Case No.: IT-95-14-R77.2

IN THE TRIAL CHAMBER

Before:
Judge O-Gon Kwon, Presiding
Judge Patrick Robinson
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Order of:
6 September 2005

PROSECUTOR

v.

IVICA MARIJACIC
MARKICA REBIC

_________________________________________________

DECISION ON MOTIONS TO DISMISS THE INDICTMENT AND ORDER ON MOTIONS TO AMEND THE INDICTMENT

_________________________________________________

The Office of the Prosecutor:

Mr. David Akerson

Counsel for Ivica Marijačic:

Mr. Marin Ivanovic

Counsel for Markica Rebic:

Mr. Kresmir Krsnik

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"),

NOTING the Indictment against Ivica Marijačic and Markica Rebic (“the Accused") filed on 10 February and confirmed by Judge Orie on 26 April 2005, charging the Accused with contempt of the Tribunal pursuant to Rule 77(A)(ii) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"),

BEING SEIZED of the "Defendant Ivica Marijačic’s Motion to Dismiss the Indictment Pursuant to Rule 72 of the Rules of Procedure and Evidence,” filed on 14 June 2005, and the “Preliminary Motion of the Accused Markica Rebic to Dismiss the Indictment,” filed on 23 June 2005 (“Motions to Dismiss"),

BEING SEIZED ALSO of the "Motion for Leave to Amend the Indictment," filed by the Office of the Prosecutor ("Prosecution") on 23 June 2005 ("Motion to Amend"), and the "Second Motion for Leave to Amend Indictment," filed by the Prosecution on 29 August 2005 ("Second Motion to Amend"),

NOTING the Order issued by Judge Kwon on 26 August 2005, directing the Registrar to disclose to the Accused the Confidential and Ex Parte "Decision on Prosecutor’s Motion for an Order Directing the Prosecutor to Investigate Potential Contempt concerning Hrvatski List," issued by Judge Orie on 10 December 2004 ("Decision Directing the Prosecutor to Investigate"),

NOTING that the decision to investigate the Accused with a view to the preparation and submission of an indictment against them for contempt was taken by Judge Orie, pursuant to Rule 77(C)(i) of the Rules, in his Decision Directing the Prosecutor to Investigate,

NOTING ALSO the “Prosecution’s Response to Defendant Ivica Marijačic’s Motion to Dismiss the Indictment Pursuant to Rule 72 of the Rules of Procedure and Evidence,” filed on 28 June 2005, the “Prosecution Response to Motion to Dismiss the Indictment filed by Accused Markica Rebic’s [sic]", filed on 7 July 2005, the "Confidential Response of the Accused Markica Rebic to the Prosecutor’s Motion for Leave to Amend Indictment,” filed on 7 July 2005, the “Confidential Reply to Response of the Accused Markica Rebic to the Prosecutor’s Motion for Leave to Amend Indictment,” filed by the Prosecution on 11 July 2005, the “Defendant Ivica Marijačic’s Response to Prosecution Motion to Amend Indictment,” filed on 11 July 2005, the “Confidential Motion of the Accused Markica Rebic for Leave to File a Reply to the Prosecution Response to Motion to Dismiss the Indictment filed by the Accused Markica Rebic,” filed on 14 July 2005, the “Defendant Ivica Marijacic’s Response to the Trial Chamber’s Order of 8 July 2005," filed on 19 July 2005, the Confidential “Defendant Marijacic’s Response to the Trial Chamber’s Order of 26 August 2005, filed on 30 August 2005, the "Comment of the Accused Markica Rebic on the Confidential and Ex Parte Decision on the Prosecutor’s Motion for an Order Directing the Prosecutor to Investigate Potential contempt Concerning Hrvatski List," filed on 1 September 2005, the Confidential "Defendant Ivica Marijačic’s Response to the Trial Chamber’s Order of 26 August 2005," filed on 2 September 2005, and the "Prosecution’s Response to the Comment of the Accused Markica Rebic on the Confidential and Ex Parte Decision on the Prosecutor’s Motion for an Order Directing the Prosecutor to Investigate Potential contempt Concerning Hrvatski List," filed on 5 September 2005,

