IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
12 April 1999

PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC

___________________________________________________________

DECISION ON DEFENCE PRELIMINARY MOTIONS
ON THE FORM OF THE INDICTMENT

____________________________________________________________

The Office of the Prosecutor:

Mr. Grant Niemann
Mr. Michael Keegan
Mr. Kapila Waidyaratne

Counsel for the Accused:

Mr. Krstan Simic, for Miroslav Kvocka
Mr. Zarko Nikolic, for Milojica Kos
Mr. Toma Fila, for Mlado Radic
Mr. Simo Tosic, for Zoran Zigic

 

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") are four preliminary motions alleging defects in the form of the Amended Indictment confirmed on 9 November 1998 in this case, namely: the "Defence Preliminary Motion" filed by counsel for the accused, Mlado Radic (the "Radic Defence") on 15 January 1999, the "Defence Response to Prosecutor’s Reply to Defence Preliminary Motion" filed by the Radic Defence on 19 February 1999 and the "Addendum to Defence Response to Prosecutor’s Reply to Defence Preliminary Motion" filed by the Radic Defence on 3 March 1999; "A Preliminary Appeal to the Amended Indictment Against Miroslav Kvocka" filed by counsel for the accused, Miroslav Kvocka (the "Kvocka Defence") on 25 January 1999; the "Defence Preliminary Motion on the Form of Amended Indictment" filed by counsel for the accused, Milojica Kos (the "Kos Defence") on 1 February 1999; and the "Defence Preliminary Motion on the Form of Amended Indictment" filed by counsel for the accused, Zoran Zigic (the "Zigic Defence") on 1 February 1999, (collectively "the Defence"), together with the "Prosecutor’s Reply to the Defence’s Preliminary Motion," filed by the Office of the Prosecutor ("Prosecution") on 28 January 1999, the "Prosecutor’s Reply to the Defence’s Preliminary Appeal to the Amended Indictment Against Miroslav Kvocka" filed by the Prosecution on 8 February 1999, and the "Prosecutor’s Reply to the Defence’s Preliminary Motions to the Amended Indictment Against Milojica Kos and Zoran Zigic" filed by the Prosecution on 15 February 1999.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties heard on 9 March 1999,

HEREBY ISSUES ITS WRITTEN DECISION.

 

II. DISCUSSION

A. Vagueness and imprecision in the indictment

1. Arguments of the Parties

(a) Mlado Radic

1. The Radic Defence submits that an indictment must meet the following minimum requirements under the Statute of the International Tribunal ("Statute") and the Rules of Procedure and Evidence of the International Tribunal ("Rules") as set out in Prosecutor v. Blaskic which held that an indictment should: (i) notify the accused in a summary manner as to the nature of the crimes with which he is charged and present the factual basis for the accusations; and (ii) contain certain information which permits the accused to prepare his defence (namely, the identity of the victim, the place and approximate date of the alleged crime and the means used to perpetrate it) in order to avoid prejudicial surprise1.

2. With respect to the allegations underlying Counts 14 to 17 of the Amended Indictment, the Radic Defence requests that the Prosecution be required to specify more precisely the times when the crimes are alleged to have been committed. The Radic Defence claims that in the absence of a narrow time-frame for the crime, the accused is effectively prevented from mounting an alibi defence under Rule 67(A)(ii)(a). The Radic Defence also seeks clarification as to whether the charges in Counts 14 to 17 are charged in the alternative or cumulatively, noting that in the original indictment, the same charges were presented in the alternative.

3. The Radic Defence submits that the Amended Indictment contains terms which render the allegations less precise, such as "including" and "between". The Radic Defence requests that the Prosecution be required to delete these terms from the Amended Indictment. Also, in several of the paragraphs of the Amended Indictment containing factual allegations underlying the charges, the Prosecution has employed the formulation "and/or", between two alleged acts or courses of conduct, without specifying which of the accused is responsible for which of the two or more alleged acts or courses of conduct. The Radic Defence objects to the use of this formulation as it does not permit the accused to know precisely the conduct with which he is charged.

