Case No. IT-01-42-T
Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert
Registrar:
Mr. Hans Holthuis
Decision of:
21 June 2004
PROSECUTOR
v.
PAVLE STRUGAR
_____________________________________
DECISION ON DEFENCE MOTION REQUESTING JUDGEMENT OF ACQUITTAL PURSUANT TO RULE 98 BIS
_____________________________________
The Office of the Prosecutor:
Ms. Susan Somers
Mr. Phillip Weiner
Mr. David Re
Ms. Prashanthi Mahindaratne
Counsel for the Accused:
Mr. Goran Rodic
Mr. Vladimir Petrovic
The capacity of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could. At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt” (emphasis added).19
The issue is often shortly stated as NOT being whether, on the evidence as it stands the accused should be convicted, but whether the accused could be convicted.
How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. (emphasis added).
In reaching this decision there was an express acceptance of earlier words of Lord Widgery CJ in Regina v Barker:22
[…] even if the judge had taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury […] (emphasis added).
It is in this sense that it was said by the High Court of Australia in Doney v The Queen:23
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
The Trial Chamber finds there is not sufficient evidence to allow a reasonable trier of fact to sustain a conviction in respect of Nikola Jovic on Count 2, cruel treatment, or, in respect of the buildings and structures identified in Schedule II of the Indictment other than those listed in the Annex to this decision.
In these respects the Motion is upheld. Otherwise, it is denied.
Done in both English and French, the English text being authoritative.
________________
Judge Kevin Parker
Presiding
________________
Judge Krister Thelin
________________
Judge Christine Van Den Wyngaert
Dated this twenty first day of June 2004
At The Hague
The Netherlands
[Seal of the Tribunal]
|
Schedule II |
Object |
The Arsenal (city walls)202 | ||
Vrata Od Pila (City gate, Pile) and fortification at Pile204 | ||
Stradun | ||
Complex of Franciscan Monastery and Church, HQs of ICRC | ||
Franciscan Monastery-Bell Tower | ||
The Church of St. Saviour | ||
Public fountain (Onofrio Fountain) |
||
|
||
Palace - Od Sigurate 2206 |
||
Palace- Od Sigurate 1 (Festival Palace) (Commercial, Block Placa -Od Sigurate- Prijeko- C. Medovic Street 1)208 |
||
(Residential, Od Puca 16) |
||
Residential, Zlatariceva 6 | ||
Drziceva Poljana Cathedral | ||
St. Vlaho Church (St. Blaise Church) |
||
Residential, Lucarica 6 | ||
Residential, Lucarica 8 | ||
Entrance in front of St. Vlaho church | ||
Residential business, Izmedju Polaca 10 | ||
Residential business, Izmedju Polaca 2 and 4 | ||
Residential business, Cvijete Zuzoric 2 and 10 | ||
A 21 |
307 |
Residential business, Marojice Kaboge 4 |
A 22 |
308 |
Business, Od Puca |
A 23 |
309 |
Business, Izmedju Polaca 5 |
A 24 |
310 |
administration - business, Cvijete Zuzoric 6 |
A 25 |
311 |
Residential business, Marojice Kaboge |
A 26 |
312 |
Residential, Miha Pracata 6 |
A 27 |
313 |
Residential business, Od Puca 8 |
A 28 |
314 |
Serbian Orthodox Church |
A 29 |
315 |
Residential business, Nikole Bozidarevica 1 |
A 30 |
316 |
Residential business, Izmedju Polaca 9, 11 |
A 31 |
317 |
Residential business, Izmedju Polaca |
A 32 |
320 |
Residential, Drziceva Poljana 3 |
A 33 |
321 |
Residential, 4 Buniceva Poljana |
A 34 |
322 |
Fountain |
A 35 |
323 |
Residential, 2 Gunduliceva Poljana |
A 36 |
324 |
Public facility, terrace, chapel, Od Puca Street |
A 37 |
325 |
Residential - commercial, 12 M. Kaboga Street |
A 38 |
327 |
