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Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 5 July 2000
JL/ P.I.S./ 516-e
DEFENCE MOTION FOR JUDGEMENT OF ACQUITTAL
DISMISSED IN PART AND GRANTED IN PART
On 3 July 2000, Trial Chamber II (Judges Mumba (Presiding), Hunt and Pocar), rendered its decision on a motion on behalf of Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic for judgement of acquittal of certain counts contained in the indictments against them in the Foca case.
The majority of the motion was dismissed, however, the Trial Chamber acquitted Kunarac on a single count of plunder of private property, as a violation of the laws or customs of war and also held that Vukovic had "no case to answer in relation to the allegations made by Witness FWS-48 in support of Counts 33 to 36".
BACKGROUND
This decision follows the motion filed on 20 June 2000 by Kunarac, Kovac and Vukovic for a Motion for Judgement of Acquittal, pursuant to Rule 98 bis of the Rules of Procedure and Evidence, in relation to:
Counts 1, 3, 5 and 7 [in the third amended indictment against Kunarac and Kovac, confirmed on 1 December 1999] and Counts 21, 23, 33 and 35 [in the redacted indictment against Vukovic, filed on 21 February 2000] charging them with torture, as a crime against humanity, and as a violation of the laws or customs of war;
Counts 21 and 25 [in the indictment against Kunarac and Kovac] charging them with outrages upon personal dignity, as a violation of the laws or customs of war;
Count 13 [in the indictment against Kunarac] charging him with plunder of private property as a violation of the laws or customs of war, and Counts 1 to 4 charging him with responsibility as a superior;
The parts of Counts 33, 34, 35 and 36 [in the indictment against Vukovic] in which he is charged with the rape of Witness FWS-48, as a crime against humanity and as a violation of the laws or customs of war and "all criminal acts which [he] is charged for in connection with the Witness FWS-48"; in addition
All three accused moved for acquittal upon the basis that they had been charged cumulatively with different offences arising out of the same alleged facts.
DECISION
The Trial Chamber first held that the test applied in the present case was whether there is "evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis,
‘insufficient to sustain a conviction’".
The Trial Chamber then discussed each of the issues raised in the motion.
(a) Torture:
The Trial Chamber considered that there was sufficient evidence (if accepted) to sustain a conviction for that offence. Thus, the motion for judgement of acquittal on these counts was dismissed.
(b) Outrages upon personal dignity:
Noting that the defence had challenged the availability of this charge on various legal grounds, Trial Chamber II held that "those legal issues cannot be argued in an application under Rule 98bis, but that they may be raised at the conclusion of all the evidence". The Trial Chamber thus rejected the motion so far as it concerned those legal issues at this stage.
(c)(i) Plunder:
Noting that the indictment asserts that Kunarac and other soldiers "looted" the apartment occupied by Witness FWS-183 and the subsequently he "robbed her of all the gold and money she had hidden", the Trial Chamber held that, in its view, "the use of the word plunder in Article 3(e) of the Statute refers to its ordinary meaning of involving unjustified appropriations of property
either from more than a small group of persons or from persons over an identifiable area"…"such as, for example, the Muslim Section of a village or town or even a detention centre". The Trial Chamber went onto say that "[i]t is inappropriate to include within that term a theft from only one person or from only a few persons in the one building. There is no evidence in the
present case which satisfies the interpretation adopted. There will therefore be a judgement of acquittal in favour of Kunarac on Count 13".
(ii) Responsibility as a superior:
The Trial Chamber found that the evidence provided by the Prosecution when "taken as a whole (if accepted) provides a sufficient basis upon which a reasonable tribunal of fact could be satisfied that Kunarac bore superior responsibility in accordance with Article 7.3".
(d) Rape of Witness FWS-48
The defence had argued that, as Witness FWS-48 did not recognise Vukovic in court as the person who raped her, he should be acquitted of all the criminal acts alleged against him involving her evidence.
However, the Trial Chamber held that the real issue was "whether there is any other evidence in the prosecution case which is sufficient to satisfy a reasonable tribunal of fact beyond reasonable doubt that it was Vukovic who raped Witness FWS-48, notwithstanding her failure to identify him in court".
The Trial Chamber stated that it was "not satisfied that the totality of this evidence provides a sufficient basis upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt that it was the accused Vukovic who raped Witness FWS-48. There is therefore no case for the accused Vukovic to answer in relation to those parts of the indictment
based upon the evidence of Witness FWS-48", that being part of Counts 33, 34, 35 and 36.
(e) Cumulative charging
Noting that the defence challenged the right of the prosecution to charge torture as both a crime against humanity, pursuant to Article 5 of the Tribunal’s Statute, and a violation of the laws or customs of war, pursuant to Article 3, the Trial Chamber considered that this issue could not be examined in an application pursuant to Rule 98bis and subsequently rejected the
Motion with regard to this issue.
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