IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mr Hans Holthuis
2 July 2001
Radoslav BRÐANIN & Momir TALIC
DECISION VARYING DECISION ON FORM OF FURTHER AMENDED INDICTMENT
The Office of the Prosecutor:
Ms Joanna Korner
Mr Andrew Cayley
Mr Nicolas Koumjian
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1. There has been some debate during the course of these proceedings about the function performed by the word "committed" in Article 7.1 of the Tribunals Statute. It is unnecessary to rehearse the details of that debate here. The debate culminated in the order made in the recent decision on the form of the indictment, where the word "committed" was struck out from par 33 of the further amended indictment.1 The reasons for that order are expressed in Section 2 of the Decision on the Form of the Indictment.2 It is sufficient to say here that very real problems arose from the insistence by the prosecution upon keeping the word in the indictment, notwithstanding that it has nothing to support an allegation that the accused physically perpetrated the crimes charged personally, and the difficulties which its retention in the indictment would create as a result of the chance introduction of evidence which is not presently available and of which the accused has had no notice.
2. Since that decision was given, submissions from a different prosecution team in a different case included an argument in relation to the function performed by the word "committed" in Article 7.1, one which had not been put by the prosecution in the present case. That was also a case in which the prosecution had nothing to support an allegation that the accused physically perpetrated the crimes charged personally. This new argument was said to be based upon a principle of civil law, according to which (it is suggested) a "perpetrator" is eligible for a higher sentence than a non-"perpetrator". Whilst there may be some doubt as to whether any such principle is applicable in this Tribunal, it was nevertheless thought to be a sufficiently arguable basis for the retention of the word "committed" in the indictment, to include as "perpetrators" persons other than those who physically perpetrated the crime personally. That issue is not a suitable one to be resolved in an objection to the form of an indictment. Agreement was reached which met concerns based upon the very real problems which have arisen in the present case, by which the prosecution inserted, after the reference to "committed" in the collocation of Article 7.1, 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.
3. In the event that the prosecution in the present case wishes to keep open any argument relating to such an identification of the accused as a "perpetrator", and without needing to rule upon the validity of that argument, the Trial Chamber is prepared to permit the word "committed" to remain in the present case, provided that it is accompanied by a statement in the terms already stated, as varied according to the number of accused charged.
5. Accordingly, the first order made in the Decision on the Form of the Indictment3 is varied, so as to read:
(1) The prosecution is to add to par 33 of the further amended indictment the statement:
By using the word "committed" in this indictment, the Prosecutor does not intend to suggest that either of the accused physically perpetrated any of the crimes charged personally.
In the event that the prosecution does not do so, the word "committed" is struck out from par 33.
Done in English and French, the English text being authoritative.
Dated this 2nd day of July 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Decision on the Form of the Further Amended
Indictment and Prosecution Application to Amend, 26 June 2001 ("Decision
on the Form of the Indictment").
2. Ibid, pars 8-14.
3. Ibid, par 81(1).