Case No. IT-01-47-PT

BEFORE TRIAL CHAMBER II

Before:
Judge Carmel Agius
Judge Florence Ndepele Mwachande Mumba
Judge Jean-Claude Antonetti

Registrar:
Mr Hans Holthuis

Decision of:
18 November 2003

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

___________________________________

DECISION ON FORM OF INDICTMENT

_______________________________________

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr David Re

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

1. Trial Chamber II ("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 ("Tribunal") is seised of a preliminary motion alleging a defect in the form of the indictment filed by the Defence of the Accused Amir Kubura ("Accused") on 7 November 2003 (Defence Motion of Amir Kubura on Form of Indictment in Respect of New Charges Concerning Miletici) and the Prosecutionís response to the Defenceís motion filed on 12 November 2003 (Prosecution Response to Defence Motion of Amir Kubura on Form of Indictment in Respect of New Charges Concerning Miletici).

2. The motion seeks the withdrawal of the new charge brought against the Accused in the third amended indictment ("indictment") filed by the Prosecution on 26 September 2003, that is, the withdrawal of the new charge relating to the four killings in Miletici contained in count 1, on the ground that this new charge is defective in its form.

3. The Defenceís objection concerns the identity of the perpetrators of the four killings committed in Miletici in April 1993. The Defence submits that, in paragraph 39(b) of the indictment, the Prosecution fails to specify, either in terms of individuals or units, who perpetrated the acts of brutality since, in that paragraph, the Prosecution states only that the acts committed in Miletici took place "after troops of both the 7th Muslim Mountain Brigade and the 306th Mountain Brigade had launched the attack on Miletici". The Defence therefore maintains that the indictment lacks precision and that it is unable to prepare its defence for trial.

4. In its response, the Prosecution submits that the Trial Chamber has already ruled on the issue of the late inclusion of the new charges pertaining to the village of Miletici in its Decision on Form of Indictment rendered on 17 September 2003 and that the Defenceís assertion that it is unable to prepare its case because of the late inclusion of the new charges should therefore be disregarded.1 The Prosecution additionally points out that the issue of the identification of the troops from the 7th Muslim Mountain Brigade and the 306th Mountain Brigade does not affect the form of the indictment.

5. Pursuant to Articles 18(4), 21(2) and 21(4)(a) and (b) of the Statute of the Tribunal ("Statute") and Rule 47(C) of the Rules of Procedure and Evidence of the Tribunal ("Rules"), the pleadings in an indictment are sufficiently particular when it concisely sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the nature and cause of the charges against him to enable him to prepare a defence.

6. In this instance, the Trial Chamber is satisfied that the indictment presents the material aspects of the Prosecution case in sufficient detail.

7. The Trial Chamber has already ruled in this case that the fact that the relevant counts do not mention any specific brigade does not make the indictment defective.2

8. The Trial Chamber considers that paragraph 39(b) of the indictment must not be read in isolation but in the light of paragraphs 51 to 58 of the Prosecutionís Pre-Trial Brief pursuant to Rule 65 ter(E)(i) of the Rules ("Prosecution Pre-Trial Brief") filed on 10 October 2003.

9. Paragraphs 56 and 57 of the Prosecution Pre-Trial Brief state that men from the 1st Battalion of the 7th Muslim Mountain Brigade arrived at the village of Miletici and attacked it. They also specify that several soldiers from the 7th Muslim Brigade took the villagers off towards Mehurici, leaving four captured Croatian HVO soldiers, mentioned by name, in the custody of the other 3rd Corps soldiers. Paragraph 58 then sets out that "the 3rd Corps soldiers murdered the four men". The wording of the above paragraphs thus provides the Defence with sufficient information as to the identity of the brigades that purportedly committed the alleged crimes.

10. In conclusion, the Trial Chamber considers that when paragraph 39(a) of the indictment and paragraphs 56, 57 and 58 of the Prosecution Pre-Trial Brief are read together, the only reasonable inference to be drawn is that the forces which attacked the village in question also committed the alleged crimes.

11. The Chamber thus finds that the indictment provides the Defence with sufficiently detailed information in order for it to be able to prepare for trial and that it meets the requirements of Articles 18(4), 21(2) and 21(4)(a) and (b) of the Statute and Rule 47(C) of the Rules.

PURSUANT to Rules 50 and 72 of the Rules, this Trial Chamber,

DISMISSES the Defenceís objection and, hence, the motion,

 

Done this eighteenth day of November 2003
At The Hague
The Netherlands

___________
Presiding Judge
Trial Chamber II


1. Paragraph 10 of the Defence motion.
2. Decision on Form of Indictment of 17 September 2003, paragraph 14.