4. The Radic Defence requests that the Prosecution be ordered to amend the Amended Indictment further to include details as to the time, place, identity of victim and manner in which each crime was committed.

5. The Radic Defence further submits that the accused’s command responsibility is predicated on his alleged position as a "shift commander" of the Omarska camp during the time-period relevant to the Amended Indictment. Accordingly, the Prosecution must specify, with respect to each crime charged against the accused, the shift during which the crime is alleged to have been committed and whether the accused was in command during that shift.

(b) Miroslav Kvocka

6. The Kvocka Defence argues that an indictment should conform to the standards set forth in the Blaskic case which held that an indictment should: (i) notify the accused in a summary manner as to the nature of the crimes with which he is charged and to present the factual basis for the accusations; and (ii) contain certain information which permits the accused to prepare his defence (namely, the identity of the victim, the place and approximate date of the alleged crime and the means used to perpetrate it) in order to avoid prejudicial surprise.

7. The Kvocka Defence submits that the Amended Indictment in this case contains insufficient factual detail regarding the crimes with which the accused is charged. For example, in relation to Counts 4 and 5, charging the accused with murder under Articles 3 and 5 of the Statute, the Kvocka Defence asserts that the Prosecution has not identified the time of the alleged offences, the participants, any witnesses or the victims. The Kvocka Defence further notes that the Amended Indictment does not specify the time-periods of the crimes with precision, instead employing terms such as "approximately" to modify the time-periods specified. In contrast to the lack of specificity set out in the charges against the accused, Miroslav Kvocka, the Kvocka Defence notes the relative precision of the framing of charges against one of the co-accused, Zoran Zigic.

8. The Kvocka Defence requests that the Prosecution be ordered to amend the Amended Indictment further to include precise details as to the time and place of each alleged offence, the identity of the victim and the means of perpetration.

(c) Milojica Kos

9. The Kos Defence submits that the factual allegations underlying the charges in Counts 1-3 are very general and do not provide any details as to the participation of the accused in the acts alleged. The Kos Defence further submits that paragraph 26, which alleges that the accused, Milojica Kos, while working as a shift commander at the Omarska camp, participated in daily mistreatment of the detainees, contains insufficient factual support and is contradictory given that, as a shift commander, the accused probably would not have been in the camp on a daily basis. The Kos Defence also cites other instances in the Amended Indictment where the temporal scope of the charges does not take into account the shift nature of the accused’s work.

10. The Kos Defence requests that the Prosecution be ordered to amend the Amended Indictment further to include details as to the time and place of the alleged offences, the identity of the victims and the manner in which the crimes were perpetrated.

(d) Zoran Zigic

11. The Zigic Defence submits that the factual allegations underlying the charges in Counts 1-3, 6, 7 and 11-13 (paragraphs 22, 23, 28, 31 and 34 of the Amended Indictment) against the accused are very general and do not provide any details as to the participation of the accused in the acts alleged. The Zigic Defence requests information as to when and where the alleged acts took place, details as to the manner in which the crime was perpetrated, and the identity of the victims. The Zigic Defence argues that, in the absence of precise allegations regarding the time at which the offences are said to have occurred, the accused is unable to employ an effective alibi defence.

(e) Prosecution

12. The Prosecution submits that the judicial practice of the International Tribunal in relation to the standards it must meet in an indictment pursuant to Article 18, paragraph 4, of the Statute and Sub-rule 47(C) of the Rules is well established and that the requirements have been fully met in this instance. The Prosecution further notes that it has provided the Defence with all the supporting materials to the original indictment and the Amended Indictment, including witness statements and other documents.

13. In response to the Defence requests for further details regarding the commission of the crimes alleged, the Prosecution, citing previous Decisions of the International Tribunal, argues that this level of detail in an indictment is not required. In this respect, the Prosecution submits that, given the nature of the crimes alleged in this case, it is not required to provide details as to the identity of the victims in an indictment. Similarly, it need provide no more specific details as to the location and time-period of the crimes alleged.

