1. Pending before 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 ("the International Tribunal") are "Dario Kordic’s Motion for Judgment of Acquittal", filed by counsel for the accused Dario Kordic on 17 March 2000, with Annexes A-D appended; "The Accused Mario Cerkez’s Motion for Judgement of Acquittal”, filed by counsel for the accused Mario Cerkez on 17 March 2000; and the “Prosecutor’s Response to the Defence Motion for Judgement of Acquittal (confidential) (“the Response”)” with Annexes 1-3 appended, filed by the Office of the Prosecutor ("the Prosecution") on 24 March 2000.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the parties and their oral arguments heard on 30 March 2000,

2. Counsel for Dario Kordic contends that the applicable standard for determining whether the evidence is insufficient to sustain a conviction under Rule 98 bis (B) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), is proof beyond a reasonable doubt, arguing that the Prosecution "must prove guilt as to each element of each offence charged beyond a reasonable doubt."¹ The Defence also contends that "if from credible evidence two reasonable inferences may be drawn, one of guilt and the other of innocence, the latter must be taken."²

3. The Defence for Dario Kordic submits that the Prosecution has failed to present sufficient or credible evidence to establish the responsibility of the accused Dario Kordic under Article 7, paragraphs 1 and 3, of the Statute of the International Tribunal ("Statute"). It requests the Trial Chamber to acquit the accused on all charges against him. The Defence further submits that, because of the insufficiency of the evidence, the Trial Chamber should acquit Dario Kordic of the attacks on various localities and associated crimes found in Count 1 (Persecution); Counts 3-4 (Unlawful attacks on civilians and civilian objects); Counts 7-13 (Wilful killing, murder, causing serious injury, inhumane acts and inhuman treatment); Counts 21-28 (Imprisonment, inhuman treatment, taking of hostages and use of human shields); Counts 37-39 (Destruction and plunder of property); and Count 43 (Destruction of institutions dedicated to religion or education).

4. The Defence for Mario Cerkez joins the submissions of the accused Dario Kordic. In particular, it submits that the accused should be acquitted of the various counts against him either because of lack of evidence or because of the insufficiency of the evidence against him: Count 2 (Persecution); Counts 5-6 (Unlawful attacks on civilians and civilian objects); Counts 14-20 (Wilful killing, murder, causing serious injury, inhumane acts, inhuman treatment); Counts 29-36 (Imprisonment, inhuman treatment, taking of hostages and use of human shields); Counts 40-42 (Destruction and plunder of property); and Count 44 (Destruction of institutions dedicated to religion or education). Alternatively, the Defence requests the Trial Chamber to acquit the accused of all charges under Count 2 for the areas of Novi Travnik and Busovaca, and for the period from April 1992 until 16 April 1993 in relation to the remaining localities named in the Indictment.

5. The Prosecution on the other hand argues that "the Chamber needs only to establish whether as a matter of law there is evidence, were it to be accepted by the Trial Chamber, as to each count charged in the indictment upon which a reasonable Trial Chamber could convict the accused."³

6. The Prosecution submits that there is sufficient and credible evidence on all of the charges against both accused and requests that the Trial Chamber dismiss the motions accordingly. The Prosecution lists those witnesses whom it submits have given evidence on the various Counts in the Indictment in Annexes 1-3 of its Response.⁴

7. In view of the widely divergent positions taken by the Prosecution and the Defence as to the meaning of Rule 98 bis, it is necessary for the Chamber to clarify the standard for determining whether, on a motion for the entry of judgement of acquittal under Rule 98 bis, the evidence is insufficient to sustain a conviction. The Chamber considers it necessary to deal with this issue in some detail.

8. Rule 98 bis provides:

(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).

(B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.

9. Although the Prosecution has referred to the proceedings under this Rule as "no case to answer", using the description to be found in many common law jurisdictions, the Chamber considers that the better approach is not to characterise Rule 98 bis proceedings in that way, lest it be thought that the Rule must necessarily be applied in the same way as proceedings for "no case to answer" in those jurisdictions. It is true that Rule 98 bis proceedings, coming as they do at the end of the Prosecution’s case, bear a close resemblance to applications for no case to answer in common law jurisdictions. However, that does not necessarily mean that the regime to be applied for Rule 98 bis proceedings is the same as that which is applicable in the domestic jurisdictions of those countries. Ultimately, the regime to be applied for Rule 98 bis proceedings is to be determined on the basis of the Statute and the Rules, having in mind, in particular, its construction in the light of the context in which the Statute operates and the purpose it is intended to serve. That determination may be influenced by features of the regime in domestic jurisdictions with similar proceedings, but will not be controlled by it; and therefore a proper construction of the Rule may show a modification of some of those features in the transition from its domestic berth.

