Case No. IT-95-12-PT
IN THE TRIAL CHAMBER I
Judge Liu Daqun, Presiding
Judge Carmen Maria Argibay
Judge Volodymyr Vassylenko
Mr. Hans Holthuis
27 April 2004
DECISION ON THE DEFENCE MOTION ON THE FORM OF THE AMENDED INDICTMENT
The Office of the Prosecutor:
Mr. Kenneth Scott
Counsel for the accused:
Mr. Zelkjo Olujic
Mrs. Doris Kosta
- Ivica Rajic (“the accused”) is charged with ten (10) counts under both
Article 7(1) and Article 7(3) of the Statute for the International Criminal
Tribunal for the Former Yugoslavia (“the Statute”) on the basis of his alleged
involvement in events that occurred in Stupni Do and Vares, located in the
Vares Municipality, in October and November 1993.
- The accused was first indicted on 23 August 1995. The initial indictment
was confirmed on 29 August 1995. On 13 September 1996, pursuant to Rule 61
of the Rules of Procedure and Evidence (“the Rules”), the Indictment was reconfirmed
and an international arrest warrant was issued against the accused. Ivica
Rajic was arrested in Croatia on 5 April 2003 and surrendered to the United
Nations Detention Unit (UNDU) in The Hague on 24 June 2003.
- At the initial appearance held on 27 June 2003, the accused pleaded not
guilty to all counts of the initial indictment. On 28 August 2003, the Defence
filed a Motion challenging the form of the Indictment (the “First Motion on
the Form of the Indictment”). In its response, dated 4 September 2003,1
the Prosecution announced that it would file a motion for leave to amend the
Indictment in the near future and the Trial Chamber, at the Prosecution’s
request, suspended its decision on the merits of the First Motion on Form
of the Indictment until the Amended Indictment was filed.
- On 23 October 2003, the Prosecution filed its Motion for leave to amend
the Indictment (the “Motion for Leave to Amend the Indictment”). By an order
of 12 January 2004, the Trial Chamber granted leave to the Prosecution to
amend the Indictment and declared the First Motion on the Form of the Indictment
moot.2 The Defence was granted 45 days, from disclosure
of the supporting material concerning the Amended Indictment, to file a preliminary
motion on the form of the Amended Indictment pursuant to Rule 72(A)(2) of
- The Amended Indictment was filed by the Prosecution on 14 January 2004.
The allegations in the Amended Indictment refer to events that occurred in
Stupni Do and Vares from 23 October 1993 until 3 November 1993. The accused
is charged with :
(i) grave breaches of the Geneva Conventions of 1949, punishable under
Article 2 of the Statute, consisting of wilful killing (Count 1), inhuman
treatment, including sexual assault (Count 3), unlawful confinement of a
civilian (Count 5), appropriation of property (Count 7) and extensive destruction
not justified by military necessity and carried out unlawfully and wantonly
(ii) violation of the laws or customs of war, punishable under Article
3 of the Statute, consisting of murder (Count 2), outrages upon personal
dignity, in particular humiliating and degrading treatment, including sexual
assault (Count 4), cruel treatment (Count 6), plunder of public and private
property (Count 8) and wanton destruction of a city or devastation not justified
by military necessity (Count 10).
- On 29 January 2004, the accused pleaded not guilty to all counts of the
Amended Indictment. The Defence filed its Motion on the Form of the Indictment
on 23 February 2004 (the “Motion”). The “Prosecution Response to the Defence
Motion on Form of the Indictment” (the “Prosecution’s Response”) was filed
on 5 March 2004.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of
HEREBY RENDERS ITS DECISION.
1. Arguments of the parties
- The Defence objects to the form of the Amended Indictment on three main
grounds and requests that the Amended Indictment be dismissed or, alternatively,
that the Prosecution be ordered to correct it. The Defence first argues that
it is too vague in a series of aspects and does not establish a causal nexus
between the conduct of the accused and the alleged subsequent harmful effects.
The Defence deems that the Amended Indictment is unclear when referring to
provisions of international humanitarian law on the basis of which the accused
is charged with crimes.4 It also claims that the
nature of the accused’s alleged involvement in the crimes charged against
him is not presented with the required degree of specificity, and the time,
place and victims of, and soldiers or units involved in, each alleged crime
should be further specified.5
- The Defence also maintains that the Amended Indictment improperly charges
the accused concurrently under all modes of liability listed in Article 7(1)
as well as under Article 7(3) of the Statute, a practice that it deems unacceptable.6
Finally, the Defence argues that the allegations presented in the Amended
Indictment are not supported by the supporting material or other documents
disclosed so far.
