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

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
10 February 2000

PROSECUTOR

v.

DAMIR DOSEN
DRAGAN KOLUNDZIJA

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 two preliminary motions: the "Defense Motions Opposing the Amended Indictment Pursuant to the Rule 72 of Procedure and Evidence", filed by counsel for the accused Dragan Kolundzija on 9 November 1999, and the "Defence Preliminary Motion", filed by counsel for the accused Damir Dosen on 15 December 1999. The Office of the Prosecutor ("the Prosecution") filed a Response to Motion of the Accused Dragan Kolundzija on 23 November 1999 and its Response to the Accused Damir Dosen’s Preliminary Motion on 22 December 1999. To each Response the Prosecution appended a confidential Attachment A, in order to provide the Defence with further particulars. Counsel for Dragan Kolundzija filed a Reply on 8 December 1999 and counsel for Damir Dosen filed a Reply on 17 January 2000.

Although the indictment referred to in these motions is currently laid out in two separate documents, there is a single and joint indictment against the accused in this case which will be referred to as the Amended Indictment¹.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties heard on 24 January 2000,

1. Pursuant to the Amended Indictment, as confirmed on 30 August 1999, the accused Dragan Kolundzija and Damir Dosen are charged with crimes arising out of events in the municipality of Prijedor in the north-west of Bosnia and Herzegovina and particularly in the Keraterm prison camp, located on the site of a ceramics factory just outside the centre of the town of Prijedor. It is alleged that between May and August 1992 Dragan Kolundzija and Damir Dosen were shift commanders at Keraterm camp. The charges against Dragan Kolundzija are:

1. a. Crimes against humanity:

(i) Persecutions on political, racial or religious grounds (Count 1);
(ii) Inhumane acts (Count 2);
(iii) Murder (Count 4).

b. Violations of the laws or customs of war:

(i) Outrages upon personal dignity (Count 3);
(ii) Murder (Count 5).

The charges against Damir Dosen are:

a. Crimes against humanity:

(i) Persecutions on political, racial or religious grounds (Count 1);
(ii) Inhumane acts (Count 2);
(iii) Torture (Count 4);
(iv) Inhumane acts (Count 6)

b. Violations of the laws or customs of war:

(i) Outrages upon personal dignity (Count 3)
(ii) Torture (Count 5);
(iii) Cruel treatment (Count 7).

2. The charges relate to general events and conditions in the camp as well as specific instances; Dragan Kolundzija is charged with killings of prisoners while he was the guard shift commander during the night of 24 July 1992, whereas Damir Dosen is charged in particular with severely beating a group of prisoners, around 25 June 1992. Both accused are charged as individuals under Article 7, paragraph 1, of the Statute of the International Tribunal ("Statute"), and as superiors under Article 7, paragraph 3.

3. Counsel for Dragan Kolundzija submitted that:

(a) The Amended Indictment should be dismissed on grounds of vagueness and lack of precision; this applies in particular to the generalities in the first 10 paragraphs, and to paragraphs 12, 21 and 24; the Amended Indictment violates the right of the accused to know the substance of the charges against him and notions of due process;

(b) The Defence does not accept Attachment A as it does not specify which of the alleged crimes occurred during Dragan Kolundzija’s watch; it is simply a list of all the crimes that occurred in the Keraterm camp throughout its existence;

(c) Rule 72 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") authorises the Trial Chamber to evaluate the form of the indictment in the light of the supporting materials;

(d) The supporting materials show that there is insufficient evidence against the accused; he could not possibly have been in command over the military men who carried out the killings on 24 July 1992 and his alleged co-perpetrators are not identified;

(e) The Trial Chamber should not take judicial notice of findings in Prosecutor v. Tadic;

(f) References to the Omarska and Trnopolje prison camps are irrelevant and should be struck out, as the case against this accused only concerns Keraterm camp;

(g) Counts 1-3 as well as allegations of superior responsibility are insufficiently pleaded and should be dismissed;

(h) The entire Amended Indictment should be dismissed with prejudice, or alternatively, Counts 1-4 should be dismissed with prejudice and the Prosecution should be required to amend Count 5;

(i) Dragan Kolundzija also requests provisional release.

4. In response, the Prosecution submitted that:

(a) The accused fails to raise specific allegations of defects; the Amended Indictment meets the requirements of Article 18, paragraph 4 of the Statute and Rule 47 (C) of the Rules; it provides all statutory protections to the Defence and the supporting materials further assist the accused in preparing his case;

(b) Even so, "in an abundance of caution" the Prosecution further discloses particulars found in Attachment A; these particulars should as a matter of principle not form part of the Amended Indictment although should the Trial Chamber make an order to that effect the Prosecution would not object;

(c) The alleged insufficiency of supporting materials does not provide a basis for challenging the form of the indictment;

(d) Complaints about evidence are premature and must be resolved at trial;

(e) The Appeals Chamber’s finding in Prosecutor v. Tadic that there was a widespread and systematic attack on the civilian population of Prijedor during 1992 should be adopted in this case pursuant to Rule 94(B);²

(f) Events outside Keraterm camp are relevant to the "widespread or systematic" nature of the offences charged;

(g) The Defence motion should be dismissed and Attachment A should remain confidential.