10. Motions for acquittal following the close of the Prosecution’s case have been made on several occasions in the International Tribunal, whether under Rule 54 or under Rule 98 bis, which was adopted at the Seventeenth Plenary Session in March 1998.

11. An analysis of the International Tribunal’s jurisprudence shows a consistent pattern in determining motions for acquittal at the close of the Prosecution’s case, not on the basis of a Trial Chamber being satisfied beyond a reasonable doubt of the guilt of the accused on the basis of the Prosecution’s case, but on a different and lower standard. Before examining the International Tribunal’s jurisprudence on this issue, it is important to identify the purpose of Rule 98 bis. The broad purpose of that Rule is to determine whether the Prosecution has put forward a case sufficient to warrant the Defence being called upon to answer it. Implicit in Rule 98 bis proceedings is the distinction between the determination made at the halfway stage of the trial, and the ultimate decision on the guilt of the accused to be made at the end of the case, on the basis of proof beyond a reasonable doubt.

12. In Prosecutor v. Tadic, the Trial Chamber decided that the test was whether there was evidence, were it to be accepted by the Chamber, which could lawfully support a conviction of the accused.⁵

13. In Prosecutor v. Delalic et al., the Trial Chamber concluded that it was "satisfied that, as a matter of law, there is evidence before it relating to each of the offences in question for the accused persons to be invited to make their defence."⁶

14. In Prosecutor v. Blaskic, the Trial Chamber found that it would only dismiss counts of the indictment "if it deemed that the Prosecution has so clearly failed to satisfy its obligation as to the prosecuting party, that, commencing with this stage of the proceedings, it is no longer even necessary to review the Defence evidence regarding the counts covered in the Motion."⁷

15. In Prosecutor v. Kupreskic et al, the Trial Chamber simply rejected a motion for withdrawal of the indictment on the ground that it did not consider it appropriate to apply Rule 98 bis in the circumstances of the case.⁸

16. Those decisions clearly indicate a standard lower than proof beyond reasonable doubt. The only decision of the International Tribunal which arguably adopts the higher standard of proof beyond reasonable doubt is in Prosecutor v. Jelisic.⁹ In that case, the accused pleaded guilty to twelve counts of crimes against humanity and the case proceeded on the single charge of genocide, which the Chamber felt was not established by the evidence led by the Prosecution. In dismissing the genocide charge, the Trial Chamber found that

the Prosecutor has not provided the sufficient proof which would allow us to establish beyond all reasonable doubt that Jelisic planned, incited, ordered, committed, or in any other way participated, in full consciousness, in the even partial destruction of the Bosnian Muslim population, as a national, ethnic, or religious group, and this doubt which must redound to the benefit of the accused. Therefore Goran Jelisic cannot be declared guilty of genocide.¹⁰

17. The Chamber considers that Jelisic, which is, in any event, the subject of an appeal, is to be taken as a decision on its own particular facts, arrived at in the unusual circumstances of that case. If it was purporting to establish a standard of proof, the Trial Chamber in the instant case declines to follow it.

18. An examination of the practice in domestic jurisdictions also indicates that the test that is applied on motions for acquittal at the end of the Prosecution’s case is not the high standard of proof beyond reasonable doubt.

19. In the United Kingdom, the courts have traditionally decided submissions of no case to answer at the end of the Prosecution’s case by determining whether the Prosecution has adduced evidence on which, if accepted, a reasonable tribunal of fact could convict. Generally questions of reliability and credibility of a witness are disregarded in the consideration of no case to answer submissions.¹¹

20. In Canada, a motion for acquittal following the Prosecution’s case is determined on a test as to whether there is "evidence upon which the trier of fact, whether judge or jury, properly instructed, could convict the accused."¹²

21. In New South Wales in Australia

[o]n a submission of no case the judge is concerned only with the question whether there is evidence which is legally capable of leading to a conviction and not with the question whether the evidence is so lacking in weight that a conviction based upon it would be unsafe or unsatisfactory, except where the evidence is so inherently incredible that no reasonable person would accept its truth. The test to be applied by the judge in answering the question whether there is evidence capable in law of supporting a conviction is the same whether the case depends on direct or circumstantial evidence – that is, whether there is evidence with respect to every element of the crime charged which, if accepted, could prove that element beyond reasonable doubt.¹³

22. In the United States, Rule 29 of the Federal Rules of Criminal Procedure provides for a motion for acquittal in the following terms:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

23. United States v. Mariani establishes clearly that the test is whether a reasonable court might convict on the evidence:

When a defendant moves for a judgment of acquittal, the Court must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.¹⁴

