IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Ninian Stephen
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 15 November 1996
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON MOTION BY THE ACCUSED HAZIM DELIC
BASED ON DEFECTS IN THE FORM OF THE INDICTMENT
The Office of the Prosecutor:
Mr. Eric Ostberg
Ms. Teresa McHenry
Counsel for the Accused:
Mr. Salih Karabdic, for Hazim Delic
On 1 August 1996, the accused, Hazim Delic, submitted to this 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 ("International Tribunal") a Motion based on Defects in the Form of the Indictment ("Motion") pursuant to Rules 72 and 73 of the International Tribunals Rules of Procedure and Evidence ("Rules"). The Office of the Prosecutor ("Prosecution") responded in writing to the Motion on 14 August 1996. The Defence submitted a Reply on 3 September 1996 ("Reply"). On 26 September 1996 the Defence sought leave of the Trial Chamber for such additional filing, which leave was granted on 4 October 1996 insofar as the Reply related to the Motion. The parties orally presented their arguments on 1 October 1996.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
1. The indictment in which Hazim Delic is charged ("Indictment") includes a total of 49 counts against the accused and three other persons. It was originally confirmed on 21 March 1996. The Prosecution alleges in the Indictment that Hazim Delic, as Deputy Commander of Celebici Camp from approximately May 1992 to November 1992, was responsible for several crimes committed by his subordinates in the Celebici camp (Counts 13-14, 33-35, 38-39, 44-45 and 46-47). Moreover, the Prosecution also holds Hazim Delic responsible for his alleged direct participation in the mistreatment and killing of several detainees (Counts 1-2, 3-4, 5-6, 11-12, 15-17, 18-20, 21-23, 24-26, 27-29, 40-41 and 42-43), as well as for the unlawful confinement of civilians and the plunder of private property (Counts 48 and 49).
2. The Defence asserts that the Indictment is incorrect, vague and contradictory. The Indictment is alleged to be incorrect in its statement of facts in the section entitled "Background" and in attributing command responsibility to the accused Hazim Delic. According to the Defence, the Indictment does not give a "concise statement of the facts and the crime or crimes with which the accused is charged under the Statute" as required by Article 18(4) of the Statute of the International Tribunal ("Statute") and Sub-rule 47(B) of the Rules. Finally, the Defence contends that the Indictment is contradictory in holding the accused Hazim Delic responsible for the same acts both as a direct participant and as a superior. In bringing the Motion, the Defence seeks the dismissal of the Indictment, or in the alternative, an order by the Trial Chamber for the Prosecution to amend the Indictment.
3. The Prosecution opposes the Motion primarily on the ground that the Indictment provides the Defence with enough precise information to enable it to prepare its defence. The Prosecution notes that further detailed particulars can be found in the supporting materials. The Prosecution also asserts that challenges to the facts are not appropriate in such a motion, and that, in any event, the evidence the Prosecution has revealed to the Defence supports the allegations.
4. The Trial Chamber will address each argument set forth in the Motion separately.
B. Applicable Provisions
5. The Motion is brought pursuant to Rule 72, which authorises the filing of preliminary motions, and Rule 73, which sets out a non-exhaustive list of the motions that an accused may submit. Rule 73 provides, inter alia, that an accused may make "objections based on defects in the form of the indictment." Articles 18 and 21 of the Statute and Sub-rule 47 (B) provide the foundation for the arguments articulated in the Motion. Article 18 provides in paragraph 4 :
Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber.
Sub-rule 47 (B) states that "[tChe indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged." In addition, sub-paragraph 4(a) of Article 21 provides that an accused is entitled "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him".
1. Questions of Fact
6. The Defence asserts that certain parts of the Indictment do not correspond with the facts. This assertion mainly focuses on the introductory "Background" section of the Indictment, in which is made mention of the "attack" on the village of Konjic and on other villages by forces consisting of Bosnian Muslims and Bosnian Croats. The Defence argues that those villages were not attacked, but rather "liberated by legal armed forces, which seized back occupied territory of their own state". Motion at p. 4.
7. Furthermore, the Defence stresses that the accused Hazim Delic was not, as the Indictment alleges, a Deputy Commander of the Celebici camp, and therefore did not possess any superior authority. Accordingly, the Defence argues that Counts 13-14, 33-35, 38-39, 44-45 and 46-47 are unjustified.
8. Thirdly, the Defence declares that only "armed men" were captured and confined in the Celebici camp. The Defence contends that the fact that most of them were in civilian clothing does not make them civilians, asserting: "All took part in the fight against legal forces loyal to the Bosnian government". Id. The Defence argues that their confinement therefore was not unlawful per se, as count 48 suggests.
9. The Prosecution asserts that disputes as to the validity of the facts of the indictment are not appropriately raised by way of a challenge to the form of the indictment.
