IN THE TRIAL CHAMBER

Before:
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge Antonio Cassese
Judge David Anthony Hunt

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
4 November 1999

PROSECUTOR

v.

DRAGOLJUB KUNARAC
RADOMIR KOVAC

__________________________________________________________________________

DECISION ON THE FORM OF THE INDICTMENT

__________________________________________________________________________

Office of the Prosecutor:
Mr. Dirk Ryneveld
Ms. Peggy Kuo
Ms. Hildegard Uertz-Retzlaff

Counsel for the Accused:
Mr. Slavisa Prodanovic and Ms. Mara Pilipovic for the accused Mr. Dragoljub Kunarac
Mr. Momir Kolesar for the accused Mr. Radomir Kovac

 

A. Introduction

1. This Trial 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 ("International Tribunal") is seised of the "Defence Preliminary Motion on the Form of the Indictment" ("Motion"). The Motion was filed on 7 October 1999 by counsel for the accused Radomir Kovac ("Defence"). The "Prosecution’s Response to Defence Preliminary Motion on the Form of the Amended Indictment" ("Response") was filed on 25 October 1999.

 

B. The Amended Indictment

2. The relevant Amended Indictment against Dragoljub Kunarac and Radomir Kovac was reviewed and confirmed on 3 September 1999. The two accused are charged with various crimes committed in Foca and its surrounding areas between mid-1992 and early 1993. Radomir Kovac is charged with four counts (counts 22 to 25). The first two of these - enslavement and rape - are charged as crimes against humanity punishable under Article 5 of the Statute of the International Tribunal ("Statute"). The last two counts – rape and outrages upon personal dignity - are charged as violations of the laws or customs of war punishable under Article 3 of the Statute.

3. The "Background" section of the Amended Indictment encompasses paragraphs 1.1 to 1.11. The "Accused" section encompasses paragraphs 2.1 and 2.2, while paragraph 3.1 is entitled "Superior Authority". The "General Allegations" section runs from paragraph 4.1 to paragraph 4.7. "The Charges" section encompasses paragraphs 5.1 to 11.7, including the 25 counts with which the two accused are variously charged.

 

C. The form of indictments

4. Before dealing with the Motion, the following should be borne in mind when considering the form of indictments.

5. The Statute requires that "[ u] pon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute".1 To confirm the indictment transmitted by the Prosecutor, a Judge has to be "satisfied that a prima facie case has been established by the Prosecutor".2 This means that, as far as the indictment is concerned, (a) the Prosecutor does not need to prove the facts alleged before trial and (b) the indictment itself must put an accused on sufficient notice of the case against him.

6. Regarding the second consequence, in order to prepare his case, an indictment must make clear to an accused (a) the nature of the responsibility alleged against him and (b) the material facts by which his particular responsibility will be established.3 As was stated in the "Decision on the Defence Preliminary Motion on the Form of the Indictment" in Prosecutor v. Milorad Krnojelac ("Krnojelac Decision"), with references to Articles 18 and 21 of the Statute:

The extent of the prosecution’s obligation to give particulars in an indictment is to ensure that the accused has a "concise statement of the facts" upon which reliance is placed to establish the offences charged, but only to the extent that such statement enables the accused to be informed of the "nature and cause of the charge against him" and in "adequate time [ …] for the preparation of his defence".4

In other words, the capacity in which the accused allegedly committed the charged offence must be clearly defined. The indictment must also leave no doubt as to what the accused is alleged to have done at a particular venue on a particular date during a particular time period, with whom, to whom, or to what purpose. It must describe the full conduct complained of which amounts to the crime(s) charged. It must identify with reasonable clarity other persons involved, or affected, where necessary.

7. It further follows that neither the supporting material nor the witness statements made available to an accused under Rule 66 of the Rules of Procedure and Evidence ("Rules") can be used to fill in any gaps in the indictment.5 An accused could be prejudiced were the Prosecutor to be allowed, for example, to introduce material facts through the calling of additional witnesses at trial instead of applying for leave to amend the indictment.

 

D. Challenges to the Amended Indictment

1. Challenges to the "Background" section

8. The "Background" section of the Amended Indictment serves to sketch the context in which the alleged crimes charged in the specific counts were committed6– the accused can only be convicted on the basis of the specific counts set out in "The Charges" section of the Amended Indictment. Therefore, to the extent that the material allegations in the specifically charged crimes depend on the factual background allegations, the latter needs to be proven at trial.

