IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Rustam S. Sidhwa
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 26 June 1996
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE ACCUSED MUCICS MOTION FOR PARTICULARS
The Office of the Prosecutor:
Mr. Eric Ostberg
Ms. Teresa McHenry
Counsel for the Accused:
Mr. Robert Rhodes, QC, for Zdravko Mucic
On 24 April 1996, a motion was filed on behalf of the accused, Zdravko Mucic,pursuant to Rules 72 and 73 of the International Tribunals Rules of Procedure and Evidence ("Rules") requesting this Trial Chamber to order the Prosecution to provide full particulars of the indictment in accordance with questions set out in an attached schedule. The Prosecution filed a written opposition to the Defence motion on 8 May 1996.
Oral argument on the motion was heard following a status conference on 14 May 1996, and the decision on it was reserved to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
1. The indictment against Zdravko Mucic alleges that he was the commander of the Celebici camp in central Bosnia, where Bosnian Serb civilians were detained. The indictment, which includes charges against three other persons, consists of 49 counts. Zdravko Mucic himself is charged with the following counts: 13, 14, 33 - 35, 38, 39 and 44 - 49. He is charged with command responsibility for specific instances of killing, torture, rape and for acts causing great suffering or serious bodily injury. In addition, the Prosecution asserts that Zdravko Mucic directly participated in the creation of inhumane conditions, the unlawful confinement of civilians and the plunder of private property at the camp.
2. The Defence contends that the indictment is not sufficiently precise. It seeks particulars with regard to the allegations of command responsibility on the part of the accused and further details of certain acts allegedly undertaken by the accused and his subordinates.
3. The Prosecution opposes the Defence motion on the ground that the indictment against Zdravko Mucic fully complies with the requirements of the Statute of the International Tribunal ("Statute") and its Rules. The Prosecution is of the view that the indictment provides the accused with sufficient notice of the nature of the crimes with which he is charged and the facts supporting those charges and that any further details necessary to prepare his defence can be found in the supporting materials.
4. Rules 72 and 73 form the basis of the Defence motion. Rule 72 authorises the filing of preliminary motions by either party and Rule 73 sets out a non-exhaustive list of the motions that may be made by an accused. The latter provides that the accused may, inter alia, make "objections based on defects in the form of the indictment." Rule 73(A)(ii). Zdravko Mucics request for particulars appears to lie somewhere between an objection, under Rule 73(A)(ii), that the indictment is too vague, and a request for further discovery.
5. The International Tribunal has had occasion to consider claims relating to the vagueness of an indictment in other cases. See Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Defence Motion on the Form of the Indictment (T. Ch. II, 14 November 1995) ("Tadic Indictment Decision"); Prosecutor v. \jukic, Case No. IT-96-20-T, Decision on Preliminary Motions of the Accused (T. Ch. I, 26 April 1996). These cases have looked to the relevant provisions of the International Tribunals Statute and Rules for guidance on the issue. Article 18 of the Statute requires the Prosecutor, once he determines that a prima facie case against an accused exists, to prepare "an indictment containing a concise statement of the facts and the crime of crimes with which the accused is charged under the Statute." Article 21, which sets out the rights of the accused, provides that the accused is entitled "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him". In addition, Rule 47(B), following the language of Article 18, instructs that 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."
6. When tested by the standard set out in previous cases, the indictment against Zdravko Mucic is not vague. The command responsibility charges against the accused (counts 13, 14, 33-35, 38, 39, 44, 45) are based on particular actions by his subordinates. The place, the approximate date and the names of the alleged victims are provided. On the issue of the involvement of the accused, the Prosecution asserts that Zdravko Mucic was the commander of the Celebici camp and therefore had command responsibility for the acts alleged. The direct responsibility charges (counts 46 - 49) relate to a prolonged course of conduct --- ie. the inhumane conditions at the camp, the unlawful confinement of civilians and the plunder of property. The factual allegations underlying these charges indicate the approximate time period during which the conduct occurred, describe the underlying conduct with specificity and provide some information about the participation of the accused and others. In sum, each count of the indictment against Zdravko Mucic gives him warning of the nature of the crimes with which he is charged and sets out the factual basis of the charges. Thus, to the extent that the accuseds motion seeks to challenge the indictment on vagueness grounds, it is rejected.
