IN THE TRIAL CHAMBER

 Before:
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
13 October 2000

THE PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC
DRAGOLJUB PRCAC


DECISION ON PROSECUTION REQUEST FOR LEAVE TO FILE A CONSOLIDATED INDICTMENT AND TO CORRECT
CONFIDENTIAL SCHEDULES


The Office of the Prosecutor:

Ms. Brenda Hollis
Mr. Michael Keegan
Mr. Kapila Waidyaratne

Defence Counsels:

Mr. Krstan Simic for Miroslav Kvocka
Mr. Zarko Nikolic for Milojica Kos
Mr. Toma Fila for Mladjo Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub Prcac

 

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 ("the International Tribunal"),

NOTING the "Prosecution’s request for leave to file a consolidated indictment and to correct confidential schedules" (hereafter the "Request"), filed by the Office of the Prosecutor on 28 August 2000, and the "Defence’s Response to the Prosecution’s Request for Leave to File a Consolidated Indictment and to Correct Confidential Schedules" (hereafter the "Response"), filed on 14 September 2000 by the counsel for Miroslav Kvocka;

HAVING HEARD the oral arguments of the parties on 4, 5 and 6 October 2000;

CONSIDERING that the Prosecution seeks leave to consolidate the two indictments for the accused Prcac (IT-95-4) on the one hand, the accused Kvocka, Radic, Kos and Zigic (IT-98-30) on the other, in order to take into account the joinder of the cases against these five accused in a single case (IT-98-30/1), and to correct various typographical errors in the Confidential Schedules submitted with the Amended Indictment, namely:

CONSIDERING that the defence counsel for the accused Kvocka objects to changing the dates in the Schedules to 30 August 1992 on the grounds that it cannot be considered a typographical error and that correcting the dates at such a late stage of the Prosecution case in chief would be contrary to the principle of a right to a fair and expeditious trial as guaranteed in Article 20 of the Statute; that, relying on the dates specified in the Schedules and in combination with the Prosecution’s acknowledgement that, after June 1992, Miroslav Kvocka was no longer Commander or Deputy Commander of the Omarska Camp, it confined the preparation of Mr. Kvocka’s defence to the time period ending 30 June 1992;

CONSIDERING that the defence for the accused Zoran Zigic raises similar objections, and emphasises that one specific crime (the murder of Hanki Ramic) was added to the list of specific murders mentioned in the text of the indictment, so that Zoran Zigic could now be charged with "a couple of thousand murders more"1;

NOTING that the defence for the accused Radic, Kos and Prcac did not oppose the Request;2

NOTING Articles 18 and 20 of the Statute of the Tribunal and Rules 50 and 54 of the Rules of Procedure and Evidence;

CONSIDERING that the time frame for the alleged commission of crimes in the text of the indictment itself has always extended to 30 August 1992;

CONSIDERING that, on 12 April 1999, the Trial Chamber seized of the case at that time (Judge May, presiding, Judges Bennouna and Robinson; hereafter, "Trial Chamber III"), in its "Decision on Defence preliminary motions on the form of the indictment", found that "a challenge [regarding defects in relation to the time-period during which the accused is alleged to have been in the Omarska camp and] based on disagreement with the facts as alleged, is not appropriately raised in a preliminary motion on defects in the form of the indictment Sand that dCisputes as to issues of fact are for determination at trial" 3;

CONSIDERING moreover that, in the footnote linked to paragraph (i) of this decision, Trial Chamber III noted: "The period of events now reads 24th May-30th August 1992, as opposed to 26th May-30th August previously."4;

CONSIDERING that the mention of the 30 June 1992 date in the first block of the tables in the initial Schedules appears in obvious contradiction with the dates mentioned in the tables themselves in respect of specific victims;

CONSIDERING in particular that, in the tables regarding the persecution and the torture counts against Miroslav Kvocka, there are victims listed for whom the date mentioned is later than 30 June 1992; that, therefore, in this respect, the Defence cannot reasonably claim that it was not aware of the Prosecution’s intention to charge the accused Kvocka with crimes committed after 30 June 1992;

CONSIDERING that while the Defence for the accused Kvocka is right in stating that the Prosecution itself mentioned that the accused ceased to be Commander or Deputy Commander in the Omarska camp sometime in June 1992, it does not follow necessarily that the accused could not be liable for any of the crimes committed after the date his official functions in the camp ceased; that, indeed, it belongs to the Prosecution to present evidence, if any, of such crimes, within the terms of the amended indictment;

CONSIDERING that, in the Decision of 8 November 1999, the Chamber dismissed Zoran Zigic’s contention that the Prosecution did not provide enough particulars as to the dates when the alleged crimes were committed, on the ground that the Prosecution was "only directed to delete the word "about", and was not directed to provide the exact date and time of the alleged offences", and that the Chamber then specified that Schedule D provides additional particulars "as to the dates of the alleged offences in respect of individual acts against victims"5;

CONSIDERING that no murder, and more generally, no crime was added in the schedules concerning the accused Zigic and attached to the Request as compared to those attached to the amended indictment and filed on 31 May 1999;6

CONSIDERING, generally, that the Prosecutor, in her opening statement, clearly referred to the period running from the 24th of May to the 30th of August 19927, using expressions such as "the spring and summer 1992"8 and argued that "[t]he evidence presented during [the] trial [would] prove that these accused and others under their supervision confined, beat, tortured, sexually assaulted, and murdered many of the Muslim and Croat detainees at the prison camps during the summer of 1992"9;

CONSIDERING that the Prosecution repeatedly made arguments that the accused "joined" a "criminal enterprise"10 and could be responsible for crimes occurring after June 1992 pursuant to a theory of "common purpose"11;

CONSIDERING therefore that the defence counsel for the accused Miroslav Kvocka and Zoran Zigic cannot reasonably claim that they have been misled by the erroneous dates at stake;

FOR THE FOREGOING REASONS,

HEREBY DISMISSES the objections to the consolidated indictment raised by the Defence for the accused Miroslav Kvocka and Zoran Zigic,

AUTHORISES the Prosecutor to file a consolidated indictment, at the same time as the corrected (Annexes A trough E to the Request).

Done in English and French.

 

___________
Almiro Rodrigues
Presiding Judge

Dated this thirteenth day of October 2000,
At The Hague
The Netherlands.

[Seal of the Tribunal]


1. Provisional transcripts (herafter  Transcripts ) p. 6371.
2. Transcripts p.6353-6355.
3. "Decision on Defence preliminary motions on the form of the indictment", Case IT-98-30-PT, 12 April 1999, paragraph 40.
4. "Decision on Defence objections to the amended indictment, Case IT-98-30-PT, 8 November 1999, p.5 (our emphasis).
5. Ibid. page 7, what is true for Schedule D being also true for the others.
6. The schedules (Annex D) are identical but for the date in the first cell of the new table, in particular with respect to one victim of murder, Hanki Ramic, whose name appears in the third cell from the bottom of the murder list, on both the old and the new schedule.
7. Prosecution opening statement, 28 February 2000, Transcript p. 603.
8. Transcripts p. 573.
9. Transcripts p. 575.
10. Transcripts p. 573.
11. Transcripts p. 6586-6589.