24. Civil law jurisdictions do not generally have a procedure equivalent to Rule 98 bis, except for Spanish legislation, which allows the judge to dismiss the jury after the Prosecution’s case, where there is no evidence that could support a conviction of the accused.¹⁵

25. The Chamber considers that the regime applicable to domestic procedures, in which there is a judge as the trier of law and a jury as the trier of fact, is relevant to the International Tribunal’s work, notwithstanding that Trial Chambers consist of Judges who are both triers of law and fact. That is so because International Tribunal Judges must segregate their functions as triers of law and fact, and, in that regard, leave for determination at the end of the case questions of reliability and credibility in the same way as those questions would be left for determination by a jury in domestic systems.

26. The Chamber concludes that the true test to be applied on a motion for acquittal under Rule 98 bis is not whether there is evidence which satisfies the Trial Chamber beyond a reasonable doubt of the guilt of the accused, but rather, whether there is evidence on which a reasonable Trial Chamber could convict. This conclusion is supported by the distinction implicit in Rule 98 bis, and which is also plain to see in domestic jurisdictions with similar procedures. That distinction is between a determination made at the halfway stage in a trial after the close of the Prosecution’s case, as to whether there is a case to answer, and a determination made at the close of the case as to guilt or innocence. It is not necessary to define what is meant by evidence on which a reasonable Trial Chamber could convict; it is sufficient to say that that standard is not met by any evidence; there must be some evidence which could properly lead to a conviction.

27. The Chamber considers that the application of the standard of proof beyond a reasonable doubt at this stage of the case would give rise to certain problems. For example, a ruling that it was satisfied beyond a reasonable doubt of the guilt of the accused, while not making it impossible, would certainly render it more difficult to acquit the accused at the end of the case. Moreover, a finding at the halfway stage of proof of guilt beyond reasonable doubt would oblige the accused to call evidence, and this in a regime where he is under no obligation to do so. This eventuality would certainly raise a problem of consistency with the rights of the accused under the Statute. Further, a finding of proof of guilt beyond reasonable doubt would render it impossible to acquit the accused at the close of the case if he calls no evidence. On the other hand, if the applicable standard were the lower criterion of evidence sufficient to raise the possibility of conviction, it would be perfectly feasible to make such a finding and acquit the accused at the end of the case if he calls no evidence, for the reason that the Trial Chamber is not satisfied beyond a reasonable doubt of his guilt.

28. The test that the Chamber has enunciated – evidence on which a reasonable Chamber could convict – proceeds on the basis that generally the Chamber would not consider questions of credibility and reliability in dealing with a motion under Rule 98 bis, leaving those matters to the end of the case. However, there is one situation in which the Chamber is obliged to consider such matters; it is where the Prosecution’s case has completely broken down, either on its own presentation, or as a result of such fundamental questions being raised through cross examination as to the reliability and credibility of witnesses that the Prosecution is left without a case.

29. The Prosecution referred the Trial Chamber to Annex 1 of the Response for details of the specific evidence on the individual locations and counts of the Indictment. The Prosecution has conceded that it has not produced evidence on certain limited locations referred to in the Indictment and has agreed to amend the Indictment accordingly.¹⁶ According to Annex 1, these locations are as follows:

Count 43: Divjak and Stupni Do
Count 44: Divjak

30. The Indictment states at paragraph 5 that the Croatian Community of Herceg-Bosna (the "HZ H-B") and later the Croatian Republic of Herceg-Bosna (the "HR H-B") consisted of thirty-one municipalities. The Defence for Kordic asserts that evidence has been led only in respect of nine municipalities, namely: Busovaca, Fojnica, Kiseljak, Kresevo, Novi Travnik, Travnik, Vares, Vitez, and Zepce.¹⁷ The Kordic Defence therefore argues that allegations of persecution (Count 1) in respect of the remaining 22 municipalities should be dismissed.¹⁸

31. The Prosecution contends that there is sufficient evidence of the activities of the accused in the overall area of HZ H-B/ HR H-B, as part of an overall plan, and that it is not necessary to amend the Indictment in this respect.¹⁹ The activities of the accused are such that his involvement at the highest levels of the government of the HZ H-B/ HR H-B affects all municipalities.

32. The Trial Chamber finds that there is substantial evidence as to the role of the accused Dario Kordic in the overall government and control of the HZ H-B/ HR H-B. As noted above, in the section discussing the test to be applied, the Chamber is not required at this stage of the proceedings to consider questions of credibility and reliability, except in very limited circumstances which do not apply in this connection. The Trial Chamber notes that paragraph 36 of the Indictment charges the accused with persecution "throughout the HZ H-B/ HR H-B and the municipality of Zenica". This does not mean that the Prosecution is required to produce evidence as to each and every municipality forming part of the HZ H-B/ HR H-B. The Prosecution case relates to the participation of the accused in the highest levels of government, and the Defence should prepare its case accordingly. In particular, the Defence will not be expected to call evidence concerning municipalities about which no evidence has been given.