2. Analysis

14. Although Article 18, paragraph 4, of the Statute and Sub-rule 47(C) of the Rules do not appear to set a high threshold as to the level of information required in an indictment, a concise statement of the facts of the case and of the crime with which the suspect is charged being all that is needed, there is a minimum level of information that must be provided by the indictment; there is a floor below which the level of information must not fall if the indictment is to be valid as to its form. This is still an accurate statement of the law even when account is taken of the valid distinction drawn in the Decision on the Defence Preliminary Motion on the Form of the Indictment in Prosecutor v. Krnojelac ("Krnojelac Decision as to Form") "between the material facts upon which the prosecution relies (which must be pleaded) and the evidence by which those material facts will be proved (which must be provided by way of pre-trial discovery)"2.

15. In the Krnojelac Decision as to Form, that Trial Chamber found that "an indictment must contain information as to the identity of the victim, the place and the approximate date of the alleged offence and the means by which the offence was committed"3. The Decision then cites several cases from common-law jurisdictions as to the particularity with which a criminal offence must be pleaded4.

16. While allusions to the practice in civil- and common-law jurisdictions are helpful, the sole determinant of the law applied by the International Tribunal is its Statute and Rules; moreover, the influence of domestic criminal law practice on the work of the International Tribunal must take due account of the very real differences between a domestic criminal jurisdiction and the system administered by the International Tribunal.

17. The Trial Chamber finds that as a general rule, the degree of particularity required in indictments before the International Tribunal is different from, and perhaps not as high as, the particularity required in domestic criminal law jurisdictions. The mandate of the International Tribunal under Article 1 of its Statute is to "prosecute persons responsible for serious violations of international humanitarian law . . . in accordance with the provisions of the present Statute". The massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes – at any rate, the degree of specificity may not be as high as that called for in domestic jurisdictions. However, there may be cases in which more specific information can be provided as to the time, the place, the identity of victims and the means by which the crime was perpetrated; in those cases, the Prosecution should be required to provide such information. The Trial Chamber understands and accepts the findings in the Krnojelac Decision as to Form as to the degree of particularity required in an indictment5 subject to the above-mentioned qualification.

18. However, the Trial Chamber finds that it is reasonable to require the Prosecution, depending on the particular circumstances of each case, to provide more specific information, if available, as to the place, the time, the identity of the victims and the means by which the crime was perpetrated.

19. Thus, in this case, in respect of the allegations raised by the Defence as to imprecision in time, the Prosecution is directed to delete the word "about" in the phrase "between about"whenever it appears in the Amended Indictment.

20. In respect of the allegations raised by the Defence as to imprecision in the pleadings relating to the location of the crimes alleged, the Trial Chamber finds that there is sufficient information regarding the location of the alleged offences in the Amended Indictment.

21. In respect of the request for particulars of witnesses to the crimes alleged, raised by the Kvocka Defence, the Trial Chamber finds that there is no legal basis for requiring further information about witnesses at this stage of the proceedings.

22. In respect of the allegations by the Kvocka Defence as to lack of information regarding the participation of others in the crimes, the Trial Chamber notes the finding in the Krnojelac Decision as to Form that, if the Prosecution is unable to identify those directly participating in the alleged criminal acts by name, "it will be sufficient for it to identify them at least by reference to their ‘category’ (or their official position) as a group"6. The Prosecution is directed to provide information that would allow for the identification of the other participants in the crimes alleged against this accused.

23. As to the Defence request for more specific information regarding victims of the crimes alleged, the degree of detail that is required presents a special difficulty, and it is in this area that the contrast between a domestic criminal law system and an international criminal tribunal is most pronounced. There can be little doubt but that the identity of the victim is information that is valuable to the Defence in the preparation of their cases. But the massive scale of the crimes alleged before this International Tribunal does not allow for specific naming of victims. However, if the Prosecution is in a position to do so, it should. The Prosecution is hereby directed to identify, to the extent it is in a position to do so, the names of the victims of the crimes alleged.

24. In respect of the Defence request for details as to the means by which the crime is perpetrated, the Trial Chamber finds that, where the Prosecution is in a position to do so, it should identify the method of commission of the crime, or the manner in which it was committed.