10. The Trial Chamber has already dealt with very similar objections in this case with respect to one of the co-accused, Zejnil Delalic. Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Decision on the Motion by the Accused Zejnil Delalic Based on Defects in the Form of the Indictment, (No. IT-96-21-T, T. Ch. II, 2 Oct. 1996) ("Delalic Indictment Decision"). In that Decision, the Trial Chamber held that "disagreement with the facts is not a sufficient basis on which to rest a claim that the Indictment is defective." Delalic Indictment Decision at p. 5. That same principle applies here. It is the task of the Prosecution to prove its case and to prove the truthfulness of its assertions. Whether or not the accused was in a position of superior authority, and whether the people confined in the Celebici camp were civilians or not, are factual questions that must be determined at trial.
11. This is also true for the "Background" section of the Indictment. The use of the term "attack" in the Background section of the Indictment is simply a factual characterisation that does not suggest fault or authority of the accused and does not form the substance of the charges against the accused Hazim Delic. As a statement of fact, this term is not appropriately challenged by this motion. Disagreement with the facts is not a sufficient basis for claiming that the Indictment is defective. Id.
2. Allegations of Vagueness
12. The Defence asserts that the Indictment is in many respects so imprecise and unclear about place and time that it is impossible to know which events are the subject of the charges. In its Reply, the Defence argues that a "concise statement of the facts", in the sense of Article 18(4) of the Statute, must contain details and particulars about the place and time of the act, the performer, his means, the way the alleged crime is committed, and the consequences of such acts, from which it follows that the crime defined by law was committed. Reply at p. 3. The Defence contends that the function of supporting material is only to prove "a statement of facts", not to substitute for the Indictment. Specifically, the Defence claims that it is essential to know the identity of the "others" over whom the accused allegedly had superior authority. The Defence also argues that it is essential to know what facts underlie the assumption that the accused "knew or had reason to know" about the allegedly illegal acts and that he failed to take appropriate steps.
13. In response, the Prosecution argues that it is not required to provide full details of its evidence in the Indictment. According to the Prosecution, the Statute of the Tribunal and earlier Decisions allow particulars to be included in the supporting material.
14. The Trial Chamber, in another prior Decision in this case (Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Decision on the Accused Mucics Motion for Particulars at p. 4 (No. IT-96-21-T, T.Ch.II, 26 June 1996)), has specified that each count of the Indictment has to give the accused a warning of the nature of the crimes with which he is charged and has to set out the factual basis of the charges. The Delalic Indictment Decision restates the standards to be applied here. The Indictment should articulate each charge specifically and separately, and identify the particular acts in a satisfactory manner in order sufficiently to inform the accused of the charges against which he has to defend himself. The Trial Chamber, quoting from a Decision of Trial Chamber I (Prosecutor v. \ukic, Decision on Preliminary Motions of the Accused (No. IT-96-20-T, Tr. Ch. I, 26 Apr. 1996) ("\ukic Preliminary Motions Decision")), concluded that the Indictment against the co-accused Zejnil Delalic for his involvement in the Celebici camp was not defective after "taking into account the summary nature of an indictment and its purpose to very succinctly demonstrate [ C that the accused allegedly committed a crime." Delalic Indictment Decision at p. 11 (quoting \ukic Preliminary Motions Decision at para. 16).
15. The Trial Chamber will apply the same standard in this case, concerning the same Indictment, against this accused. The Indictment describes with sufficient detail the acts, place and time of the crime and therefore complies with Article 18(4) of the Statute and Sub-rule 47(B) of the Rules.
3. Separation of Charges
16. In order to know the exact nature of the crime with which he is charged, the Defence regards it necessary to separate the acts for which the accused, Hazim Delic, is charged as a direct offender from those charges where he is accused as a superior.
17. The Prosecution on the other hand asserts that, given that the evidence in support of each accusation and the fact that each accusation is clearly set out, there is no unfairness in requiring the Defence to prepare for different accusations.
18. The Trial Chamber finds that the Indictment sufficiently informs the accused of the acts for which he is being charged both as a direct participant and as a superior. Moreover, the Indictment does separate the acts for which the accused is being held responsible as a direct participant and as a superior. This Indictment therefore fulfils its purpose in an adequate manner. It informs the accused of all the charges that will be brought against him at the trial so that he can prepare an adequate defence.
4. Incomplete Nature of the Indictment
19. The Defence also contends that this Indictment violates the principle of nullum crimen sine lege, as the counts do not contain in full the legal norms of international humanitarian law which qualify the offence as a crime under such law. The Defence aaserts, therefore, that none of the counts are complete.
20. The Prosecution asserts that the Indictment does not fail to identify the crimes that were committed. According to the Prosecution, reference to the applicable provisions of the Statute is sufficient to provide the Defence with the legal classification of the crime to allow for the adequate preparation of the defence.
21. The Trial Chamber finds that the allegation that this Indictment violates the principle of nullum crimen sine lege does not hold. The Indictment cites the applicable provisions of the Statute which support the alleged criminal responsibility for the acts mentioned in the Indictment. In so doing, the Indictment puts the Defence on notice of the legal classification of the crime and sufficiently enables the accused to prepare his defence.
5. Cumulative nature of the charges
For the foregoing reasons,
THE TRIAL CHAMBER,
PURSUANT to Rule 72,
HEREBY DENIES in all respects the Motion by the Accused Hazim Delic, on Defects in the Form of the Indictment.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this fifteenth day of November 1996.
At The Hague
[Seal of the Tribunal]