Case No. IT-95-13/1-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
29 October 2004

PROSECUTOR

v.

MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN

_____________________________________

DECISION ON FORM OF SECOND MODIFIED CONSOLIDATED AMENDED INDICTMENT

_____________________________________

The Office of the Prosecutor:

Mr. Jan Wubben

Counsel for the Accused Mile Mrksic:

Mr. Miroslav Vasic

Counsel for the Accused Miroslav Radic:

Mr. Borivoje Borovic
Ms. Mira Tapuskovic

Counsel for the Accused Veselin Sljivancanin:

Mr. Novak Lukic
Mr. Momcilo Bulatovic

 

    I. APPLICATIONS AND BACKGROUND

  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 two preliminary motions pursuant to Rule 72(A)(ii) of the Rules of Procedure and Evidence (“Rules”),1 alleging defects in the form of the Second Modified Consolidated Amended Indictment against the Accused Mile Mrksic (“Mrksic”), the Accused Miroslav Radic (“Radic”) and the Accused Veselin Sljivancanin (“Sljivancanin”) (collectively: “Accused”).2 The two preliminary motions were respectively filed by Sljivancanin on 20 September 2004 (“Sljivancanin’s Preliminary Motion”)3 and by Mrksic on 24 September 2004 (“Mrksic’s Preliminary Motion”)4. The Office of the Prosecutor (“Prosecution”) filed its response on 4 October 2004 (“Prosecution’s Response”).5

  2. The background to the different indictments in this case has already been set out in earlier decisions, so that it is unnecessary to repeat it here.6 Suffice it to say that, in the Third Decision on Form of Indictment, the Trial Chamber had ordered the Prosecution to modify the Modified Consolidated Amended Indictment and to file it once modified.7 As a result, the Prosecution filed the Second Modified Consolidated Amended Indictment on 26 August 2004. It is in relation to the Second Modified Consolidated Amended Indictment that the most recent preliminary motions have been filed by Mrksic and Sljivancanin.

    II. THE SECOND MODIFIED CONSOLIDATED AMENDED INDICTMENT

  3. In the Second Modified Consolidated Amended Indictment, the Accused are charged, pursuant to Articles 7(1) and 7(3) of the Statute of the Tribunal (“Statute”),8 with various offences allegedly committed subsequent to the Serb takeover of the city of Vukovar (Republic of Croatia), namely, with the following eight counts:

    (a) persecutions,9 extermination,10 and inhumane acts,11 as crimes against humanity;

    (b) cruel treatment12 as a violation of the laws and customs of war;

    (c) murder, as both a crime against humanity13 and a violation of the laws and customs of war14 and

    (d) torture, as both a crime against humanity15 and a violation of the laws and customs of war.16

    III. GENERAL PLEADING PRINCIPLES

  4. Although the First Decision on Form of Indictment was limited to Mrksic, it outlined the general pleading principles applicable to the present case.17 The Trial Chamber finds it unnecessary to reproduce those principles here, but affirms that they apply in full to the present decision as well.

    IV. CHALLENGES TO THE FORM OF THE SECOND MODIFIED CONSOLIDATED AMENDED INDICTMENT

  5. The Trial Chamber has already decided upon a number of Mrksic’s and Sljivancanin’s challenges to the form of the indictment. For this reason, their current submissions ought to have been restricted to any new issues raised in the Second Modified Consolidated Amended Indictment. The Trial Chamber has repeatedly stated that:

    [i]t should be emphasised that the right conferred by Rule 50(C) on the accused to file a preliminary motion alleging defects in the form of an amended indictment is directed to the material added by way of amendment, and not to material present in the original indictment which was not objected to at an earlier stage.18

  6. Instead, Mrksic and Sljivancanin raise issues which they have already earlier addressed to the Trial Chamber by way of preliminary motion. Still, they argue that the reason they do so is because the Prosecution has failed to comply with the Trial Chamber’s Third Decision on Form of Indictment, and that as a result the Prosecution has not set out all of the relevant material facts in the Second Modified Consolidated Amended Indictment to allow them to properly prepare their case. The Prosecution generally responds that it has followed the Trial Chamber’s directions and that all relevant material facts have been provided and that the sufficiency of the evidence is instead a matter for trial. Specific challenges are addressed below, divided into the following two categories:

    a) challenge to the nature of the alleged responsibility of the Accused pursuant to Article 7(3) of the Statute

    b) request for further particulars.