33. The Defence for Dario Kordic submits that the Prosecution failed to demonstrate that he had a discriminatory intent and that he should be acquitted of persecution under Count 1 for lack of mens rea. The Chamber rejects this submission and finds that, because of the alleged superior rank of the accused within the HZ H-B/ HR H-B, it may be possible to draw inferences as to his state of mind from his conduct and alleged criminal acts.

34. The Defence for Mario Cerkez requests the Trial Chamber to dismiss any charges against him in as far as they relate to the period before 16 April 1993. The Trial Chamber finds that such a partial dismissal of these charges is not appropriate: the Trial Chamber is not required at this stage to decide matters such as when exactly the accused assumed his position as a commander. Provided there is evidence that the alleged crimes occurred within the time-period as specified in the Indictment, i.e. "from April 1992 to approximately August 1993",²⁰ that is sufficient.

35. Applying the test enunciated above, the Trial Chamber finds that there is no or insufficient evidence on Count 39 (plunder) in relation to the following locations:

Merdani
Putis
Ocenici
Kazagici
Behrici
Gromiljak
Visnjica
Nadioci
Pirici
Gacice; and

Count 42 (plunder):

Nadioci
Pirici

Accordingly the accused have no case to answer in respect of these locations on these counts.

36. With the exception of the items mentioned above, the Trial Chamber dismisses the various submissions made by both the Kordic and the Cerkez Defence as to the insufficiency of evidence raised in both the written and oral pleadings. The Chamber notes that extensive written and oral pleadings were made by all parties not only as to the evidence but also as to the applicable law. However, it finds that these are matters for the final judgement in this case.

For the foregoing reasons

PURSUANT TO Rule 98 bis of the Rules of Procedure and Evidence of the International Tribunal,

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

________________________________
Richard May
Presiding Judge

Dated this sixth day of April 2000
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Dario Kordic’s Brief in Support of Motion for Judgment of Acquittal, Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-T, 17 Mar. 2000 ("Kordic Motion to Acquit"), p.1.
2. Ibid., (citing R. May & M. Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha, 37 COLUM. J. TRANSAT’L L. 725, 754 (1999) (citing decisions in the Flick case from the Nuremberg International Military Tribunal)).
3. Prosecutor’s Response to the Defence Motion for Judgement of Acquittal, Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-T, 24 Mar. 2000 ("Prosecution Response"), para. 9 (b).
4. Annexes to Prosecution Response.
5. Decision on Defence Motion to Dismiss Charges, Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, T. Ch. II, 13 Sept. 1996.
6. Order on the Motions to Dismiss the Indictment at the Close of the Prosecution’s Case, Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, T. Ch. II, 18 Mar. 1998.
7. Decision of Trial Chamber I on the Defence Motion to Dismiss, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, T. Ch. I, 3 Sept. 1998.
8. Decision on Motion for Withdrawal of the Indictment against the accused Vlatko Kupreskic, Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16-T, T. Ch. II, 18 Dec. 1998.
9. Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, T. Ch. I, 14 Dec. 1999.
10. Transcript of proceedings in Prosecutor v. Goran Jelisic, Case No. IT-95-10-T at p. 2338.
11. R. v. Galbraith (1981) 1 WLR 1039.
12. Roger E. Salhany, Criminal Trial Handbook, 11-12.06 (1998).
13. Ray Watson, Criminal Law (New South Wales) (1996), s. 2.35740.
14. United States v. Mariani, 725 F. 2d 862, 865 (2d Cir. 1984).
15. S. Andres de la Oliva Santos et al., Derecho Procesal Penal (Ed. Centro de Estudios Ramon Areces, Madrid 1997), pp.905 – 6.
16. Transcript, Thursday, 30 March 2000 at p. 16732.
17. Ibid., at p. 16647.
18. These include Jajce, Skender Vakuf (Dobretici), Kakanj, Kotor Varos, Tomislavgrad, Livno, Kupres, Bugojno, Gornji Vakuf, Prozor, Konjic, Jablanica, Posusje, Mostar, Siroki Brijeg, Grude, Ljubuski, Citluk, Capljina, Neum, Stolac and Trebinje (Ravno).
19. Transcript, Thursday, 30 March 2000 at p. 16734-5.
20. Indictment, paras. 21 and 22.