9. To the extent that the material allegations in the specifically charged crimes may depend on the factual background allegations, the Defence’s assertions regarding paragraphs 1.17, 1.28, 1.89 and 1.1110 of the Amended Indictment relate to possible factual disputes to be resolved by the Trial Chamber at trial.

10. As to paragraphs 1.3-1.711, 1.912 and 1.1013 of the Amended Indictment, even though the factual allegations made therein seemingly relate to the actions of Dragoljub Kunarac only, these paragraphs cannot be deleted, if only for the same reason.

2. Challenges to the "General Allegations" section

11. The "General Allegations" section of the Amended Indictment contains allegations relating to, amongst other things, the general criteria necessary to establish the jurisdiction of the International Tribunal. More specific details are contained in "The Charges" section of the Amended Indictment. The relationship between the "General Allegations" and "The Charges" sections are closer than the relationship between the "Background" and "The Charges" sections. Allegations made in the "General Allegations" section need not necessarily be repeated in "The Charges" section. Nevertheless, when in dispute between the parties, allegations made in the "General Allegations" section also have to be proven at trial.

12. The Defence’s concern over the lack of precision of the time period in paragraph 4.3 of the Amended Indictment14 will be addressed in the next sub-section.

13. As to paragraph 4.4 of the Amended Indictment, whether in fact the alleged actions of Radomir Kovac can be regarded as part of a widespread, large-scale or systematic attack against a civilian population under Article 5 of the Statute15, is to be resolved by the Trial Chamber at trial.

14. The Defence seems to be concerned that paragraph 4.6 of the Amended Indictment, in which the basis for the individual criminal responsibility of the accused Radmir Kovac is stated, might take the allegations in the "Background" and "General Allegations" sections as already having been proven.16 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.

3. Challenges to "The charges" section

15. Paragraphs 11.1-11.7 of the Amended Indictment encompass the four specific counts against Radomir Kovac.

(a) Particulars on time periods

16. Except for the time periods dealt with in the following paragraph, the Defence’s request for more precise time periods in paragraphs 11.1-11.6 of the Amended Indictment is misconceived.17 In general, the dates in "The Charges" section are sufficiently precise for the accused to prepare his case.

17. However, the Trial Chamber is of the view that the Defence is entitled to more precise dates in the following instances. The time period in paragraph 11.5 of the Amended Indictment – "[ o] n one occasion, during their detention [ …] " - is too vague.18 For example, it is unclear19 whether the forced naked dancing took place before witness FWS-75 and victim A.B. were taken to the Hotel Zelengora around 20 November 199220 or on or after "the night when FWS-75 and the other women" were brought back to the Brena apartment.21 Similarly, "[ o] n the night when FWS-75 and the other women were brought back to the apartment"22, as well as "[ i] n December 1992"23, when FWS-75 was allegedly handed over to Janko Janjic, are too vague.24

The Prosecutor is directed to amend the Amended Indictments accordingly.

(b) Particulars on the identities of those involved

18. The Defence’s assertion25 that the "two other women", referred to in paragraphs 11.1 and 11.2 of the Amended Indictment, need to be identified is correct. In the Prosecution’s Response, the identity of the two women are confirmed as A.B. and A.S.26; the Prosecutor also indicated her willingness to disclose to the Defence a BCS version of the statements of witnesses FWS-87 and FWS-75 in which the complete initials are given.27 However, the Trial Chamber is of the view that an amendment of the Amended Indictment indicating the identity of the two women is necessary because their identity is a material fact to be proved at trial.

The Prosecutor is directed to amend the Amended Indictment accordingly. Where directed to amend the Amended Indictment in relation to the identities of those involved, the Prosecutor should give due consideration to the protection orders in place.

19. The Defence asserts that the identity of various people mentioned or alluded to in paragraphs 11.2 and 11.3 of the Amended Indictment needs to be clarified.28 As far as witness FWS-87 is concerned, what remains unclear is whether the reference in paragraph 11.2 to her being "frequently sexually assaulted" refers only to the allegation in paragraph 11.4 that, while allegedly detained in Radomir Kovac’s apartment, she was raped by Radomir Kovac and an unidentified man. Were the Prosecutor to allege that FWS-87 was sexually assaulted by people other than Radomir Kovac and the unidentified man, more particulars have to be given to clarify who "frequently sexually assaulted" her.