    A. Challenge to the Nature of the Alleged Responsibility of the Accused Pursuant to Article 7(3) of the Statute

  7. Sljivancanin alleges that the Prosecution did not act pursuant to the Third Decision on Form of Indictment because in the Second Modified Consolidated Amended Indictment it has insufficiently pleaded Sljivancanin’s alleged de jure responsibility under Article 7(3) of the Statute. He argues that the Second Modified Consolidated Amended Indictment continues to be defective because it fails to specify who Sljivancanin’s subordinates were and that they carried out acts or omissions for which he would be held responsible as their superior.19

  8. The Prosecution responds that Sljivancanin has ignored its detailed explanation in the Prosecution’s Filing to Modify the Indictment and that, read jointly, a number of paragraphs in the Second Modified Consolidated Amended Indictment sufficiently plead “the “Serb forces” involved in the “evacuation operation” over whom Sljivancanin had de jure authority.20

  9. As noted earlier, Sljivancanin raised this issue already with respect to the Consolidated Amended Indictment, which he submitted was defective, inter alia, because it lacked the material facts relating to the acts or omissions of his alleged subordinates. In the Second Decision on Form of Indictment, the Trial Chamber decided as follows:

    Sljivancanin submits that there is “no information whatsoever” in the Consolidated Amended Indictment (a) that the individuals who were his de facto subordinates committed any crimes and (b) that he had effective control over those who allegedly committed the crimes. Sljivancanin also submits that the Prosecution’s submissions are contradictory with respect to his position of superiority, because whilst paragraph 18 of the Consolidated Amended Indictment alleges that he was de facto in charge of a military police battalion, paragraph 19 alleges that all three Accused “exercised both de jure and de facto power over the forces under their command”. The Trial Chamber finds that the Consolidated Amended Indictment identifies the “physical” perpetrators of the underlying acts for which the Accused are charged with enough detail to inform them of the nature and cause of the charges against them thus enabling them to prepare a defence effectively and efficiently. Whether it is true that the alleged “physical” perpetrators were Sljivancanin’s de facto subordinates because he had effective control over them in the sense of a material ability to prevent the offences or punish the perpetrators is a matter to be resolved at trial.

    On the other hand, the Trial Chamber upholds the objection regarding the nature of Sljivancanin’s alleged position of superiority over his subordinates. The Trial Chamber’s order to the Prosecution is in the following terms. If it is the Prosecution’s case that Sljivancanin exercised both de jure and de facto power over the forces under his command, the Prosecution needs to plead this expressly by identifying those forces over which he held a de jure position of superiority, as it has done for Mrksic and Radic. In the event that this is not the Prosecution’s case, it needs to amend paragraph 19 of the Consolidated Amended Indictment accordingly.21

  10. The problem persisted to an extent with respect to the Modified Consolidated Amended Indictment, which left intact the allegation that Sljivancanin was de facto in command of a military police battalion subordinated to the 1st Guards Motorised Brigade, and added that he “had de jure authority over Serb forces, including members of the JNA and members of the TO and volunteer and paramilitary units as referred to in paragraph 7 [of the Modified Consolidated Amended Indictment] that were directly involved in the evacuation of Vukovar Hospital”. The question of whether the military police battalion over which Sljivancanin is alleged to have had de facto authority participated in the commission of the crimes charged was not resolved. With respect to Sljivancanin’s alleged de jure authority, in the Third Decision on Form of Indictment, the Trial Chamber stated with respect to the Modified Consolidated Amended Indictment that:

    [i]f it is the Prosecution’s case that members of the TO and volunteer and paramilitary units were directly involved in the evacuation of Vukovar Hospital, [it] should amend paragraphs 28, 32 and 33 accordingly. If this is not the Prosecution’s case, it should not use the term “Serb forces” in paragraph [17] in reference to direct participants in the evacuation of Vukovar Hospital and should instead restrict its reference to members of the JNA forces.22

  11. In the Prosecution’s Filing to Modify the Indictment, the Prosecution stated that it was its case that “members of the TO and volunteer and paramilitary units were directly involved in the evacuation operation of Vukovar Hospital”, and clarified that “[t]he Prosecution’s pleadings allege that the evacuation operation spanned geographically, from the Vukovar Hospital to the JNA barracks and finally halted at the Ovcara farm. The evacuation operation occurred chronologically from the early morning until the evening of 20 November 1991. Thus, the evacuation operation was not limited to the removal of persons from the hospital building”.23 It submitted that the insertion of the word “operation” in paragraph 17 of the Second Modified Consolidated Amended Indictment sufficed to remove any ambiguity in pleading.24 It is worth noting, however, that the Prosecution failed to specify whether the evacuation "operation" spanned the eventual mistreatment of detainees at Ovcara farm and their killing at the ravine nearby, or whether it did not. This too requires clarification. The Prosecution will be required to provide such clarification in the amended indictment it will be ordered to file.

  12. The Trial Chamber notes that, even if understood in accordance with the Prosecution’s additional submissions on this issue, the identity of Sljivancanin’s subordinates and their acts or omissions for which he would be held to be responsible are far from apparent. The Prosecution’s amendment to this effect has not succeeded in curing the ambiguity present in the Second Modified Consolidated Amended Indictment with respect to Sljivancanin’s alleged superior responsibility for the acts or omissions of his subordinates.

  13. The Trial Chamber has in numerous occasions reiterated that the Prosecution is free to plead its case as it sees fit, as long as it sets out the material facts that will allow the Defence to meet the case. In this instance, however, the Trial Chamber agrees with Sljivancanin’s submissions and directs the Prosecution to take again a hard look at paragraph 17, and, if it is its case that Sljivancanin had superior authority, either de jure or de facto or both, over the individuals that were directly involved in the mistreatment and killing of non-Serbs taken from Vukovar Hospital to Ovcara farm, that it pleads so in terms in the Second Modified Consolidated Amended Indictment.25

  14. This is not an issue that arises with respect to Mrksic and Radic since in their case it is alleged that “[d]uring the operations against Vukovar and its aftermath, Miroljub Vujovic and Stanko Vujanovic, in their capacity as TO commanders, were each subordinate to [Mile Mrksic and Miroslav Radic respectively]”.26 The former two individuals, Miroljub Vujovic and Stanko Vujanovic, are identified earlier in the Second Modified Consolidated Amended Indictment as having command “over the units of the TO of the “SAO SBWS” responsible for the mistreatment and killing of non-Serbs taken from Vukovar Hospital to Ovcara farm”.27

  15. If, as it appears more likely from the Second Modified Consolidated Amended Indictment, the Prosecution’s case is rather that Sljivancanin had superior authority, either de jure or de facto or both, over the individuals that evacuated non-Serbs from Vukovar Hospital, guarded them at the JNA barracks in Vukovar, and then transferred these detainees to the Ovcara farm building where they delivered them to the individuals physically committing the crimes, it should also plead so in terms. Whether responsibility pursuant to Article 7(3) may in effect arise from these acts or omissions of his alleged subordinates is a matter to be resolved at trial and does not concern the form of the Indictment.28 The Trial Chamber reiterates the principle that the Prosecution is expected to inform the accused of the nature and cause of the case before it goes to trial, and that it is unacceptable for it to omit the material facts in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.29 Having said this, it would not be justified at this stage and for these reasons to require the Prosecution to restrict its pleading of Sljivancanin’s responsibility to his responsibility pursuant to Article 7(1) of the Statute. As noted, it’s a matter for trial whether responsibility pursuant to Article 7(3) may arise from the acts or omissions of Sljivancanin’s alleged subordinates: of themselves, however, these acts or omissions constitute material facts and must be pleaded.