25. In response to the request by the Radic Defence that the Prosecution be required to clarify whether Counts 14 to 17 of the Amended Indictment are pleaded in the alternative or cumulatively, the Prosecution is entitled to plead the indictment in this form and therefore there is no basis for granting this request. Alternative charging is permissible and cumulative charging is also permissible in certain circumstances. The Defence will have to prepare their cases in respect of all the charges, irrespective of whether they are charged in the alternative or cumulatively.

26. As to the objection by the Radic Defence to the use of the term "including" in the Amended Indictment, there will be certain situations in which its use is acceptable and others in which it will not be. The Prosecution is directed, in respect of those parts of the Amended Indictment where the term is used to signify some of the victims of a crime, to list, to the extent possible, additional names of victims. The Radic Defence also objects to the use of the term "and/or" in the Amended Indictment. The Trial Chamber finds that this is essentially an evidentiary matter and that it is best left to be determined at trial, on the basis of the evidence presented.

27. As to the allegations raised by the Kos Defence that the Amended Indictment contains insufficient factual support relating to the responsibility of this accused as a shift commander, pursuant to Article 7, paragraph 3, of the Statute, the Trial Chamber finds that this is a matter for determination at trial.

B. Details as to the acts of the accused or course of conduct leading to criminal liability pursuant to Article 7, paragraph 1, or Article 7, paragraph 3 – Miroslav Kvocka and Mlado Radic

1. Arguments of the Parties

28. The Kvocka Defence argues that Counts 1-5 and 8-10 in the Amended Indictment provide insufficient facts in support of the two separate grounds of individual criminal responsibility on which liability of the accused, Miroslav Kvocka, is predicated pursuant to Article 7, paragraph 1, and paragraph 3, of the Statute.

29. The Kvocka Defence notes that Miroslav Kvocka’s command responsibility for certain of the crimes alleged in the Amended Indictment arises out of his alleged role as commander and then deputy commander of the camp. In this regard, the Kvocka Defence submits that the Prosecution has failed to specify the role of the accused, as a commander, in relation to the crimes alleged.

30. The Radic Defence contends that the Amended Indictment is defective in that it fails to allege in sufficient detail the facts in support of the charges, including the acts or course of conduct of the accused giving rise to his individual criminal liability under both Article 7, paragraph 1, and Article 7, paragraph 3, of the Statute. In this respect, the Radic Defence notes that those Counts relating solely to the accused, Zoran Zigic, are framed in more detail than Counts involving the accused, Mlado Radic.

31. In response to both sets of allegations, the Prosecution submits that the Amended Indictment contains sufficient allegations of the accused’s responsibility under both Article 7, paragraph 1, and paragraph 3, of the Statute.

2. Analysis

32. In considering this complaint, the Trial Chamber finds instructive the statement in the Krnojelac Decision as to Form that "what must clearly be identified by the prosecution so far as the individual responsibility of the accused in the present case is concerned are the particular acts of the accused himself or the particular course of conduct on his part which are alleged to constitute that responsibility"7. Merely to allege, as is done throughout the Amended Indictment, that the accused participated in certain crimes without identifying the specific acts alleged to have been committed by the accused does not meet the requirement for a "concise statement of the facts". For example, in paragraphs 22 and 23 of the Amended Indictment, it is alleged that the accused "participated" in persecutions such as murder and torture. The Prosecution is hereby directed to provide more information as to the specific acts of the accused, Mlado Radic and Miroslav Kvocka, that would establish their criminal responsibility under Article 7, paragraph 1, and Article 7, paragraph 3.

33. As for the argument advanced by the Kvocka Defence that the Prosecution has failed to specify the role of the accused as a commander in relation to the crimes alleged, the Trial Chamber finds that this is an issue to be determined at trial on the basis of the evidence presented.