The Prosecutor is directed to amend the Amended Indictment accordingly.

20. Concerning FWS-75, the Amended Indictment leaves no doubt that FWS-75 and victim A.B were the two women no longer staying in the Brena apartment.29

21. Still in relation to witness FWS-75, the Prosecutor submits that paragraph 11.3 further clarifies the general allegation in paragraph 11.2 that she was "frequently sexually assaulted".30 Further, the "same soldiers" with whom FWS-75 and A.B. stayed in the Pod Masala neighbourhood of Foca, appears to refer to "a group of Serbian soldiers" who allegedly sexually assaulted them in a house near the Hotel Zelengora. As to the identity of the soldiers, the Prosecutor submits that:

Further details of the soldiers are provided in the statement of the witnesses, as already disclosed to the defence. Understandably, the victims were unable to provide the names of the accused’s associates.31

Should the Prosecutor be able to identify the soldiers more closely who allegedly participated in the sexual assaults and rapes, the Defence is entitled to further and more precise particulars being included in the Amended Indictment. For instance, were these soldiers the ones who stayed with FWS-75 and A.B., or were they from elsewhere? Clearly, the identity of the soldiers could assist the Defence in preparing his case.

The Prosecutor is directed to amend the Amended Indictment accordingly.

22. As to paragraph 11.6, the Defence is correct in asserting32 that the identity of the woman sold with FWS-87 should be disclosed. This information may clearly assist the accused in preparing his case.

The Prosecutor is directed to amend the Amended Indictment accordingly.

23. As to the Defence’s assertion33 that the reference in the subtitle to only witnesses FWS-75 and FWS-87 is incomprehensible and contradictory, the Prosecutor is correct in stating that the headings are only a shorthand summary of the succeeding paragraphs in which the material facts upon which the Prosecutor relies are to be found.34 Nothing in this instance turns on the headings.

(c) Particulars on locations

24. The Trial Chamber is of the view that the Defence’s assertion35 that more specific detail as to the exact place of the handing over of witnesses FWS-75, FWS-87 and two other women, referred to in paragraph 11.1 of the Amended Indictment, is correct. Notwithstanding the Prosecutor’s submission that the supporting materials disclose that the handing over took place near the center of Foca close to the Ribarski fish restaurant36, for the reasons explained in paragraph 8 above, the Prosecutor is directed to amend the Amended Indictment accordingly.

(d) The elements of crimes

25. The Defence’s assert37 that, pursuant to the provisions of Rule 96(ii), the Prosecutor must state in the Amended Indictment "in what manner were the victims exposed to violence, force, confinement and physical duress, threats" and, failing that, "an important element of the criminal act is missing".

To that, the Prosecutor replies that that a discussion of the elements of an offence is more appropriate in pre-trial pleadings, such as pre-trial briefs.38 The Defence’s reliance on Rule 96(ii) to argue that the Amended Indictment must state the manner in which the victims were exposed to violence, force, confinement, physical duress and threats, is erroneous.39 The Prosecutor submits that Rule 96(ii) merely prohibits the resort by the accused to consent as a defence if the victim has been subjected to violence or force; the rule does nor set forth the elements of rape nor require that they be specifically pleaded in the Indictment40 The Prosecutor further submits that even if she were required to state in an indictment what force was used against the victims, the Amended Indictment could not be defective. According to the Prosecutor, the coercive circumstances of the victims, which includes their detention, as described in paragraphs 1.4 through 1.7, 11.2, 11.3, 11.4 and 11.5 of the Amended Indictment, constitute a basis for coercion in the sexual assaults as mentioned in Rule 96(ii).

The Trial Chamber is of the view 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. The Amended Indictment as it stands, lacks such particulars.

The Prosecutor is directed to amend the Amended Indictment accordingly.

26. The Defence’s request41 that the "description of the acts in paragraph 11.1 cannot be unspecified" relates to its general request42 that the Prosecutor should "specify and state what violence were the victims subjected to, what duress, physical force or threats". However, the Trial Chamber is of the view that the acts are sufficiently specified for the accused to prepare his case.

(e) Application of law

27. The Defence asserts the following in connection with what it refers to as "the application of law", namely, that rape does not qualify as a violation of the laws or customs of war under Article 3 of the Statute43 and outrages upon personal dignity is not an offence punishable under Article 3 of the Statute44. The Trial Chamber is of the view that these are contentious matters to be resolved at trial.