- The Prosecution responds that the Amended Indictment is sufficiently precise
in view of the requirements laid down in the jurisprudence of this Tribunal
and notes that most arguments presented in the Motion deal with issues related
to disclosure, presentation of evidence or the ultimate conclusions at trial
and sentencing.7 It further argues that cumulative
charging is authorised in the Tribunal’s jurisprudence.8
Finally, it avers that a motion on the form of the indictment is not the proper
venue to contest the decision reached by the confirming judge on the basis
of the supporting material presented, that a prima facie case had been
established by the Prosecution.9
- Article 18 (4) of the Statute of the Tribunal (the “Statute”) provides
that “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 ” and Rule 47(C) of the Rules of Procedure and Evidence (the “Rules”)
provides that “(t(he 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.” This obligation on the Prosecution stems
from the fundamental rights of the accused set out in Articles 21(4) (a) and
(b) of the Statute “to be informed promptly and in detail in a language which
he understands of the nature and cause of the charge against him” and “to
have adequate time and facilities for the preparation of his defence.”
- A clear distinction must be made between the material facts upon which
the Prosecution relies and the evidence by which those material facts will
eventually be proven. While the material facts supporting each charge must
be pleaded in the indictment, the evidence by which those facts are proven
is adduced at trial and not examined at this stage of the proceedings. Likewise,
the Trial Chamber finds, in accordance with the jurisprudence,10
that submissions that the supporting material does not support the charges
are not matters to be dealt with at this stage of the proceedings. As a result,
all the Defence’s arguments claiming that the allegations contained in the
Amended Indictment are not substantiated are rejected.
- It is also settled jurisprudence within the Tribunal that cumulative charging
on the basis of the same set of facts is permissible.11
It is to be allowed in light of the fact that, prior to the presentation of
evidence, it is not possible to determine to a certainty which of the charges
brought against an accused will be proven.12
Cumulative charging under both Articles 7(1) and 7(3) is therefore permissible.
However, the Appeals Chamber has recently held that, “[s]ince Article 7(1)
allows for several forms of direct criminal responsibility, a failure to specify
in the indictment which form or forms of liability the Prosecution is pleading
gives rise to ambiguity.” As a result, the Appeals Chamber deemed that “the
Prosecution must identify precisely the form or forms of liability alleged
for each count as soon as possible and, in any event, before the start of
the trial.”13 The Appeals Chamber further clarified,
that ”this does not, in principle, prevent the Prosecution from pleading elsewhere
than in the indictment – for instance in a pre-trial brief – the legal theory
which it believes best demonstrates that the crime or crimes alleged are imputable
to the accused in law in the light of the facts alleged. This option is, however,
limited by the need to guarantee the accused a fair trial.”14
The Trial Chamber finds that for the accused to be informed of the nature
and cause of the charges against him, as required by Article 21 (4) (a) of
the Statute, the Prosecution needs to further specify - at the latest in its
pre-trial brief - the form(s) of liability that the Prosecution intends to
plead against the accused.
- The degree of specificity with which the Prosecution is required to particularise
the facts in the indictment depends on the nature of the alleged criminal
conduct charged against the accused.15 As far
as the individual responsibility of the accused is concerned, the particular
acts of the accused himself or the particular course of conduct on his part
which are alleged to constitute that responsibility must be clearly identified.
On the other hand, the materiality of such details as the identity of the
victim(s), the place and date of the events for which an accused is alleged
to be responsible, and the description of the event(s), depend on the alleged
proximity of the accused to the event(s).16 In
particular, the Tribunal’s case-law has considered that, in a case based on
superior responsibility, it is sufficient to identify the persons who committed
alleged crimes and the victims, by means of the category or group to which
- Regarding the claimed lack of material facts on the accused’s alleged involvement
in the commission of the crimes charged against him, the Trial Chamber notes
that the Amended Indictment clearly indicates that, at all times relevant
to the Amended Indictment, the accused was commander of the Croatian Defence
Council’s Second Operational Group in the Central Bosnia Operative Zone and
had de jure and de facto command and control of various Croatian
Defence Council Units in his area of responsibility.18
The Amended Indictment further alleges that the crimes were committed by HVO
troops placed under his command and specifies that these forces comprised
“around 200 soldiers, including soldiers from the HVO “Maturice” and “Apostoli”
units as well as HVO soldiers from Kiseljak and Kakanj.”19
The Trial Chamber deems that this information is specific enough for the accused
to be properly informed of the charges expressed against him.
