IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Order of:
8 November 1999
PROSECUTOR
v.
MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC
___________________________________________________________
DECISION ON DEFENCE OBJECTIONS TO THE AMENDED INDICTMENT
____________________________________________________________
The Office of the Prosecutor:
Mr. Grant Niemann
Mr. Michael Keegan
Mr. Kapila Waidyaratne
Counsel for the Accused:
Mr. Krstan Simic, for Miroslav Kvocka
Mr. Zarko Nikolic, for Milojica Kos
Mr. Toma Fila, for Mladjo Radic
Mr. Simo Tosic, for Zoran Zigic
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"),
BEING SEISED of a "Defence Submission in regard of the Amended Indictment filed on 31 May 1999", filed by Mladjo Radic on 17 June 1999, and of a "Defence Submission to the changes reflected in the Amended Indictment", filed by Zoran Zigic on the same day, and of a "Response to Defence Submissions regarding changes reflected in the Amended Indictment", filed on 30 June 1999 by the Office of the Prosecutor ("Prosecution"),
NOTING the written submissions of the parties and the opportunity provided to them to be heard at the hearing held on 27 September 1999 ("hearing"),
NOTING that the parties elected not to present further oral arguments at the hearing,
NOTING the "Decision on Defence preliminary motions on the form of the indictment" issued by the Trial Chamber on 12 April 1999 ("Decision"), in which the Trial Chamber directed the Prosecution to add particulars to the Amended Indictment against the accused dated 12 June 1998 ("former Indictment"),
NOTING the Amended Indictment submitted by the Prosecution on 31 May 1999 ("Amended Indictment"), pursuant to the Decision, together with the confidential "Schedules of Additional Particulars to the Submission of Amended Indictment" ("Schedules A-D"), which amended the former Indictment,
NOTING the Order Granting Request for Extension of Time, issued by the Trial Chamber on 2 July1999, which granted Milojica Kos an extension of time in which to file submissions relating to the Amended Indictment,
NOTING that the Defence for Milojica Kos, however, did not file any submissions as to the Amended Indictment, but stated in its request for extension of time, filed on 18 June 1999, that the Amended Indictment contains "major differences" compared to the former Indictment,
NOTING that the Defence for Mladjo Radic submits that the Amended Indictment does not comply with the Decision for the following reasons:
(1) the Amended Indictment contains two new factual allegations in support of counts 14-17 and references to witnesses E, J, K and L, which constitute new charges against the accused Mladjo Radic,
(2) the "new crimes" included in the Amended Indictment do not constitute "serious violations of international humanitarian law" within the meaning of Article 1 of the Statute of the International Tribunal ("Statute"),
NOTING that the Defence for Zoran Zigic submits generally that the allegations in the Amended Indictment are still too general and not precise enough, and submits the following:
(1) in relation to the whole Amended Indictment:
(a) the word "detainee" used in the previous Indictment has been replaced by the word "prisoner",
(b) the Prosecution did not provide enough particulars as to the date (i.e. exact date and time) when the alleged offences were committed by the accused, in that the phrase "about between" was only replaced by "between",
(2) in relation to counts 1-3:
(a) as to paragraphs 23-24 (a-e) of the Amended Indictment: Schedule A-D in relation to counts 1 to 3 do not specify when the alleged acts took place, what the alleged acts are, which weapon or tools were used by the accused, how the acts were committed, who the victims were, and as to the other perpetrators referred to as a "group of Serbs", does not identify their military unit and their commander,
(b) in respect of paragraph 29, the Amended Indictment is not specific enough as to the participation of the accused in the alleged offences,
(3) in relation to counts 6-7 (paragraph 34 (a-d)), the Amended Indictment is not specific enough:
(a) as to the date when the alleged offences were committed because it contains the phrases "late June 1992", "mid July 1992", and "around 20 July 1992",
(b) as to the role and connection with the accused of certain individuals mentioned (Dusan Knezevic, Predrag Banovic, "Spilja" Mesic, and Drago Tokmadzic), further the name of the last person is different from the name referred to in the previous Indictment,
(c) as to the locations,
(d) as to the other perpetrators, in particular whenever the phrase "Serb forces" is used, the name of the military unit and of the commander should also be specified,
(e) the name of each victim allegedly shot in Room 3 should be mentioned,
(4) in relation to counts 11-13 (paragraph 38 (a-h)): the Amended Indictment does not contain enough details as to the date when the alleged offences were committed, and as to the manner in which they were perpetrated,
NOTING that the Prosecution argues that the Amended Indictment complies with the Decision, and submits the following:
(1) the Amended Indictment does not contain new charges against the accused, as it contains the same charges and alleges the same theories of criminal liability against the accused present in the former Indictment,
(2) the Amended Indictment and its supporting Schedules provide more detail than previously included, such as the name of additional victims and additional participants in the offences, the manner in which some of the crimes occurred and further information pertaining to the specific criminal acts of the accused,
NOTING the "Order on the Prosecutors motion to protect victims and witnesses" issued by the Trial Chamber on 12 December 1998, which continues to be in full force,
CONSIDERING that the Trial Chamber in its Decision directed the Prosecution to:
