Case no.: IT-01-47-T

IN TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
9 December 2004

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

__________________________________________

DECISION ON DEFENCE MOTION REGARDING CROSS-EXAMINATION OF WITNESSES BY THE PROSECUTION

__________________________________________

The Office of the Prosecutor:

Mr Daryl Mundis
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

 

TRIAL CHAMBER ll (“Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”);

SEIZED of the “Joint Defence Motion to Bar the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment” filed by counsel for Enver Hadžihasanovic and Amir Kubura (“Defence”) on 8 November 2004 (“Motion ”), in which the Defence requests that the Chamber forbid the Office of the Prosecutor (“Prosecution”) i) to ask direct of indirect questions during its cross-examination to establish the existence of an international armed conflict in Central Bosnia in 1993; ii) to ask direct or indirect questions during its cross-examination to establish that persons may have been unlawfully detained during the period relevant to the Indictment of 26 October 2003 (“the Indictment”; and iii) to amend the Indictment, if necessary, on these points.1

NOTING that, in support of its request, the Defence submits that i) under the Statute of the Tribunal, an accused has the right to be informed in detail of the charges against him and to have the necessary time and facilities to prepare his defence; ii) that the Tribunal’s case-law requires that the Indictment must set out in sufficient detail the essential facts which are charged; iii) that the Prosecution is obliged to present the essential facts on which the charges in the Indictment rely; iv) that the Indictment does not allege that the armed conflict in Central Bosnia was international in nature or that persons were unlawfully detained during that conflict; v) that, at its own initiative, the Prosecution withdrew the allegation of an international armed conflict mentioned in the initial Indictment of 5 July 2001 and that, in addition, it had indicated that it was not seeking to characterise the armed conflict as either international or not international; vi ) that under the pretext of wishing to assist the Chamber to establish the truth, the Prosecution now seeks to change its case once again and to present evidence of the existence of an international armed conflict during the Defence case; vii ) that such a change by the Prosecution at this stage of the trial in respect of the nature of the armed conflict in Central Bosnia or the detention of persons during that conflict entails a significant loss of time and prejudices the rights of the Accused; viii) that the questions asked by the Prosecutor about the nature of the conflict in Central Bosnia and the status of persons deprived of their liberty during that conflict are not consonant with Rule 90(H) of the Rules of Procedure and Evidence of the Tribunal (“the Rules”) and ix) that the Prosecution must not be authorised to amend the Indictment at this state of the proceedings because it has had every opportunity to establish the charges against the Accused.2

NOTING that on 10 November 2004, the Chamber granted to the Prosecution 15 days to respond to the Motion.3

NOTING that in the “Prosecution Response to Joint Defence Motion to Bar the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment, filed on 24 November 2004 (“Response”), the Prosecution requests that the Motion be dismissed by stating that i) it had asked the Defence witness questions about the participation of the army of Croatia in the armed conflict in Central Bosnia only after those witnesses had mentioned the presence of that army in Central Bosnia in response to questions by the Defence or the Chamber ii) because the Defence bases part of its arguments on the general military context of the case, it is appropriate to permit the Prosecution to ask questions about the presence of that army in order to assist the Chamber to understand the context; iii) consequently, the Prosecution is entitled to mention points relating to that general military context when cross-examining a Defence witness if that witness mentions such points during the Defence examination; iv) asking questions about the presence of the army of Croatia in Central Bosnia does not cause time to be lost; v) the Prosecution’s position on the nature of the conflict has not changed because it continues to maintain that it is unnecessary to characterise the nature of the armed conflict in Central Bosnia since the applicable law remains the same whether the nature of the conflict is international or not international; vi) that the Prosecution’s position on the conflict does not mean that the Prosecution is alleging that the nature of the conflict is not international; vii) in respect of persons deprived of their liberty in Central Bosnia, neither the Indictment nor the Prosecution’s pre-trial brief refers to “ Imprisoned and otherwise detained Bosnian Croats and Bosnian Serbs”, “detained”, “imprisonment” and to the places where they were detained “ABiH detention facilities ”, viii) that the expression “persons deprived of their freedom” used by the Defence is the same as “detained” or “detention”; ix) the use of the expressions “detained ” and “detention” does not prejudice the Defence because the Chamber is composed of professional Judges and that x) the Prosecution has the right to use terms such as “detained” and “detention”;4

