIS

10. The Trial Chamber finds that there is no lack of precision in the pleading of the material facts in the indictment, as the facts are sufficiently pleaded and it would be unreasonable to ask the Prosecution for further precision.²⁷

11. Having regard to the higher level of responsibility alleged against this accused , the Trial Chamber finds that the Prosecution has satisfied, for the purpose of the indictment, the requirements for specificity in setting out the means by which the alleged crimes were committed, the persons who committed the alleged crimes, the locations, the victims and the approximate dates of the alleged crimes. However , the Trial Chamber notes that the Prosecution has agreed to confine the allegations in the indictment to the time period set out in paragraph 5, thereby making the time period for the commission of crimes alleged between 1 July 1991 and 30 December 1992.

12. The Defence requests that the Prosecution be ordered to produce an annex to the indictment to set out the exact manner in which the accused allegedly committed the crimes. In this request, the Defence rely on a similar order made in Kolundžija & Dosen²⁸. However, this case differs materially from Kolundžija. In that case, the accused are charged as shift commanders of a camp and the scope of their responsibility is therefore limited when compared with the scope of responsibility of the accused in this case who is alleged to have been a high ranking official in the Bosnian Serb leadership . Because the present case is a broadly based case involving forty-one municipalities and a wide range of offences, the degree of specificity required in the indictment is necessarily less than that required in cases such as Kolundžija. The Prosecution is therefore not required to provide the annex requested by the Defence as part of the indictment.

13. In this respect however, the Trial Chamber notes that the Prosecution will be required to provide in its pre-trial brief details of the offences allegedly committed and the precise role the accused is said to have played. While it is open to the Prosecution to plead forms of liability in the alternative and it is for the Trial Chamber to determine at the end of the trial what (if any) liability is made out, the Prosecution is not thereby absolved from the responsibility of stating in the brief how they allege that the accused is guilty of the crimes with which he is charged. Thus, the Trial Chamber will expect the pre-trial brief to show, with respect to each crime, what is the nature of the alleged individual criminal responsibility of the accused and how the Prosecution intends to make out its case.

14. Finally, with regard to the Defence’s submission that the supporting materials do not reflect the charges and that the interview with the accused provided by the Prosecution be removed from the supporting materials, the Trial Chamber finds that these are not matters appropriately dealt with in a motion on the form of the indictment . Matters concerning the admissibility of evidence are appropriately dealt with at trial.

V. DISPOSITION

PURSUANT TO Rule 72 of the Rules,

THE TRIAL CHAMBER HEREBY DISMISSES the Defence motion.

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

___________________________
Richard May
Presiding

Dated this first day of August 2000
At The Hague
The Netherlands (Seal of the Tribunal)

1- Para.20-22, 31 and 37 of the Defence Motion.
2- Para.20, 23, 24, 34, 36 and 39 of the Defence Motion.
3- Para.23 of Defence Motion and Transcript of Oral Argument heard on 19 July 2000 (“Transcript”), p. 39.
4- Para.27, 32 and 33 of Defence Motion.
5- Para.23, 26, 34, 38 and 41 of Defence Motion.
6- Para.28 and 33 of Defence Motion.
7- Para.47 of Defence Motion, Transcript, p.30.
8- Para.50 of Defence Motion.
9- Para.54 of Defence Motion.
10- Para.25 of Prosecution Motion.
11- Para.23 of Prosecution Motion.
12- Para.27 of Prosecution Motion.
13- Para.44, 47, 52 and 53 of Prosecution Motion, Transcript, p.37-38.
14- Para.64 of Prosecution Motion.
15- Para.72 of Prosecution Motion.
16- Para.63 of Prosecution Motion, Transcript, p.34.
17- Para.75 of Prosecution Motion.
18- Para.59 of Prosecution Motion.
19- Prosecutor v. Delalic, “Decision on the Accused Mucic’s Motion for Particulars”, Case No. IT-96-21-T, 26 June 1996, para.9.
20- Prosecutor v. Brdanin, “Decision on Motion to Dismiss Indictment”, Case No. IT-99-36-PT, 5 October 1999, para.15.
21- Prosecutor v. Kvocka, “Decision on Defence Preliminary Motions on the Form of the Indictment” (“Kvocka”), Case No.IT-98-30-PT, 12 April 1999, para.40.
22- Prosecutor v. Krnojelac, “Decision on the Defence Preliminary Motion on the Form of the Indictment” (“Krnojelac Decision on Form of Indictment”), Case No. IT-97-25-PT, 24 February 1999, para. 38.
23- Prosecutor v. Krnojelac, “Decision on Preliminary Motion on Form of the Amended Indictment” (“Krnojelac Decision on Form of Amended Indictment”), Case No. IT-97-25-PT, 11 February 2000, para.18.
24- Ibid.
25- Kvocka, para.17.
26- Krnojelac Decision on Form of the Indictment, para.46 and 55. An accused may be charged either alternatively or cumulatively under Article 7(1) and Article 7(3) of the Statute. Whether the charges are substantiated based on the evidence presented is a matter to be dealt with at trial: Prosecutor v. Kordic and Cerkez, “Decision on the Joint Defence Motion to Strike paragraphs 20 and 22 and all References to Article 7(3) as Providing a Separate or an Alternative Basis for Imputing Criminal Responsibility”, Case No. IT-95-14/2-PT, 2 March 1999, para.6.
27- The Prosecution is not required to provide evidence in the indictment but only to plead the material facts.
28- Prosecutor v. Kolundžija and others, Decision on Preliminary Motions (“Kolundžija”), Case No. IT-95-8-PT, 10 February 2000, para.15.