  16. In addition, the Prosecution's attention is also directed to paragraph 18 of the Second Modified Consolidated Amended Indictment. The Trial Chamber ultimately expects this paragraph to reflect the Prosecution's amended pleading of Sljivancanin's alleged superior responsibility.

  17. Sljivancanin’s objection is therefore upheld.

    B. Request for Further Particulars

  18. It is Mrksic’s challenge that in paragraph 9(b) of the Second Modified Consolidated Amended Indictment the Prosecution has, in disregard of the Trial Chamber’s directions contained in the Third Decision on Form of Indictment, insufficiently pleaded Mrksic’s alleged participation in the “further discussions” with staff of the Vukovar Hospital concerning the implementation of the agreement on the evacuation of patients.30

  19. The Prosecution responds by drawing Mrksic’s attention to the supporting material which in its view “adequately addresses the specificity of the “discussions” in connection with the implementation of the agreement to evacuate patients”.31

  20. In the Third Decision on Form of Indictment the Trial Chamber stated that:

    [t]he Trial Chamber is of the view that, while there are sufficient details provided in the Modified Consolidated Amendment Indictment of the negotiations of 18 November 1991, the “further negotiations” mentioned in paragraphs 9(b) and 11(b) are insufficiently pleaded, a defect which is not remedied by the supporting material indicated by the Prosecution ?the notes of an interview with Dr. Vesna Bosanac, which the Trial Chamber purported at the time to examine, but could not find any reference to negotiations conducted over the evacuationg.32 The role of these further negotiations, the parties to them, and the additional responsibilities incurred by Sljivancanin and Mrksic as a result remain unclear. The objections of Sljivancanin and Mrksic are upheld, and the Prosecution is ordered to plead its case more specifically, in particular stating where, when and between whom the “further negotiations” mentioned in paragraphs 9(b) and 11(b) took place, and what the outcome of those negotiations was.33

  21. In the Second Modified Consolidated Amended Indictment, the Prosecution has altered paragraphs 9(b) and 11(b) to read as follows:

    [Mrksic or Sljivancanin, as the case may be] was aware that an agreement had been reached in Zagreb, on 18 November 1991, between the JNA and Croatian authorities regarding the evacuation of patients from Vukovar Hospital and also, subsequently, participated in further discussions with Vukovar Hospital staff about the implementation of the agreement to evacuate patients ;34

  22. The Trial Chamber is of the view that, by specifying that Mrksic and Sljivancanin participated in the said further discussions about the implementation of the agreement to evacuate patients together with staff from Vukovar Hospital, the Prosecution has discharged its obligation to plead the relevant material facts in the Second Modified Consolidated Amended Indictment. Any further request for more details with respect to these discussions is a request effectively seeking particulars regarding material facts. The Trial Chamber has previously recognised that:

    while the Prosecution is under an obligation to provide the best particulars that it can in presenting its case, this does not affect the form of the Consolidated Amended Indictment. It is inappropriate at this stage for the Accused to challenge the sufficiency of the evidence. If the information the Accused seek is not apparent from the witness statements made available by the Prosecution in accordance with Rule 66(A), the Accused’s remedy lies in requesting the Prosecution to supply particulars of the statements upon which it relies to prove the specific material facts in question. If the Prosecution’s response to that request is unsatisfactory, then and only then, the Accused may seek an order from the Trial Chamber that such particulars be supplied.35

  23. In the Prosecution’s Filing to Modify the Indictment, the Prosecution further directed the Trial Chamber’s attention to a number of witnesses’ statements in the supporting material, namely those of Dr. Vesna Bosanac, Vlado Franic and Neda Striber, which according to it provide further particulars of these discussions.36 It is suggested to Mrksic that it may suffice for him to peruse these in his quest for further particulars on this issue, failing which he ought to proceed as detailed above.