- In respect of the material facts provided on the time and place of each
alleged crime, the Trial Chamber notes that the alleged criminal acts or omissions
were committed within a period of two weeks in two very specific areas. Furthermore,
the Amended Indictment indicates the exact date, and sometimes time of the
day, of the events, as well as the number of victims. It also specifies the
exact time and locations where Muslim men were allegedly detained. The identity
of some victims is provided in two confidential Annexes. The Trial Chamber
however notes a difference in the number of victims referred to in various
paragraphs of the Amended Indictment. Paragraph 16 alleges that ‘… at least
thirty-one Muslim men, women and children’ were killed in Stupni Do on 23
October 1993, while paragraph 17 indicates that ‘( a(ll together, the HVO
attack on Stupni Do resulted in the deaths of at least thirty -seven Muslim
men, women and children.’ Annex 1 of the Amended Indictment also lists 31
victims. The Trial Chamber urges the Prosecution to clarify this apparent
- Regarding the lack of clarity with respect to the provisions of international
humanitarian law referred to in support of the charges, the Trial Chamber
notes that the Amended Indictment refers to specific provisions of the Statute
for each count and that the Tribunal’s jurisprudence does not require that
the elements of each crime charged be set out in the indictment. The Trial
Chamber hence finds that the Amended Indictment is sufficiently precise in
FOR THE FOREGOING REASONS,
THE TRIAL CHAMBER
PURSUANT TO Rule 72 of the Rules
REQUESTS the Prosecution, within thirty days of the date of this
decision, to clarify the apparent inconsistency on the number of victims
as presented under paragraphs 16 and 17.
DENIES the Motion on the remaining grounds.
Done in English and French, the English text being authoritative.
Dated this twenty-seventh day of April 2004,
Judge Lui Daqun,
[Seal of the Tribunal]
1 - “Prosecution Response to Defence Motion on
the Form of the Indictment Pursuant to Rule 72”.
2 - Order concerning the Prosecutor’s Motion seeking Leave to
amend the Indictment, 12 January 2004.
3 - Status Conference of 3 November 2003.
4 - Motion, pp. 1-2.
5 - Motion, p. 3.
6 - Motion, p. 2.
7 - Prosecution’s Response, para. 6.
8 - Prosecution’s Response, para. 14.
9 - Prosecution’s Response, para. 7.
10 - See for instance, The Prosecutor v. Pasko Ljubicic, Case
No. IT-00-41-PT, Decision on the Defence Motion on the Form of the Indictment,
15 March 2002; The Prosecutor v. Radislav Krstic, Case No. IT-98-33-PT,
Decision on Defence Preliminary Motion on the Form of the Amended Indictment,
Counts 7-8, 28 January 2000.
11 - See The Prosecutor v Kupreskic et al, Case no. IT-95-16-PT,
Decision on Defence challenges to the Form of the Indictment, 15 May 1998, Prosecutor
v. Delalic et al. Case no. IT-69-21-T, Decision on Motion by the accused Zejnil
Delalic based on defects in the Form of the Indictment, 2 October 1996, para.
24, referring to Tadic Decision on Defence Motion on Form of Indictment, 14 November
1995 and The Prosecutor v. Kvocka et al. Case no IT-98-30-PT, Decision
on Defence Preliminary motions on the Form of the Indictment, 12 April 1999, para
12 - The Prosecutor v. Stanislav Galic, Judgement, Case
No. IT-89-29-T, 5 December 2003, quoting the Celebici Appeal Judgement,
para. 400 and Kupreskic Appeal Judgement, para. 385.
13 - The Prosecutor v. Krnojelac, Judgement, Case No.
IT-97-25-A, 17 September 2003 (the “Krnojelac Appeals Judgement”), para.
14 - Ibid.
15 - The Prosecutor v. Zoran Kupreskic et al., Judgement,
Case No. IT-95-16-A, 23 October 2001 (the “Kupreskic Appeals Judgement”),
16 - The Prosecutor v. Radoslav Brdanin and Momir Talic,
Decision on Objections by Momir Talic to the Form of the Amended Indictment, Case
No. IT-97-25-PT, 11 February 2000, para. 18. See also The Prosecutor v. Momcilo
Krajisnik, Decision Concerning Preliminary Motion on the Form of the Indictment,
Case No. IT-00-39-PT, 1 August 2000, para. 9.
17 - Prosecutor v. Krnojelac, Case no IT-97-25-PT, Decision
on the Defence preliminary Motion on the form of the Indictment, 24 February 1999,
18 - Amended Indictment, para. 2.
19 - Amended Indictment, para. 12.