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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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.
- 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.
- Sljivancanin’s objection is therefore upheld.
B. Request for Further Particulars
- 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
- 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
- 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
- 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
- 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
- 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.
- Mrksic’s objection is therefore rejected.
- 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.