28. The Defence also complains that the "allegation of the Prosecution can not [ sic] be accepted that the accused Radomir Kovac can be punished twice for one and the same act [ …] ."45 Were this to be a complaint about the charging of different offences based upon the same facts, it would be misconceived. The Trial Chamber is of the view that, as a complaint about the form of the indictment, such accumulation of different offences based upon the same facts is permissible.46 As it has been held, the significance of the accumulation of charges is relevant only to the question of penalty47, which is a matter to be resolved at trial. The Amended Indictment is therefore not defective in this regard.

 

E. Disposition

29. For the foregoing reasons, pursuant to Rule 72 of the Rules, the Trial Chamber decides that the Motion is partly granted with regards to and as set out in paragraphs 17, 18, 19, 21, 22, 24 and 25 of this Decision. The Prosecutor is directed to amend the Amended Indictment accordingly and to file and serve an amended indictment as soon as possible, but no later than Wednesday, 17 November 1999.

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

_______________________________
Judge Mumba
Presiding

Dated this fourth day of November 1999,
At The Hague,
The Netherlands

[ SEAL OF THE TRIBUNAL]


1. Art. 18(4) of the Statute.
2. Art. 19(1) of the Statute.
3. Prosecutor v. Milorad Krnojelac, "Decision on the Defence Preliminary Motion on the Form of the Indictment", Case No. IT-97-25-PT, Trial Chamber II, 24 February 1999, para. 7.
4. Case No. IT-97-25-PT, Trial Chamber II, 24 February 1999, para. 12.
5. See Prosecutor v. Milorad Krnojelac, "Decision on the Defence Preliminary Motion on the Form of the Indictment", Case No. IT-97-25-PT, Trial Chamber II, 24 February 1999, paras. 14 and 15, and the exception mentioned. Also see Prosecutor v. Radoslav Brdanin, "Decision on Motion to Dismiss Indictment", Trial Chamber II, 5 October 1999, para. 13.
6. See Prosecutor v. Kunarac, "Decision on Defence Preliminary Motion on the Form of the Amended Indictment", Trial Chamber II, 21 October 1998, p. 1; and Prosecutor v. Milorad Krnojelac, "Decision on the Defence Preliminary Motion on the Form of the Indictment", Case No. IT-97-25-PT, Trial Chamber II, 24 February 1999, para. 24.
7. Motion, p. 2.
8. Motion, p. 3.
9. Motion, p. 4.
10. Motion, p. 4.
11. Motion, pp. 3-4.
12. Motion, p. 4.
13. Motion, p. 4.
14. Motion, p. 5.
15. Motion, p. 5.
16. Motion, pp. 5-6.
17. Motion, pp. 5-7.
18. Motion, p. 5.
19. Motion, p. 5.
20. Amended Indictment, para. 11.3.
21. Amended Indictment, para. 11.3.
22. Amended Indictment, para. 11.3.
23. Amended Indictment, para. 11.3.
24. Motion, p. 6.
25. Motion, p. 6.
26. Prosecution’s Response, paras. 19 and 20.
27. Prosecution’s Response, para. 20.
28. Motion, p. 6.
29. ee Motion, p. 6, for the defence’s complaint.
30. Prosecution’s Response, para. 24.
31. Prosecution’s Response, para. 24.
32. Motion, p. 7.
33. Motion, pp. 6-7.
34. Prosecution’s Response, para. 22.
35. Motion, p. 6.
36. Prosecution’s Response, para. 27.
37. Motion, pp. 7-8; the same complaint is made in relation to paragraph 11.4 of the Amended Indictment: Motion, p. 7.
38. Prosecution’s Response, para. 29.
39. Prosecution’s Response, para. 30.
40. Prosecution’s Response, para. 30.
41. Motion, p. 6.
42. Motion, p. 9.
43. Motion, p. 8.
44. Motion, pp. 8-9.
45. Motion, p. 8.
46. Prosecutor v. Milorad Krnojelac, "Decision on the Defence Preliminary Motion on the Form of the Indictment", Case No. IT-97-25-PT, Trial Chamber II, 24 February 1999, para. 5.
47. Prosecutor v. Milorad Krnojelac, "Decision on the Defence Preliminary Motion on the Form of the Indictment", Case No. IT-97-25-PT, Trial Chamber II, 24 February 1999, para. 5.