NOTING FURTHER that the Accused are charged in the Indictment with having "knowingly and wilfully interfered with the administration of justice in knowing violation of an order of a Chamber in three respects by disclosing:

a. the identity of the protected witness;

b. the statement of the witness; and

c. the fact that the witness had testified in non-public proceedings before the Tribunal,"

CONSIDERING that the Motions to Dismiss challenge the Indictment on the basis that (a) it is impermissibly vague as it fails to identify which specific order of a Chamber the Accused are alleged to have violated, (b) the Tribunal lacks personal jurisdiction over the Accused as they are not charged with having committed serious violations of international humanitarian law, nor are they charged pursuant to the Tribunal’s "incidental or ancillary jurisdiction" with having violated a specific order of a Chamber that is addressed to them, (c) the Tribunal lacks subject matter jurisdiction in this case as the relevant Chamber issued no order addressed to the Accused that is identified in the Indictment, (d) only a Chamber has the right to initiate contempt proceedings and the Prosecution is not empowered by the Tribunal’s Statute or Rules to prosecute contempt cases without such initiation by a Chamber,

CONSIDERING ALSO that the Accused Markica Rebic has challenged Judge Orie’s competence as a Duty Judge to issue the Decision Directing the Prosecutor to Investigate,-1- and that this amounts to a challenge to jurisdiction,

CONSIDERING FURTHER that the Appeals Chamber has ruled that "Rule 72(D) is clear and unambiguous in its terms and is inapplicable to proceedings for contempt,"-2- and that, therefore, the arguments raised by the Accused that are framed as challenges to jurisdiction are matters that should be raised at trial,

NOTING that, pursuant to Article 18, paragraph 4, of the Tribunal’s Statute, an indictment must set out "a concise statement of the facts and the crime or crimes with which the accused is charged" and that this must be interpreted in light of the terms of Article 21 of the Statute, which provide that, in the determination of charges against him, the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature and cause of the charges against him,

NOTING ALSO that Rule 47(C) of the Rules requires that an indictment set forth "a concise statement of the facts of the case and of the crime with which the suspect is charged" and that this right translates into an obligation on the Prosecution to plead the material facts underpinning the charges in an indictment,-3-

CONSIDERING that the orders that the Accused are alleged to have violated are material to an understanding of the nature and cause of the charge against them and therefore should be specified in the Indictment,

NOTING that the proposed amended Indictments attached by the Prosecution to its Motion to Amend and its Second Motion to Amend specify three orders allegedly violated by the Accused,

CONSIDERING that it is in the interests of justice, as well as being necessary for the Trial Chamber to properly consider the Prosecution’s Motion to Amend and Second Motion to Amend, for the Prosecution to make available to the Trial Chamber and the Accused copies of the specific orders allegedly violated by the Accused, clarifying which parts of those orders the Accused are alleged to have contravened,

PURSUANT TO Rule 126 bis

HEREBY GRANTS LEAVE to the Accused Markica Rebic to file his “Reply to the Prosecution Response to Motion to Dismiss the Indictment filed by the Accused Markica Rebic,” dated 14 July 2005,

AND, PURSUANT TO Rules 54 and 72, for the foregoing reasons,

GRANTS the Motions to Dismiss in part,

DISMISSES the challenges to jurisdiction raised,

ORDERS that the Indictment shall include reference to the specific order(s) of a Chamber that the Accused are alleged to have violated,

NOTES that, given that the proposed amended Indictment attached by the Prosecution to its Second Motion to Amend aims to cure the lack of specificity found in the original Indictment, the Prosecution is not required to file a further proposed amended Indictment as a consequence of this Decision,

ORDERS the Prosecution to provide to this Trial Chamber and to the Accused copies of the specific order(s) that the Accused are alleged to have violated, along with clarification of which parts of those order(s) the Accused have allegedly breached, by 9 September 2005,

ORDERS the Accused to file any remaining responses to the Prosecution’s Motion to Amend the Indictment and Second Motion to Amend the Indictment, including any arguments based on the clarifications provided by the Prosecution pursuant to this Decision, by 16 September 2005,

NOTES that the Trial Chamber remains seized of the Prosecution’s Motion to Amend and Second Motion to Amend, which will be considered following receipt of any further responses from the Accused as ordered above.

Done in English and French, the English text being authoritative.

__________________________
Judge O-Gon Kwon
Presiding

Dated this sixth day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]