TIHOMIR BLASKIC

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DECISION OF TRIAL CHAMBER I
ON THE DEFENCE MOTION TO DISMISS

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Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman

TRIAL CHAMBER I 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,

NOTING the Defence Motion to Dismiss filed under seal on 10 August 1998 requesting the dismissal of several counts in the indictment (hereinafter "the Motion),

HAVING HEARD the oral pleadings of the parties before Trial Chamber I of the Tribunal (hereinafter "the Trial Chamber) at the status conference of 24 August 1998,

NOTING the response of the Prosecutor to the Motion dated 27 August 1998 and its corrigendum dated 28 August 1998 (hereinafter "the Response"),

NOTING the reply of the Defence dated 31 August 1998,

PURSUANT to Rules 54 and 98 bis of the Rules of Procedure and Evidence (hereinafter "the Rules"),

CONSIDERING that, in its Motion, the Defence alleged that "as a matter of law" the Prosecution failed to produce sufficient evidence "to make out a case against the accused",

CONSIDERING that, more specifically, the Defence asserted that the Prosecution has not provided evidence in respect of certain legal elements on which the offences indicated in Articles 2, 3, 5, and 7 of the Statute of the Tribunal are based, such articles being mentioned in the indictment,

CONSIDERING that the Defence is, in fact, requesting the dismissal of fifteen of the twenty counts in the indictment and is seeking to have the scope of the five remaining counts considerably limited; that the Defence inter alia is requesting the dismissal of all the charges relating to the existence of an international armed conflict, those concerning the direct responsibility of the accused, and the allegations in respect of the use of human shields and interference with humanitarian assistance,

CONSIDERING that the Defence is of the opinion that, in the interests of justice and for reasons relating to the time period required for the preparation of its case, and thus to the extension of the time the accused remains in detention, as well as in the interests of a fair and expeditious trial, the counts and allegations challenged in its Motion should therefore be deleted from the indictment,

CONSIDERING that, in her Response, the Prosecutor asserted that the Defence has essentially submitted a legal brief requesting that the Trial Chamber render a decision on questions of law and that such a brief is inappropriate in a motion to dismiss certain counts since such a motion should deal only with evidence relating to the acts ascribed to the accused,

CONSIDERING that the Prosecutor, responding nonetheless point by point to the Defence arguments, asserts that she has presented sufficient evidence in respect of the acts; that, as regards the questions of law relating to Articles 2, 3, 5 and 7 of the Statute of Tribunal, the Prosecutor considers that she has supported her argument although her interpretation differs from that of the Defence,

CONSIDERING that the Prosecutor, moreover, maintained that the elements of the count relating to interference with humanitarian assistance are relevant and have been sufficiently demonstrated and that the Defence arguments on that point should not have appeared in the Motion because they represent, in fact, only an objection to the evidence presented, an objection which should have been raised at the time the element was presented and not in a motion requesting the dismissal of some of the counts,

CONSIDERING that, in its Reply, the Defence confirms all the points of the arguments developed in its Motion, while emphasising, in particular, that, in its opinion, the Prosecution has confused the elements which constitute offences covered by Article 7(1) of the Statute with those covered by Article 7(3),

CONSIDERING that the Defence bases its Motion entitled "Motion to Dismiss" on Rule 54 which confers on the Trial Chamber a general power to issue "orders (...) for the purposes of the (...) conduct of the trial"; that it refers inter alia to previous decisions of the Tribunal taken in the cases The Prosecutor v. Dusko Tadic (IT-94-1-T; 13 September 1996) and The Prosecutor v. Zejnil Delalic et al (IT-96-21-T; 18 March 1998) because it does not wish to base its motion on the new Rule 98 bis which states that "if, after the close of the case for the prosecution, the Trial Chamber finds that the evidence is insufficient to sustain a conviction on one or more offences charged in the indictment, the Trial Chamber, on motion of an accused or proprio motu, shall order the entry of judgement of acquittal on that or those charges",

CONSIDERING, however, that it is appropriate to note that those decisions were taken specifically because the current Rule 98 bis did not exist and that, to remedy the fact that the Rules stated nothing in that respect, the Judges based their decision on the general procedural scope established in Rule 54 ,

CONSIDERING that a motion, like the one submitted to the Judges in the present case seeking the dismissal of some of the counts in the indictment against Tihomir Blaskic, amounts to a request for leave to amend the indictment, which the Defence, not wishing to base itself on the new Rule 98 bis, recognises explicitly (see footnote 1 of the Motion),

CONSIDERING that although it is true that Rule 54 grants to the Trial Chamber a general power to take decisions not only in respect of the preparation of the trial but also of its conduct, it is no less true that, for its review of the present motion and in accordance with the principle of law speciala derogant generalibus, the Trial Chamber is now guided by Rule 98 bis , "Motion for Judgement of Acquittal",

CONSIDERING that, when reading Rule 98 bis, it is appropriate to note that, should the evidence presented be insufficient to justify a conviction for one or several of the crimes ascribed in the indictment, the Trial Chamber, either proprio motu or at the request of the accused, may render a judgement of acquittal for that or those crimes; that this means that the Trial Chamber must grant the Motion if it is convinced that, at this stage of the proceedings, the Prosecution has not provided sufficient evidence to justify immediately a judgement of conviction based on the various counts invoked by counsel for the accused,

CONSIDERING that the Trial Chamber notes that the Prosecutor does not object to the application of Rule 54; that, furthermore, it considers it still possible to apply the rule in the case in point, the only question being the determination of the applicable standard,

CONSIDERING that the Trial Chamber is of the opinion that, at this stage of the proceedings when the Prosecution has completed its case, the standard used to determine the relevance of the Defence Motion must satisfy the level required either by the only text covering the Motion presented to it, that is, Rule 98 bis, or by the decisions rendered specifically to respond to this type of motion; that it follows therefrom that the required standard is that the evidence presented by the Prosecution be insufficient to justify from this time forth a conviction for all or part of the counts concerned,

CONSIDERING that, under those conditions, the Trial Chamber could grant the request of the accused and order the dismissal of some of the counts of the indictment solely on the basis of Rule 54 , only if it deemed that the Prosecution has so clearly failed to satisfy its obligation as the prosecuting party, that, commencing with this stage of the proceedings, it is no longer even necessary to review the Defence evidence regarding the counts covered in the Motion,

CONSIDERING that such a standard severely narrows the scope of Rule 54 ,

CONSIDERING that, on these legal foundations, based on a strict application of the spirit and letter of the Rules , the Trial Chamber limits the review of the Motion:

- in fact: to the mere hypothesis that the Prosecutor omitted to provide the proof for one of its counts;

- in law: to the mere hypothesis that the Prosecution failed to show a serious prima facie case in support of its claims,

CONSIDERING, that, after having applied the above-defined standard to the Motion, the Trial Chamber notes that no count or part of such count may be dismissed from the trial at this stage,

REJECTS the Motion unanimously,

Done this third day of September 1998

At The Hague

The Netherlands

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

(Signed)

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Judge Claude Jorda

Presiding Judge, Trial Chamber I

[Seal of the Tribunal]