  24. Mrksic’s objection is therefore rejected.

  25. There is in the Trial Chamber’s view an additional question, and that is that Rule 50(A)(ii) requires the Trial Chamber in this case to satisfy itself that “there is evidence which satisfies the standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment”. Although the allegation that Mrksic and Sljivancanin participated in further negotiations over the evacuation of patients from Vukovar Hospital appeared under different forms in several of the earlier indictments, at the time when it was ruled upon as defective by the Trial Chamber, the clarification that these further discussions took place between Mrksic and Sljivancanin and the staff of Vukovar Hospital is novel. As a result, the Trial Chamber would simply want to verify, with the assistance of the witnesses’ statements pointed out by the Prosecution, that there is evidence to support this amendment which would satisfy the standard mentioned above. For this reason, the Prosecution will be directed to provide these statements to the Trial Chamber.37

    DISPOSITION

    For the foregoing reasons,

    PURSUANT TO Rule 72,

    TRIAL CHAMBER II HEREBY

    ORDERS the Prosecution to modify the Second Modified Consolidated Amended Indictment attached to the Prosecution’s Filing to Modify the Indictment in the terms set out in paragraphs 11, 13, 15 and 16 of this decision;

    ORDERS the Prosecution to file the amended indictment within 14 days of the filing of this decision, i.e. by no later than 12 November 2004;

    ORDERS the Prosecution to provide the Trial Chamber with the witnesses’ statements detailed in paragraph 23 of this decision.

 

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

Dated this 29th day of October 2004,
At The Hague
The Netherlands

_____________
Carmel Agius

Presiding Judge

[Seal of the Tribunal]


