IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 2 March 1999
DECISION ON DEFENCE APPLICATION
FOR BILL OF PARTICULARS
The Office of the Prosecutor
Mr. Geoffrey Nice
Mr. Rodney Dixon
Counsel for the accused
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr.,
and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez
Pending before this Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Law Committed
in the Territory of the Former Yugoslavia since 1991 ("International Tribunal")
is the motion "Defense Application for Bill of Particulars" ("the
Motion") filed by counsel for the accused, Mario Cerkez ("Defence") on
22 January 1999, together with the "Prosecutors Response to Defence
Application for Bill of Particulars" filed by the Office of the Prosecutor
("Prosecution") on 5 February 1999.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of
the parties heard on 16 February 1999,
HEREBY ISSUES ITS WRITTEN DECISION.
A. Arguments of the Parties
- In its Motion, the Defence for Mario Cerkez submits that, pursuant to Article 21,
paragraph 4(a), and Article 18, paragraph 4, of the Statute of the International Tribunal
("Statute") and Rule 47(C) of the Rules of Procedure and Evidence
("Rules"), an indictment must allege in detail the facts supporting each element
of the offence charged. The Defence alleges that the Amended Indictment contains
insufficient factual detail in support of the charges against the accused, thereby
rendering the charges therein fatally defective.
- In particular, the Defence submits that the Amended Indictment has failed to set forth
any factual allegations supporting the Prosecutions legal conclusion regarding the
existence of an international armed conflict. The Defence further states that the Amended
Indictment fails to identify with sufficient detail in respect of each offence charged the
time, alleged victims, participants in the alleged events and the role of the accused in
the underlying conduct.
- The Defence submits that the Amended Indictment fails to allege the proper mens rea
requirement for each offence. The Defence further contends that the Prosecution, instead
of specifying the facts underlying the charges in the Amended Indictment, has utilised
cumulative and unjustifiably expansive arguments in respect of the charges.
4. The Defence requests that in the alternative to the foregoing requests, or in any
event, if the Prosecution fails to provide the specified particulars, the Amended
Indictment should be dismissed in its entirety.
- In response, the Prosecution submits that it has fulfilled its obligations under the
Statute and the Rules, as the Amended Indictment sufficiently notifies the accused of the
crimes with which he is charged and the factual bases for those crimes. The Prosecution
further notes its "Response to Defence Form of the Indictment Motion #2 to Strike the
Amended Indictment for Vagueness" filed on 5 February 1999 in response to a similar
motion by the co-accused, Dario Kordic, and incorporates the arguments set forth therein.
The Prosecution concludes that the Defence has failed to establish the necessary grounds
to justify amendment or dismissal of the Amended Indictment.
- With respect to the Defence submissions that the Amended Indictment is impermissibly
vague in that it fails to identify with specificity (i) the facts supporting each element
of the offences charged; (ii) the conduct of the accused giving rise to criminal liability
in respect of each charge; (iii) the identity of the accuseds alleged accomplices
and victims; (iv) details as to when the criminal acts underlying the charges in the
Amended Indictment are alleged to have occurred; and (v) sufficient facts in support of
the existence of an international armed conflict, the Trial Chamber reiterates the general
position reflected in prior decisions of the International Tribunal that, pursuant to Rule
47(C) of the Rules and Article 18, paragraph 4, of the Statute, what is required at this
stage is "a concise statement of the facts of the case and of the crime with which
the suspect is charged".
- The Trial Chamber has reviewed carefully the arguments of the Defence and finds that the
Amended Indictment meets these requirements.
- In response to the Defence request that the Prosecution be ordered to specify the mens
rea element in relation to each offence, the Trial Chamber notes that the indictment
need not identify the precise legal elements of each crime since all that is required
under Article 18, paragraph 4, is a concise statement of the facts and the crime or crimes
with which the accused is charged under the Statute.
- With respect to the Defence request that the Prosecution be ordered to strike surplus
arguments from the Amended Indictment, the Trial Chamber is unable to identify these
surplus arguments and finds the request wholly unmeritorious.
For the foregoing reasons
PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of the
THE TRIAL CHAMBER DISMISSES the Defence Application for Bill of
Done in both English and French, the English text being authoritative.
Dated this second day of March 1999
At The Hague
[Seal of the Tribunal]