(a) delete the word "about" in the phrase "between about" whenever it appeared in the Indictment,
(b) provide information that would allow for the identification of other participants in the crimes alleged against Miroslav Kvocka,
(c) identify, to the extent possible, the names of the victims in the crimes alleged against all four accused, and list, to the extent possible, whenever the term "including" appeared in the Indictment, additional names of victims of the crimes alleged,
(d) identify, to the extent possible, the manner in which the crimes alleged against all four accused were committed,
(e) provide more information as to the specific acts of the accused, Mladjo Radic and Miroslav Kvocka that would establish their criminal responsibility under Article 7(1) and 7(3) of the Statute,
CONSIDERING that the amendments brought by the Prosecution in the Amended Indictment, relevant to the issue at hand, can be described as follows:
(i) in relation to dates when the alleged offences were committed, the word "about" in the phrase "between about" or "from about" has been deleted whenever it appeared in the former Indictment1,
(ii) in relation to the identity of the names of the victims in the crimes alleged against all four accused, the Prosecution has provided comprehensive lists of victims in the confidential Schedules A-D attached to the Amended Indictment, in respect of each group of counts for each accused2,
(iii) as to the manner in which the crimes against all four accused were committed, the Amended Indictment3 and Schedules A-D provide more particulars in this regard in respect of each named victim,
(iv) in relation to the specific acts of Mladjo Radic4 that would establish his criminal responsibility under Article 7(1) and 7(3) of the Statute, the Amended Indictment provides more details as to the alleged conduct of the accused and as to his position of authority in paragraphs 27 and 285 of the Amended Indictment in respect of counts 1-36,
CONSIDERING that the Prosecution further amended the former Indictment to ensure that the level of detail provided in respect of the allegations against each accused is consistent,
CONSIDERING that the Trial Chamber, as to the identity of victims in general, held in its Decision that the massive scale of the crimes alleged before the International Tribunal does not allow for specific naming of all the victims of the crimes alleged,
CONSIDERING that Mladjo Radics contention that the Amended Indictment contains new charges is without merit, as the reference to additional alleged victims of the offences alleged against the accused, where the term "including" was used in the former Indictment, falls clearly within the directions given by the Trial Chamber, in its Decision, to the Prosecution,
CONSIDERING therefore that it is not necessary to address the second argument presented by Mladjo Radic as the Trial Chamber finds that the Amended Indictment does not contain "new crimes",
CONSIDERING that, as correctly submitted by the Defence for Zoran Zigic, the Prosecution substituted the word "prisoner" for the word "detainee" in the Amended Indictment whenever it appeared in the former Indictment, without having been directed to do so, but that any argument in this respect will be a matter for trial,
CONSIDERING that Zoran Zigics contention that the Prosecution did not provide enough particulars as to the dates when the alleged crimes were committed is without merit as the Prosecution was only directed to delete the word "about", and was not directed to provide the exact date and time of the alleged offences,
CONSIDERING further that Schedule D in respect of Zoran Zigic provides additional particulars as to the dates of the alleged offences in respect of individual acts against victims,
CONSIDERING that, Zoran Zigics arguments in respect of counts 1-3 are without foundation, as the Amended Indictment provides the additional particulars requested by the Trial Chamber in its Decision, and that the Prosecution was not directed to identify the military unit to which the other alleged perpetrators belonged, nor the commanders of these units7,
CONSIDERING that the Amended Indictment, in respect of counts 1-3, provides additional particulars as to the alleged participation of the accused Zoran Zigic under Article 7(1) of the Statute, as directed by the Trial Chamber,
CONSIDERING that Zoran Zigics arguments in relation to counts 6-7 are also without foundation for the following reasons: (1) the Prosecution was not directed to amend the former Indictment in respect of the dates alleged in this group of counts; (2) as to the identity of the other participants in the crimes alleged against the accused8, the Prosecution was not directed to clarify the role and connection with the accused of these other alleged perpetrators, which is a matter for evidence at trial; (3) the difference in spelling of the name of Drago Tokmadzic is a matter for trial,
CONSIDERING that in relation to counts 11-13, Zoran Zigics submissions are without merit as paragraph 38 of the Amended Indictment provides additional particulars, in varying degrees of detail, as to how the offences alleged against the accused were committed,
CONSIDERING that the level of detail of the information contained in the Amended Indictment provides the accused with sufficient material to enable them to prepare their defence adequately,
CONSIDERING therefore that the Amended Indictment complies with the Trial Chambers Decision, and does not go beyond what was permitted by the Trial Chamber,
FOR THE FOREGOING REASONS
PURSUANT TO Rule 73 of the Rules of Procedure and Evidence of the International Tribunal,
HEREBY DISMISSES the Defences objections to the Amended Indictment.
Done in both English and French, the English text being authoritative.
__________________________
Richard May
Dated this eighth day of November 1999 Presiding Judge
At The Hague
The Netherlands
[Seal of the Tribunal]