7. Although the indictment is not vague, the Defence may be entitled to further particulars regarding the offences charged against Zdravko Mucic . The device of a motion for particulars is well known in several common law jurisdictions and has been specifically endorsed by this Chamber in its Decision on the form of the indictment in the Tadic case. See Tadic Indictment Decision ¶ 8. The statutory basis of the accuseds right to particulars is found in Article 21(2) of the International Tribunals Statute, which provides that the accused has the right to "a fair and public hearing" and in Article 21(4) (b) which gives the accused the right to "adequate time and facilities for the preparation of his defence".
8. Before an accused can make a motion for particulars, he must first request the Prosecution to provide such particulars. Such a request must "specify the counts in question, the respect in which it is said that the material already in the possession of the Defence is inadequate and the particulars necessary to remedy that inadequacy." Tadic Indictment Decision¶ 8. The motion itself must "state with particularity the respect in which a specified count, read in the light of the paragraph which precedes it, is said to require any and what further particulars." Id. The record does not indicate that the Prosecution refused a Defence request for particulars. The Trial Chamber can, however, assume that this requirements has been satisfied because Zdvrako Mucic has in fact filed a motion for particulars and the Prosecution has opposed it. The motion filed by the Defence indicated the reasons why particulars were needed with respect to specific allegations. Furthermore, during the oral argument of this motion, the Defence indicated that it had surveyed the documents provided by the Prosecution and was still of the view that it was entitled to particulars on a number of the matters raised. The requirements set out in the Decision on the form of the indictment in the Tadic case can therefore be regarded as fulfilled and the Trial Chamber can proceed to a consideration of the Defence request.
9. The essential standard for deciding on a motion for particulars is whether such particulars are necessary in order for the accused to prepare his defence and to avoid prejudicial surprise. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 823 (2d ed. 1992); 11(2) Halburys Laws of England ¶ 923 (1990). A request for particulars is not, and may not be used as, a device to obtain discovery of evidentiary matter. The request may be directed only to the sufficiency of the indictment and is not a substitute for pre-trial discovery. The amount of pre-trial discovery available to the defence is, however, relevant in deciding whether to grant such a request. LaFave & Israel, supra, at 823-824. The availability of discovery provides the defence with protection against prejudicial surprise at trial and gives it adequate information for preparing a meaningful defence.
10. The International Tribunals Rules allow the defence to obtain extensive pre-trial discovery. Rule 66 requires the Prosecutor to "make available to the defence, as soon as practicable after the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused or from prosecution witnesses" and to "permit the defence to inpect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused". In addition, Rule 67 request that "[aCs early as reasonably practicable and in any event prior to the commencement of the trial," the Prosecutor must "notify the defence of the names of the witnesses that he intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice". This Rule also imposes an obligation to notify the defence of newly discovered "evidence or material which should have been produced earlier pursuant to the Rules". Finally, pursuant to Rule 68, the Prosecution must disclose exculpatory evidence to the defence as soon as practicable. The comprehensive scope of pre-trial discovery available to the defence under the Rules weighs against the accuseds request.
11. Turning to the specific requests, the Trial Chamber notes that the Defence seeks particulars regarding three categories of allegations: (1) allegations of the accuseds knowledge with respect to certain acts by his subordinates, as set out in paragraphs 7, 22, 29, 31, 34, 35, 37 of the indictment; (2) allegations of the accuseds failure to take necessary and reasonable measures to prevent or punish certain acts by his subordinates, as set out in paragraphs 7, 22,29,31,34,35,36,37 of the indictment; and (3) insufficient precision in the allegation of certain acts by the accused and his subordinates, as set out in paragraphs 31, 33, 34, 35, 37 of the indictment.