C. Amended Indictment must allege the required elements of Article 7, paragraph 3, and other crimes – Mlado Radic and Miroslav Kvocka

1. Arguments of the Parties

34. The Radic Defence asserts that the Amended Indictment fails to allege the legal elements required to establish Mlado Radic’s individual criminal responsibility pursuant to Article 7, paragraph 3, of the Statute. It further argues that the Prosecution must allege the required elements of the crimes charged in the indictment. For example, in Counts 14 and 15, the accused, Mlado Radic, is charged with torture and rape as crimes against humanity. Yet the factual allegations supporting these counts do not allege that the crimes were widespread and systematic, which elements, the Radic Defence argues, are required to establish the offence of a crime against humanity.

35. The Kvocka Defence asserts that the Amended Indictment fails to allege the elements required to demonstrate Miroslav Kvocka’s individual criminal responsibility pursuant to Article 7, paragraph 3, of the Statute.

2. Analysis

36. There is no learning that an indictment before the International Tribunal must allege the legal elements of a particular crime. Such an approach is not supported by the jurisprudence of the International Tribunal. The Prosecutor is not conducting a tutorial when she drafts an indictment. If the indictment fails to allege a particular element of a crime, for instance, the widespread and systematic nature of a crime under Article 5 of the Statute, the indictment is not defective for that reason. The indication in the Amended Indictment of the Article of the Statute that is contravened, or pursuant to which an accused is alleged to have incurred individual criminal responsibility, incorporates by reference all the elements set out therein.

D. Disagreement with facts as alleged in the Amended Indictment – Miroslav Kvocka, Milojica Kos and Zoran Zigic

1.     Arguments of the Parties

37. The Kvocka Defence alleges that the Amended Indictment is defective in relation to the time-period during which the accused is alleged to have been in the Omarska camp. It submits that evidence disclosed by the Prosecution does not support the allegations in the Amended Indictment.

38. Both the Kos Defence and the Zigic Defence object to the background section of the Amended Indictment (paragraphs 1-17), which describes the context in which the crimes are alleged to have occurred. The Kos Defence and the Zigic Defence both allege that the Prosecution has mischaracterised the nature of the conflict as it existed in the Prijedor municipality and its surrounding areas during the time-period relevant to the Amended Indictment.

39. The Prosecution submits that this request amounts to nothing more than disagreement with the facts as alleged and should be resolved at trial.

2. Analysis

40. The Trial Chamber finds that a challenge of this nature, based on disagreement with the facts as alleged, is not appropriately raised in a preliminary motion on defects in the form of the indictment. Disputes as to issues of fact are for determination at trial. Similar objections raised in other cases before this International Tribunal have been dismissed8.

E. Facts linking the accused, Mlado Radic and Miroslav Kvocka, to the Keraterm and Trnopolje camps

1.     Arguments of the Parties

41. Both the Radic Defence and the Kvocka Defence submit that the Amended Indictment is devoid of facts linking the accused in any way, either by their status or actions, to the events alleged to have occurred at the Keraterm and Trnopolje camps. It further alleges that the original indictment against Mlado Radic and Miroslav Kvocka contained no references to the events at the Keraterm and Trnopolje camps.

42. In respect of the objection raised by the Kvocka Defence, the Prosecution would appear to argue that, although paragraph 23 of the Amended Indictment, which underlies Count 1 against the accused, refers to the Keraterm and Trnopolje camps, Miroslav Kvocka is only charged in his capacity as camp commander and then deputy commander of the Omarska camp. The Prosecution states:

The supporting paragraphs of the Amended Indictment indicate that widespread persecution of non-Serbs occurred in the municipality of Prijedor, including within three detention camps established in the Prijedor area: Omarska, Keraterm and Trnopolje. . . . As part of that wave of persecution, the Amended Indictment clearly charges Kvocka with alleged crimes committed in his role as camp commander and deputy camp commander at the Omarska Prison Camp.9

2. Analysis

43. The Trial Chamber finds that this matter is best left for resolution at trial, as this is essentially a question of evidence. An objection of this nature is not properly raised at this stage of the proceedings.

    F. Cumulative Charges – Mlado Radic and Milojica Kos

1. Arguments of the Parties

44. The Kos Defence submits that the charges contained in Counts 1-5 and 8-10 are cumulative as they relate to the same set of underlying facts. Similarly, the Radic Defence contends that the charges in Counts 1-3, 4 and 5, 8-10 and 14-17 are cumulated, in that they arise out of the same criminal conduct. It submits that cumulative charging violates substantive norms in both civil- and common-law systems.

