IN THE TRIAL CHAMBER

Before: Judge Richard May, Presiding

Judge Mohamed Bennouna

Judge Patrick Robinson

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 2 March 1999

 

PROSECUTOR

v.

DARIO KORDIC
MARIO CERKEZ

__________________________________________

DECISION ON DEFENCE APPLICATION
FOR BILL OF PARTICULARS

__________________________________________

The Office of the Prosecutor

Mr. Geoffrey Nice
Mr. Rodney Dixon

Counsel for the accused

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr., and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez

 

I. INTRODUCTION

Pending before this Trial 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 ("International Tribunal") is the motion "Defense Application for Bill of Particulars" ("the Motion") filed by counsel for the accused, Mario Cerkez ("Defence") on 22 January 1999, together with the "Prosecutor’s Response to Defence Application for Bill of Particulars" filed by the Office of the Prosecutor ("Prosecution") on 5 February 1999.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties heard on 16 February 1999,

HEREBY ISSUES ITS WRITTEN DECISION.

 

  1. DISCUSSION

A. Arguments of the Parties

 

  1. In its Motion, the Defence for Mario Cerkez submits that, pursuant to Article 21, paragraph 4(a), and Article 18, paragraph 4, of the Statute of the International Tribunal ("Statute") and Rule 47(C) of the Rules of Procedure and Evidence ("Rules"), an indictment must allege in detail the facts supporting each element of the offence charged. The Defence alleges that the Amended Indictment contains insufficient factual detail in support of the charges against the accused, thereby rendering the charges therein fatally defective.
  2. In particular, the Defence submits that the Amended Indictment has failed to set forth any factual allegations supporting the Prosecution’s legal conclusion regarding the existence of an international armed conflict. The Defence further states that the Amended Indictment fails to identify with sufficient detail in respect of each offence charged the time, alleged victims, participants in the alleged events and the role of the accused in the underlying conduct.
  3. The Defence submits that the Amended Indictment fails to allege the proper mens rea requirement for each offence. The Defence further contends that the Prosecution, instead of specifying the facts underlying the charges in the Amended Indictment, has utilised cumulative and unjustifiably expansive arguments in respect of the charges.

4. The Defence requests that in the alternative to the foregoing requests, or in any event, if the Prosecution fails to provide the specified particulars, the Amended Indictment should be dismissed in its entirety.
  1. In response, the Prosecution submits that it has fulfilled its obligations under the Statute and the Rules, as the Amended Indictment sufficiently notifies the accused of the crimes with which he is charged and the factual bases for those crimes. The Prosecution further notes its "Response to Defence Form of the Indictment Motion #2 to Strike the Amended Indictment for Vagueness" filed on 5 February 1999 in response to a similar motion by the co-accused, Dario Kordic, and incorporates the arguments set forth therein. The Prosecution concludes that the Defence has failed to establish the necessary grounds to justify amendment or dismissal of the Amended Indictment.

    2.  

    B. Analysis

  2. With respect to the Defence submissions that the Amended Indictment is impermissibly vague in that it fails to identify with specificity (i) the facts supporting each element of the offences charged; (ii) the conduct of the accused giving rise to criminal liability in respect of each charge; (iii) the identity of the accused’s alleged accomplices and victims; (iv) details as to when the criminal acts underlying the charges in the Amended Indictment are alleged to have occurred; and (v) sufficient facts in support of the existence of an international armed conflict, the Trial Chamber reiterates the general position reflected in prior decisions of the International Tribunal that, pursuant to Rule 47(C) of the Rules and Article 18, paragraph 4, of the Statute, what is required at this stage is "a concise statement of the facts of the case and of the crime with which the suspect is charged".
  3. The Trial Chamber has reviewed carefully the arguments of the Defence and finds that the Amended Indictment meets these requirements.
  4. In response to the Defence request that the Prosecution be ordered to specify the mens rea element in relation to each offence, the Trial Chamber notes that the indictment need not identify the precise legal elements of each crime since all that is required under Article 18, paragraph 4, is a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute.
  5. With respect to the Defence request that the Prosecution be ordered to strike surplus arguments from the Amended Indictment, the Trial Chamber is unable to identify these surplus arguments and finds the request wholly unmeritorious.

 

  1. DISPOSITION

 

For the foregoing reasons

PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of the International Tribunal,

THE TRIAL CHAMBER DISMISSES the Defence Application for Bill of Particulars.

 

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

_______________________________

Richard May

Presiding

Dated this second day of March 1999

At The Hague

The Netherlands

[Seal of the Tribunal]