Judicial Supplement 25 - The Prosecutor v. Radoslav Brdjanin and Momir Talic

The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-PT

"Decision on Form of Further Amended Indictment and Prosecution Application to Amend"

26 June 2001
Trial Chamber II (Judges Hunt [Presiding], Mumba and Liu)

Rule 72 of the Rules of Procedure and Evidence - Joint criminal enterprise.

(1) In the case of a participant in the joint criminal enterprise who is charged with a crime committed by another participant which goes beyond the agreed object of that enterprise, the Prosecution is required to establish that:

(a) the crime was a natural and foreseeable consequence of the execution of that enterprise, and
(b) the accused was aware that such a crime was a possible consequence of the execution of the enterprise, and that, with the awareness, he participated in the enterprise.

(2) State of mind of the accused to be established by the Prosecution:

(a) If the crime charged fell within the object of the joint criminal enterprise, the Prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for the crime.
(b) If the crime charged went beyond the object of the joint criminal enterprise, the Prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of the enterprise and that, with such awareness, he participated in the enterprise.

(3) The Prosecution must prove that there was an agreement (or a common purpose) between the person who personally perpetrated the further crime charged and the person charged with that crime to commit at least a particular crime, so that it can then be determined whether the further crime charged was a natural and foreseeable consequence of executing that agreed crime.

(4) Burden of proof: if the accused wishes to raise an issue as to the voluntary nature of his participation in the joint criminal enterprise pleaded and if it is a relevant issue in the case, he must point to or elicit evidence at the trial from which it could be inferred that there is at least a reasonable possibility that his participation was not voluntary. Only then does the Prosecution bear the onus of establishing that his action was voluntary. The legal onus in relation to the issue however remains at all times on the Prosecution.

Procedural Background

On 5 April 2001, Momir Talic filed a Preliminary Motion pursuant to Rule 72 of the Rules of Procedure1 in which he alleged that the form of the further amended Indictment of 12 March 2001 was defective.
A Status Conference took place on 18 May 2001, at which the validity of how common purpose had been pleaded was discussed. The Prosecution sought leave to amend the Indictment further in respect of the allegation of common purpose. Momir Talic objected to the proposed amendment on the basis that it does not correct the deficiencies in the common purpose pleaded in the current indictment and that the proposed amendment is itself defective in form.

The Reasoning

The alleged responsibility of the accused

The Trial Chamber proposed to strike the word "committed" from the further amended Indictment, "which is incorporated in each of the counts, so that any suggestion that either of the accused 'committed' the crimes (in the specific sense of personally perpetrating the offences)2 is presently removed." It added that if the Prosecution "does obtain evidence which is capable of supporting a conviction of either of the accused on the basis that he 'committed' any of these crimes (in that same specific sense)", it may seek to amend the Indictment to reinstate that allegation.

Common purpose

The Trial Chamber reiterated the Judgement of the Appeals Chamber on 15 July 1999 in The Prosecutor v. Dusko Tadic3 and preferred to describe a common purpose case as being part of a "joint criminal enterprise"4. The Trial Chamber proposed to deal with the first and second categories, which are not substantially different, together as the basic form of joint criminal enterprise and with the third category as an extended form of joint criminal enterprise.

In the case of a participant in the joint criminal enterprise charged with a crime committed by another participant which goes beyond the agreed object of that enterprise, the Trial Chamber interpreted the above-mentioned Judgement as requiring the Prosecution to establish that:

(1) "the crime was a natural and foreseeable consequence of the execution of that enterprise, and"

(2) "the accused was aware that such a crime was a possible consequence of the execution of that enterprise, and that, with that awareness, he participated in that enterprise."

The Trial Chamber emphasised that "[t]he first is an objective element of the crime", and does not depend on "the state of mind on the part of the accused" whereas "[t]he second is the subjective state of mind on the part of the accused" which the Prosecution must establish. It reiterated that none of the various formulations in the above-mentioned Judgement requires the Prosecution "in such a case to establish that the accused intended such further crime to be committed, or that he shared with that other participant the state of mind required for that further crime." The Trial Chamber was therefore satisfied that the Prosecution "does not have to do so."

It pointed out that the state of mind of the accused to be established by the Prosecution "differs according to whether the crime charged:

(a) was within the object of the joint criminal enterprise, or

(b) went beyond the object of that enterprise, but was nevertheless a natural and foreseeable consequence of that enterprise."