45. The Radic Defence contends that the charges against the accused in Counts 3 and 17 of the Amended Indictment are identical and accordingly they should be struck out.

46. In response to the allegations that certain of the charges in the Amended Indictment are improperly cumulated, the Prosecution cites the judicial practice of the International Tribunal which, it contends, permits cumulative charging at the pleading stage and further permits cumulation of charges where the Articles of the Statute are designed to protect different values and when each requires proof of an additional element. The Amended Indictment charges the accused, Milojica Kos and Mlado Radic, with violations of Articles 3 and 5 of the Statute which, in the Prosecution’s submission, require different elements of proof and protect different values. The Prosecution further denies the allegation that Counts 3 and 17 are identical and amount to inadmissible cumulation of charges. The Prosecution argues that Count 17 of the Amended Indictment charges Mlado Radic with individual criminal responsibility for the rape of witness A and the sexual assault of witness F under Article 7, paragraph 1, of the Statute, whereas the reference to these acts in paragraph 27 of the Amended Indictment "apply to a finding of liability under Article 7(3) as pleaded"10.

2.   Analysis

47. In relation to the argument that certain of the charges in the Amended Indictment are cumulative, the Trial Chamber notes that cumulative charging has been permitted in the practice of the International Tribunal11. The Trial Chamber further notes that the Prosecution may be justified in bringing cumulative charges when the Articles of the Statute referred to are designed to protect different values and when each Article requires proof of a legal element not required by the others. The Trial Chamber finds that both these requirements are met here, where the charges alleged to be cumulated fall under Article 3 and Article 5 of the Statute.

    G. Improper cumulation of criminal responsibility under Article 7, paragraph 1, and Article 7, paragraph 3, for the same underlying criminal acts – Mlado Radic, Miroslav Kvocka and Milojica Kos

1. Arguments of the Parties

48. The Radic Defence, the Kvocka Defence and the Kos Defence all contend that an accused may not be charged with individual criminal responsibility pursuant to both Article 7, paragraph 1, and Article 7, paragraph 3, of the Statute, in relation to the same underlying criminal act.

49. The Prosecution submits that an accused may be charged with and convicted of individual criminal responsibility pursuant to both Article 7, paragraph 1, and Article 7, paragraph 3, in relation to the same criminal act.

2. Analysis

50. A review of the jurisprudence of the International Tribunal and of the International Criminal Tribunal for Rwanda reveals that an accused may be charged either alternatively or cumulatively under Article 7, paragraph 1, and paragraph 3. For example, in its Judgement in Prosecutor v. Delalic et al., the Trial Chamber found that "in practice there are factual situations rendering the charging and convicting of the same person under both Articles 7(1) and 7(3) perfectly appropriate"12. In the Amended Indictment, the accused are charged, in relation to certain Counts, with individual criminal responsibility in respect of both Article 7, paragraph 1, and Article 7, paragraph 3, and it will be for the Trial Chamber to determine, on the basis of the evidence presented at trial, whether the charges are substantiated.

    H. Motion to Sever - Zoran Zigic

1. Arguments of the Parties

51. The accused, Zoran Zigic, also seeks to sever his trial from that of the three co-accused pursuant to Rule 82(B) of the Rules, arguing that he has no connection with his co-accused.

52. The Prosecution contends that granting Zoran Zigic a separate trial would be contrary to the interests of justice. The Prosecution submits that the four accused were properly joined pursuant to Rule 48 of the Rules, as the acts alleged against them in the Amended Indictment form part of the same "transaction."

53. The Prosecution notes that the accused has neither provided evidence nor proffered argument as to why he should be entitled to severance under Sub-rule 82(B). Indeed, the Prosecution contends that a grant of severance would be contrary to the interests of justice as it would necessitate a delay in one of the two resulting trials, thereby jeopardising one or more of the accused’s right to an expeditious trial. Similarly, severance would result in considerable duplication of evidence, to the detriment of witnesses, who would be forced to testify in two separate proceedings, and the overall functioning of the International Tribunal.