1 - Rules of Procedure and Evidence, IT/32/Rev.32, 12 August 2004.
2 - Prosecution’s Filing to Modify the Modified Consolidated Amended Indictment Pursuant to the Trial Chamber Decision of 20 July 2004, 26 August 2004 (“Prosecution’s Filing to Modify the Indictment”). Attachment 1 to the Prosecution’s Filing to Modify the Indictment consists of the Second Modified Consolidated Amended Indictment.
3 - Rule 72 A (ii) Preliminary Motion of Veselin Sljivan~anin Defense, 20 September 2004.
4 - Defence Preliminary Motion, 24 September 2004.
5 - Prosecution’s Response to Preliminary Motions of Accused Mile Mrksic and Veselin Sljivan~anin, 4 October 2004.
6 - The initial indictment against the Accused was confirmed back in 1995: Prosecutor v Mrksic, Radic and Sljivancanin, Case IT-95-13-I, Indictment, 7 November 1995. Mrksic surrendered to the Tribunal on 15 May 2002, and the Prosecution was given leave to file what it termed the Second Amended Indictment against him alone: Prosecutor v Mrksic, Case IT-95-13/1, Second Amended Indictment, 29 August 2002. The Trial Chamber decided on Mrksic’s allegations that it was defective, and ordered the Prosecution to amend it: Prosecutor v Mrksic, Case IT-95-13/1-PT, Decision on Form of the Indictment, 19 June 2003 (“First Decision on Form of Indictment”). Radic and Sljivancanin eventually entered into the custody of the Tribunal, and the Prosecution sought leave to file a single indictment against all three Accused. They in turn alleged the Consolidated Amended Indictment was defective, and the Trial Chamber ordered the Prosecution to modify it: Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend, 23 January 2004 (“Second Decision on Form of Indictment”); See also, Corrigendum to Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend, 26 January 2004. Subsequently, preliminary motions alleging defects in the form of the Modified Consolidated Amended Indictment were filed by Mrksic and Sljivancanin. The Trial Chamber ordered the Prosecution to modify the Modified Consolidated Amended Indictment and to file it once modified: Decision on Form of Modified Consolidated Amended Indictment, 20 July 2004 (“Third Decision on Form of Indictment”).
7 - Prosecution’s Filing to Modify the Indictment, para. 1. The Prosecution had earlier requested, and the Trial Chamber had granted, an extension of time to file this application: see Decision on Extension of Time for Filing Amended Version of Modified Consolidated Amended Indictment, 13 August 2004.
8 - Statute of the International Criminal Tribunal for the former Yugoslavia (“Statute”), as amended by SRES/1481 (19 May 2003). Hereinafter, “Article” or “Articles” refer to an Article or Articles of the Statute.
9 - Count 1, Article 5(h) of the Statute.
10 - Count 2, Article 5(b) of the Statute.
11 - Count 6, Article 5(i) of the Statute.
12 - Count 8, recognised by Common Article 3(1)(a) of the Geneva Conventions and punishable under Article 3 of the Statute.
13 - Count 3, Article 5(a) of the Statute.
14 - Count 4, recognised by Common Article 3(1)(a) of the Geneva Conventions and punishable under Article 3 of the Statute.
15 - Count 5, Article 5(f) of the Statute.
16 - Count 7, recognised by Common Article 3(1)(a) of the Geneva Conventions and punishable under Article 3 of the Statute.
17 - First Decision on Form of Indictment, paras 7-14.
18 - Third Decision on Form of Indictment, para. 25. See also Prosecutor v Krnojelac, Case No IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000, para. 15.
19 - Sljivancanin’s Preliminary Motion, para. 17.
20 - Prosecution’s Response, para. 17.
21 - Second Decision on Form of Indictment, paras 38-39 (footnotes omitted).
22 - Third Decision on Form of Indictment, para. 22. In its decision, the Trial Chamber had mistakenly referred to paragraph 18 of the Modified Consolidated Amended Indictment of 6 February 2004 where it should have instead referred to paragraph 17 of the Modified Consolidated Amended Indictment of 9 February 2004. See Prosecution’s Filing to Modify the Indictment, para. 15.
23 - Prosecution’s Filing to Modify the Indictment, paras 18-19.
24 - Prosecution’s Response, para. 19.
25 - See e.g. the Prosecution’s pleading with respect to Miroljub Vujovic and Stanko Vujanovic in paragraph 8 of the Second Modified Consolidated Amended Indictment.
26 - Second Modified Consolidated Amended Indictment, paras 15-16.
27 - Second Modified Consolidated Amended Indictment, para. 8(c). The Trial Chamber notes that the Prosecution has amended this paragraph in accordance with the Trial Chamber’s direction in the Third Decision on Form of Indictment: see Third Decision on Form of Indictment, para. 26; see also Prosecution’s Filing to Modify the Indictment, paras 23-26.
28 - Article 7(3) of the Statute provides as follows: “The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
29 - See Kupreskic Appeal Judgment, para. 92; see also First Decision on Form of Indictment, para. 13.
30 - Mrksic’s Preliminary Motion, paras 5-7.
31 - Prosecution’s Response, para. 21.
32 - Please see additionally in this connection footnote 37 below.
33 - Third Decision on Form of Indictment, para.17. See also ibid, para. 16.
34 - Second Modified Consolidated Amended Indictment. Paragraphs 9(b) and 11(b) of the Modified Consolidated Amended Indictment read: “was aware that an agreement had been reached in Zagreb, on 18 November 1991, between the JNA and Croatian authorities regarding the evacuation of patients from Vukovar Hospital and also, subsequently, participated in the further negotiations over the evacuation of patients”.
35 - Second Decision on Form of Indictment, para. 53; see also First Decision on Form of Indictment, para. 48 and Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on Form of Third Amended Indictment, 21 Sept 2001, para. 8.
36 - Prosecution’s Filing to Modify the Indictment, footnote 4.
37 - The Third Decision on Form of Indictment erroneously assumed that the Trial Chamber was in possession of the witness statement of Dr. Vesna Bosanac as part of the supporting material provided by the Prosecution as Confidential Attachment II to the Consolidated Amended Indictment: see Third Decision on Form of Indictment, para. 16 and footnote 39. The Trial Chamber has now verified that this is not the case.