The Trial Chamber added that in the first case, the Prosecution "must establish that the accused shared with the person who personally perpetrated the crime the state of mind" required for the crime. In the second case, the Prosecution "needs to establish only that the accused was aware that the further crime was a possible consequence in the execution" of the enterprise and that, with such awareness, he participated in the enterprise.

The Trial Chamber emphasised that "[t]he criminal object of the enterprise must be clearly identified" and considered "that, where there could be a number of different criminal objects of a joint criminal enterprise, it is not necessary for the Prosecution to prove that every participant agreed to every one of those crimes being committed. But it is necessary for the Prosecution to prove that, between the person who personally perpetrated the further crime charged and the person charged with that crime, there was an agreement (or a common purpose) to commit at least a particular crime, so that it can then be determined whether the further crime charged was a natural and foreseeable consequence of executing that agreed crime." The Trial Chamber added that without such proof, it could not "be held that the accused was a member of a joint criminal enterprise together with the person who committed that further crime charged."

Burden of proof

If the accused "wishes to raise an issue as to the voluntary nature of his participation in the joint criminal enterprise pleaded, and if that is a relevant issue in the case, he must at the trial point to or elicit evidence from which it could be inferred that there is at least a reasonable possibility that his participation was not voluntary." The Trial Chamber pointed out that only then does the Prosecution "bear the onus of establishing that his action was indeed voluntary." It added that "[t]his is not to suggest that the accused bears some legal onus in relation to the issue", which remains at all times on the Prosecution. The Trial Chamber emphasised that "[h]is onus is merely an evidentiary one - to point to or to elicit evidence which raises the particular issue", and which places an onus on the Prosecution to establish its case on that issue".

The Decision

The Trial Chamber ordered inter alia that:

(1) the word "committed" be struck out of the further amended Indictment;

(2) (a) the Prosecution plead its case expressly as to whether each of the crimes charged is alleged to have fallen within the object of the joint criminal enterprise which has been pleaded in the further amended Indictment or to have gone beyond that object;

(b) if any of the crimes charged are alleged to fall within that object, the Prosecution plead that the accused had the state of mind required for that crime;

(c) if all of the crimes charged are alleged to go beyond that object, the Prosecution identify in the Indictment the agreed criminal object of the joint criminal enterprise on which it relies.

Latest Development

On 2 July 2001, Trial Chamber II rendered its Decision Varying Decision on Form of Further Amended Indictment. The Trial Chamber stated that an agreement had been reached which met concerns based on the very real problems which have arisen, by which the Prosecution had inserted, after the reference to "committed" within the meaning of Article 7(1) of the Statute5, the following statement:

"By using the word 'committed' in this indictment, the Prosecutor does not intend to suggest that any of the accused physically perpetrated any of the crimes charged personally."

The Trial Chamber permitted the word "committed" to remain, "provided that it is accompanied by a statement in the terms already stated".

The Trial Chamber accordingly varied the Order in the Decision on the Form of the Further Amended Indictment and ordered that:

(1) the Prosecution add the above-mentioned statement to the further amended Indictment;

(2) in the event that the Prosecution does not do so, the word "committed" be struck out.

________________________________________
1. "(A) Preliminary motions, being motions which
(i) challenge jurisdiction;
(ii) allege defects in the form of the indictment;
(iii) seek the severance of counts joined in one indictment under Rule 49 or seek separate trials under Rule 82 (B); or
(iv) raise objections based on the refusal of a request for assignment of counsel made under Rule 45 (C) shall be in writing and be brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i) and shall be disposed of not later than sixty days after they were filed and before the commencement of the opening statements provided for in Rule 84.
(B) Decisions on preliminary motions are without interlocutory appeal save
(i) in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
(ii) in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber.
(C) Appeals under Sub-rule (B)(i) shall be filed within fifteen days and applications for leave to appeal under Sub-rule (B)(ii) shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless
(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision."
2. See also The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001, in which the Trial Chamber considered that the word "committed" is used in Article 7(1) of the Statute in the sense that the accused "personally did the acts" (para. 11).
3. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6).
4. The Prosecutor v. Milorad Krnojelac ("Foca - KP-Dom Camp"), Case No. IT-97-25-PT, Trial Chamber II, Decision on Form of Second Amended Indictment, 11 May 2000 (summarised and analysed in Judicial Supplement No. 15).
5. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."(Emphasis added)