2. Analysis

54. In respect of Zoran Zigic’s request for a separate trial, the Trial Chamber notes the absence of reasoned support for this request, other than to state that the accused has no connection to his co-accused.

55. The four accused in this trial were charged in a single indictment pursuant to Rule 48 of the Rules which provides: "Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried". Rule 2 defines the term "Transaction" as: "A number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan". The Trial Chamber considers that the crimes alleged in the Amended Indictment that were committed in and around the municipality of Prijedor in Bosnia and Herzegovina from approximately 1 April 1992 to 30 August 1992 were committed in the course of the same transaction.

56. The Trial Chamber notes that it has the discretion pursuant to Sub-rule 82(B) of the Rules to order separate trials "if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice." However, in the instant case, the accused, Zoran Zigic, has presented no evidence to support a finding that a joint trial would cause him serious prejudice. On the other hand, the Prosecution has argued that severance would be contrary to the interests of justice as the evidence that will be presented by most of the Prosecution witnesses will be relevant to the case against each of the four accused.

57. Accordingly, the Trial Chamber finds no basis on which to grant the severance of Zoran Zigic’s trial pursuant to Sub-rule 82(B) and further finds that a joint trial serves the interest of judicial economy as it avoids duplication of the evidence and minimises hardship to witnesses.

 

III. DISPOSITION

For the foregoing reasons

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

THE TRIAL CHAMBER HEREBY REJECTS the application by Zoran Zigic for a separate trial and DIRECTS the Prosecution to:

  1. delete the word "about" in the phrase "between about" whenever it appears in the Amended Indictment;
  2. provide information that would allow for the identification of other participants in the crimes alleged against Miroslav Kvocka;
  3. identify, to the extent possible, the names of the victims in the crimes alleged against all four accused;
  4. identify, to the extent possible, the manner in which the crimes alleged against all four accused were committed;
  5. list, to the extent possible, whenever the term "including" appears in the Amended Indictment, additional names of victims of the crimes alleged;
  6. provide more information as to the specific acts of the accused, Mlado Radic and Miroslav Kvocka, that would establish their criminal responsibility under Article 7, paragraph 1, and Article 7, paragraph 3.

In respect of all other issues raised, as set forth in this Decision, the preliminary motions alleging defects in the form of the Amended Indictment are rejected.

 

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

_______________________________

Richard May
Presiding

Dated this twelfth day of April 1999
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Decision on the Defence Motion to Dismiss the Indictment Based Upon Defects in the Form Thereof (Vagueness/Lack of Adequate Notice of Charges), Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-PT, T. Ch. I, 4 Apr. 1997.
2. Decision on the Defence Preliminary Motion on the Form of the Indictment, Prosecutor v. Krnojelac, Case No. IT-97-25-PT, T. Ch. II, 24 Feb. 1999, para. 12.
3. Ibid.
4. Ibid., n.19.
5. Quoted in paragraph 15 of this Decision and at paragraph 12 of the Krnojelac Decision as to Form, supra n.2.
6. Ibid., para. 46.
7. Ibid., para. 13.
8. See, e.g., Decision on Motion by the Accused Hazim Delic Based on Defects in the Form of the Indictment, Prosecutor v. Delalic et al., Case No. IT-95-21-T, T. Ch. II, 15 Nov. 1996.
9. Prosecutor’s Reply to the Defence’s Preliminary Appeal to the Amended Indictment Against Miroslav Kvocka, Prosecutor v. Kvocka et al., Case No. IT-98-30-PT, 8 Feb. 1999, para. 49.
10. Prosecutor’s Reply to the Defence’s Preliminary Motion, Prosecutor v. Kvo~ka et al., Case No. IT-98-30-PT, 28 Jan. 1999, para. 64.
11. See, e.g., Tadic (1995) I ICTY JR 293 at paras. 15-18; Krnojelac Decision as to Form, supra n.2.
12. Judgement, Prosecutor v. Delali
c et al., Case No. IT-96-21-T, T. Ch. II, 16 Nov. 1998, para. 1222.