Residential - commercial, M. Pracat Street 7 |
A 39 |
328 |
Mosque |
A 40 |
329 |
Residential, Uska Street 8, Kaboga Street |
A 41 |
330 |
Residential, Marojica 8, Kaboga Street |
A 42 |
331 |
Residential, M. Pracat Street 13 |
A 43 |
332 |
M. Simoni School |
A 44 |
333 |
Residential, Pecarica 2 |
A 45 |
334 |
Residential, M. Pracat Street 8 |
A 46 |
335 |
Residential, Tmusasta Street 1 |
A 47 |
336 |
Residential, M. Pracat Street |
A 48 |
337 |
Residential, M. Pracat Street 12 |
A 49 |
338 |
Residential, Tmusasta Street 2 |
A 50 |
339 |
Residential, Pecarica 8 and 10 |
A 51 |
340 |
Residential, Pecarica 6 |
A 52 |
341 |
Residential, Pecarica 4 |
A 53 |
342 |
Residential, Strossmayer Street 12 |
A 54 |
343 |
Residential, M. Bozidarevic Street 13-15 |
A 55 |
344 |
Residential, Bozidarevic Street 9 |
A 56 |
345 |
Residential, Bozidarevic Street 7 |
A 57 |
346 |
Palace Sorkocevic – Miha Pracata 6 |
A 58 |
347 |
Residential - commercial, Od Puca Street 9 |
A 59 |
348/295211 |
Palace -
Od Puca 11 |
A 60 |
349 |
Residential - commercial, Nikola Bozidarevic Street 3 |
A 61 |
350 |
Residential, Nikola Bozidarevic Street 3 |
A 62 |
351 |
Residential, Nikola Gucetic 2 |
A 63 |
352 |
Residential, Nikola Bozidarevic Street 18 |
A 64 |
353 |
Residential, St. Josip Street 21 |
A 65 |
354 |
Residential, St. Josip Street 19 |
A 66 |
355 |
Residential, St. Josip Street 17 |
A 67 |
356 |
Residential, St. Josip Street 11 |
A 68 |
357 |
Commercial, Nikola Bozidarevic Street 14 |
A 69 |
358 |
Residential, St. Josip Street 14 |
A 70 |
359 |
Residential, Od Domina Street 9 |
A 71 |
360 |
Residential - commercial, Od Domina Street 3 |
A 72 |
361 |
Residential, Hidzina Street |
A 73 |
362 |
Residential, Hidzina Street 2 |
A 74 |
363 |
Residential, Od Domina Street 1 |
A 75 |
364 |
Domino Church |
A 76 |
365 |
Marin Drzic House-Museum |
A 77 |
366 |
Residential - commercial, Siroka Street 5 |
A 78 |
36 |
Palace Martinusic – Sv. Josipa 1 |
A 79 |
368 |
Church of St. Joseph |
A 80 |
369 |
Residential, St. Josip Street 4,6,8 |
A 81 |
370 |
Residential, St. Josip Street 3 |
A 82 |
371 |
Residential, St. Josip Street 5,7,9 |
A 83 |
372 |
Residential - commercial, Nikola Bozidarevic Street 10 and 12 |
A 84 |
390 |
St. Roko Church |
A 85 |
395 |
Residential, Domino Street 6 |
A 86 |
396 |
Residential, Domino Street 8 |
A 87 |
397 |
Residential, Puzljiva Street 2 |
A 88 |
398 |
Residential, Puzljiva Street 10 |
A 89 |
399 |
Residential, Puzljiva Street 3 |
A 90 |
400 |
Residential, Puzljiva Street 5 |
A 91 |
429 |
Luka Sorkocevic Music Education Centre |
A 92 |
439 |
Cinema and Café |
A 93 |
440 |
Rector's Palace213 |
A 94 |
442 |
Sponza Palace |
A 95 |
444 |
Dominican Monastery |
A 96 |
446 |
Annunciation Church |
Part B:
Object | |
B 1 |
City Port214 |
B 2 |
House of Grubisic |
B 3 |
Synagogue216 |
B 4 |
Boskoviceva Street 1217 |
B 5 |
Boskoviceva Street 3218 |
B 6 |
Mr. Srhoj's, house (Od Sigurate 4 or 5)219 |
B 7 |
Shop on the corner of Stradun and Siroka220 |
B 8 |
Building on the corner of Stradun and Cubranoviceva (Insula 8, building No 13)221 |
B 9 |
Residential building in Zlatariceva Street222 |
B 10 |
Birth place of artist Ivo Vojinovic |
B 11 |
Building on the corner of Izmedju Polaca and Nikole Bozidarevica224 |
B 12 |
Izmedju Polaca 12 (IX-13)225 |
B 13 |
Izmedju Polaca 14 (IX-14)226 |
B 14 |
Jadran Restaurant227 |
B 15 |
Residential building on St. Joseph's Street (with shops on the ground floor)228 |
B 16 |
City Bell Tower229 |
B 17 |
Miha Pracata 4 (IX-23)230 |
B 18 |
Nikola Jovic’s shop (Miha Pracata 11)231 |
B 19 |
Lucijana Peko’s house232 |
B 20 |
Northern parts of the city walls/walkways233 |