NOTING that on 26 November 2004, the Chamber dismissed the Defence’s oral request for permission to reply to the Response;5

CONSIDERING that the case-law of the Tribunal considers that “conflicts in the former Yugoslavia have both internal and international aspects”;6

CONSIDERING however that, as Trial Chamber I found in the Brdjanin, case, “SiCt is a fundamental rule of pleading that the indictment must identify each of the essential factual ingredients of the offence charged”7 and that “compliance with it is essential to enable the accused to know the nature of the case against him, as Article 21(4)(a) of the Tribunal's Statute requires”;8 that, consequently, an Indictment must “pleadSsC, as material facts, that the armed conflict was international in character and the basis upon which such an assertion is made”9 when the Prosecution relies on the fact that the nature of such a conflict is international;

CONSIDERING that in the Simic case, the Chamber excluded “evidence presented on the existence of an international armed conflict”10 because neither the Indictment nor the Prosecution’s pre-trial brief provided sufficient detail about the international nature of that conflict11 and the “Defence was not put on notice of this scenario of international conflict which the Prosecution intended to rely upon in the presentation of its case”;12

FURTHER CONSIDERING that the Appeals Chamber has indicated in respect of the amended Indictment of 11 January 2002 in the present case that “?tghe issue as to whether an international armed conflict existed at a particular time or place is a matter for each Trial Chamber to determine based upon the evidence before it in the particular case”13 ; that if “the prosecution wishes to rely upon an international armed conflict, even if only in the alternative, it must plead as a material fact that the armed conflict was international in character and state the basis upon which such an assertion is made ”;14 that “the prosecution should not be permitted to rely upon the imprecision of its current pleading in order to put forward a case that the armed conflict was international in character without a further amendment to its indictment to make this expressly clear”;15

CONSIDERING that the question of the international nature of the conflict in Central Bosnia in 1993 may affect the law applicable to the present case;

CONSIDERING that the amended Indictment of 11 January 2002 in this case states that throughout “all times relevant to this indictment, an armed conflict existed on the territory of Bosnia and Herzegovina”16 and makes no specific mention that the conflict may be international in nature;

CONSIDERING that the Indictment of 26 October 2003, also states that throughout “all times relevant to this indictment, an armed conflict existed in the territory of Bosnia and Herzegovina";17

CONSIDERING that the Indictment does not explicitly mention the existence of an international armed conflict in Central Bosnia in 1993 and that, consequently, the evidence relating to the possibility that the conflict in question was international is not directly related to a specific allegation in the Indictment;

CONSIDERING that, consonant with the Indictment, the Prosecution has not presented evidence which would establish that the nature of the armed conflict in Central Bosnia in 1993 was international when it presented its case during its examination -chief;

CONSIDERING that the Prosecution cannot be permitted to ask Defence witnesses questions during the cross-examination which seek to establish the international nature of the armed conflict in Central Bosnia in 1993;

CONSIDERING however that since the start of the trial, the Defence has referred to the military, political and historical context of the present case;18

CONSIDERING that under the principle that a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it, it is appropriate to permit the Prosecution to make limited reference to the nature of the armed conflict in Central Bosnia in 1993 during its cross-examination of Defence witnesses;

CONSIDERING that the Prosecution may therefore cross-examine a Defence witness if that witness refers to the nature of the armed conflict in Central Bosnia in 1993 during his examination by the Defence; that the evidence thus produced will however be admitted only insofar as it provides further details about the general factual context of this case and cannot serve to establish the international nature of the conflict in respect of the applicable law;