12. With respect to the first category, the Defence asks that the Prosecution specify the evidence on which it relies in alleging that the accused can be regarded as knowing or having reason to know of the acts of his subordinates. The indictment asserts that Zdravko Mucic was the commander of the Celebici camp. Zdravko Mucics alleged position as camp commander can be regarded -- at this stage of the proceedings -- as sufficient to suggest that he knew or should have known of the actions of his subordinates. In addition, the Prosecution has indicated that the witness statements provided to the Defence contain further evidence of Zdravko Mucics knowledge of the acts of his subordinates. The Trial Chamber therefore finds that the Prosecution has provided sufficiently particular information with respect to this category.
13. The second category of allegations of which the Defence complains are those asserting that the accused failed to take the measures necessary to fulfil his duty as camp commander. The Defence would like the Prosecution to specify the actions that it believes the accused was obligated to take. This request is more a search for the Prosecutions view of the applicable law than a solicitation of particular facts in the Prosecutions possession. The Trial Chamber has already held that the indictment is not vague and thereby indicated that it sufficiently states the legal elements of the Prosecutors case. Further information in this regard is not required.
14. The remainder of the Defence complaints can be described as assertions of insufficient precision in the allegation of acts. The Defence has asked for specific information with regard to paragraphs 31 and 34 of the indictment, in which the Prosecution alleges that the accused committed certain types of acts and follows that allegation with a non-exhaustive list. For example, paragraph 31 of the indictment alleges that the accused has command responsibility for "acts causing great suffering committed in Celebici camp, including the severe beatings of Mirko KULJANIN and Dragan KULJANIN, the placing of a burning fuse cord around the genital areas of Vukasin MRKAJIC and Dusko BEN\O, and including those acts causing great suffering or serious injury described above in paragraph thirty". The Defence objects to the use of the word "including" because it gives the Prosecutor leeway to prove acts in addition to the ones listed in the indictment. Because the acts enumerated in the list -- if proven -- would be sufficient to make out the crime alleged, we do not believe that the Defence is entitled to greater specificity. To the extent that the Prosecutor attempts to prove other incidents that may be classified as "acts causing great suffering". the accused will be protected from surprise at trial by his ability to obtain discovery of materials in the Prosecutions possession and the Proseuctions obligation to provide the Defence with a witness list prior to trial.
15. Finally, the Defence requests particulars relating to Zdravko Mucics alleged direct participation in the commission of offences. He is accused of directly participating in the creation of inhumane conditions and in the unlawful confinement of civilians at the camp and in plundering the property of detainees. The Defence asks for information on how exactly the accused was involved in the creation of the conditions in the camp and in plunder. Because the Trial Chamber believes that allegations of direct participation are sufficiently clear to allow the Defence to prepare for trial, this request is also denied.
16. The Defence has also asked the Prosection to identify the detainees on whom an electrical device was allegedly used and the number of occasions on which certain alleged actions occurred. Paragraph 33 of the indictment specifies two of the detainees on whom an electrical device was allegedly used. If proved at trial, this would be sufficient to convict the accused of the offence alleged. Therefore, the Prosecutor is not required to provide more particulars with respect to paragraph 33. In paragraph 34 of the indictment, the Prosecution asserts that Zdravko Mucic has responsibility as a superior for inhumane acts committed in the camp, "including forcing persons to commit fellatio with each other [andC forcing a father and son to slap each other repeatedly, and including those acts described above in paragraph thirty-three." Zdravko Mucic could be liable as a commander for inhumane acts based on the incidents set out in paragraph 33, thus further particulars about the acts listed in paragraph 34 are unnecessary. Moreover, the number of times the acts listed in paragraph 34 occurred is irrelevant because one commission would be sufficient for the imposition of criminal liability. Thus, the request for particulars relative to paragraph 34 is denied.
FOR THE FOREGOING REASONS, THE TRIAL CHAMBER, PURSUANT TO RULE 72,
HEREBY UNANIMOUSLY DENIES in all respects the Defence motion for particulars.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this twenty-sixth day of June 1996
At The Hague
[ Seal of the Tribunal]