CONSIDERING that in respect of the question whether during the cross-examination of Defence witnesses the Prosecution may refer to possible unlawful detention of persons during the period relevant to the Indictment, the Chamber notes that the Indictment expressly alleges that “?mgainly Bosnian Croats, but also Bosnian Serbs, were unlawfully imprisoned and otherwise detained in ABiH detention facilities ”,19 and refers to the “imprisonment ”20 of persons, to “detained”,21 and to “prisoners”;22

CONSIDERING that although the Indictment does not charge unlawful detention of persons in ABiH facilities, evidence of such detention may however make it possible for the Chamber, composed of professional Judges, to evaluate the context of the case;

CONSIDERING that during the cross-examination of Defence witnesses, the Prosecution may therefore refer to possible unlawful detention of persons in places under the control of the ABiH during the period relevant to the Indictment;

CONSIDERING that in respect of the Defence request that the Prosecution be prohibited from amending the Indictment in respect of the nature of the armed conflict in Central Bosnia in 1993 or the possible unlawful detention of persons, the Chamber observes that it is not presently seized of a request for permission to amend the Indictment in this sense and that it is therefore not appropriate to rule on the matter at this stage;

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 89 and 90(H) of the Rules,

AUTHORISES the Prosecution to cross-examine a Defence witness about the nature of the armed conflict in Central Bosnia in 1993 if that witness refers to the nature of the conflict during his examination by the Defence;

ADDS however that the evidence thus produced will be admitted with limitations in order to provide further details about the general factual context of this case and cannot be used to establish the international nature of the conflict in respect of the applicable law; and

DISMISSES the remainder of the Motion.

 

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

_______________
Jean-Claude Antonetti,
Presiding Judge of Trial Chamber II

Done this ninth day of December two thousand four
At The Hague,
The Netherlands

[SEAL OF THE TRIBUNAL]


1 - Motion, para. 38. On 28 October 2004, the Chamber invited the Defence, if it so wished, to file a submission on the subject of the cross-examination of Defence witnesses by the Prosecution. T.10844.
2 - Motion, paras. 25 - 37.
3 - T. 11488.
4 - Response, paras. 4-16.
5 - T. 12477.
6 - The Prosecutor v Dusko Tadic, Case no. IT-94-1 -AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 77.
7 - The Prosecutor v. Radoslav Brdjanin et Momir Talic, Case no. IT-99-36-T, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001 (“Brdjanin Decision”), para. 48.
8 - Brdjanin Decision, para. 48.
9 - Brdjanin Decision, para. 55.
10 - The Prosecutor v. Blagoj and Simic et al., Case no. IT-95-9-T, Judgement, 17 October 2003 (“Simic Judgment”), para. 120.
11 - Simic, Judgment paras. 114 - 117.
12 - Simic, Judgment para. 119.
13 - The Prosecutor v. Enver Hadzihasanovic et Amir Kubura, Case no. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of Appeal, 21 February 2003 (“Hadzihasanovic Decision”), para. 11 (footnotes omitted).
14 - Hadzihasanovic Decision, para. 11 (footnotes omitted).
15 - Hadzihasanovic Decision, para. 12 (footnotes omitted).
16 - Amended Indictment of 11 January 2002, para. 11.
17 - Indictment, para. 8.
18 - See, for example, the “Pre-Trial Brief of Enver Hadzihasanovic Pursuant to Rule 65ter(F)” of 3 November 2003, paras. 17 - 24; the “Defence Pre-Trial Brief of Amir Kubura Pursuant to Rule 65ter(F)” of 3 November 2003, paras. 10 - 11; and “Additional Clarification on Joint Defence Motion for Judicial Notice of Adjudicated Facts at the Request of the Trial Chamber” filed on 15 March 2004, paras. 9-44.
19 - Indictment, para. 28.
20 - Indictment, para. 41.
21 - Indictment, para. 42(b).
22 - Indictment, para. 42(a).