5. Counsel for Damir Dosen submitted that:

(a) The Amended Indictment is arbitrary, non-specific, contradictory and unfounded; its standard is below the level of precision achieved in other cases before the International Tribunal (e.g. Delalic et al., Furundzija, and Tadic); words such as "others", "about", "including" should be corrected; the vagueness of the Amended Indictment makes the preparation of the defence considerably more difficult;

(b) There is a failure to provide particulars such as the identity of the victims and co-perpetrators and the time, place and manner in which offences were committed; lack of such particulars deprives the accused from a defence such as alibi; increased precision would expedite the trial;

(c) Attachment A should form an integral part of the Amended Indictment or its legal status will be unclear; Attachment A is itself not clear and does not specify the form of participation of the accused;

(d) The supporting materials do not reduce the Prosecution’s obligations to provide a sufficiently precise indictment;

(e) The Amended Indictment lacks precision and completeness regarding Article 7, paragraph 3; for the accused to be able properly to defend himself it should include facts on the status of the accused, allegations on his mens rea and the causal connection between the crimes and his omissions;

(f) It is not clear exactly what the accused is alleged to have done; it is not clear which charges refer to responsibility under Article 7, paragraph 1, and which to responsibility under Article 7, paragraph 3, of the Statute, nor is information given about the shifts for which Damir Dosen was allegedly responsible; moreover, it will be proved during trial that he was not a superior;

(g) Paragraphs 7 – 10 are irrelevant as they do not relate to Keraterm camp and the accused did not participate in what counsel describes as "greater political circumstances";

(h) The Prosecution should be ordered to delete paragraphs 7-10 and to file a precise indictment with factual charges which specify the names of victims, and the time, place and manner in which offences were committed, and the role and responsibilities of the accused.

6. The Prosecution submitted that:

(a) The Amended Indictment fulfils the requirements of Article 18, paragraph 4, of the Statute and Rule 47 (C); it is an accusation of guilt with the sole purpose to identify alleged offences;

(b) The accused fails to provide viable arguments as to why the Amended Indictment is defective; the Amended Indictment discloses a prima facie case and provides all the necessary facts in sufficient detail; it provides all the statutory protections due to the accused and allows him to prepare his defence; the standards of precision before the International Tribunal are lower than those before national courts; no further amendments are necessary;

(c) Even so, "in an abundance of caution" the Prosecution provides further particulars in Attachment A; these particulars should as a matter of principle not form part of the Amended Indictment, although should the Trial Chamber make an order to that effect the Prosecution would not object;

(d) The exact role of the accused as a superior must be resolved at trial;

(e) Article 7, paragraphs 1 and 3 are charged cumulatively;

(f) The accused did play a role in the ethnic cleansing of Prijedor municipality as this could not have been carried out without contributions of people like him; paragraphs 7-10 assist the accused and the Trial Chamber to understand the factual and legal context of the persecution charges; events outside Keraterm camp are relevant to the "widespread or systematic" nature of the offences charged;

(g) The Defence motion should be dismissed and Attachment A should remain confidential.

 

7. The submissions of the parties fell into the following categories:

a. Objections on grounds of vagueness/ lack of particulars

b. Clarification of superior responsibility

c. Supporting materials contain insufficient evidence to support the charges

d. Irrelevance of sections dealing with general background/ other camps

1. Objections on Grounds of Vagueness/ Lack of Particulars

8. It is clear that Article 18, paragraph 4, of the Statute, and Rule 47 (C) of the Rules require no more than a concise statement of the facts of the case and of the crimes with which the suspect is being charged. The Trial Chamber in Prosecutor v. Kvocka et al. found that the "massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity" but at the same time it recognised that "there is a floor below which the level of information must not fall if the indictment is to be valid as to form".³ Where possible, the Prosecution has a duty to provide information as to the time and place of the crime, the identity of the victims and the means by which the crime was perpetrated.⁴

9. In this case, the Prosecution has provided additional information as to the time and place of the alleged offences, and the identity of victims and co-perpetrators, in Attachment A, which is confidential. The Prosecution argued that the Amended Indictment in itself already conforms with the requirements of the Statute and the Rules; thus there is no need for Attachment A to be considered a part of the Amended Indictment. The Trial Chamber disagrees and accepts the Defence submission that this would create uncertainty about the legal status of the Attachment. The Trial Chamber therefore orders that Attachment A should form a part of the Amended Indictment against the respective accused.

10. Counsel for both accused submitted that Attachment A still leaves uncertainty about the charges against the accused, and particularly the means by which the offences are alleged to have been committed. For example, the Amended Indictment and Attachment A, even when read together, do not specify in which acts listed in the Attachment the accused are alleged to have participated directly. Even if the Prosecution case rests largely on their alleged superior responsibility as shift commanders, the Defence considers itself entitled to more information as to when the accused were on duty and when not.

11. The Trial Chamber notes that the conduct of the accused in respect to certain counts is not clearly laid out. For instance, in relation to Counts 1-3 against Dragan Kolundzija (persecutions, inhumane acts, outrages upon personal dignity), it is not sufficiently clear how far the Prosecution alleges that the accused participated directly in such acts. The same applies to the charges against Damir Dosen. For example, it is unclear whether he is alleged to have also participated directly in the crimes charged in Counts 1-3 (persecutions, inhumane acts, outrages upon personal dignity) above and beyond those incidents against which his name is listed in Attachment A.

12. At the hearing on 24 January 2000 the Prosecution submitted that providing such detail at this stage of the trial is unnecessary or inappropriate. The Trial Chamber does not accept this submission. The form of the alleged participation of the accused in a crime is an material averment which should be clearly laid out in an indictment in order to clarify it and make plain the prosecution case.

13. This finding is consistent with prior jurisprudence. In Prosecutor v. Tadic, the Trial Chamber held that there should be "some clear identification of particular acts of participation by the accused" in an attack.⁵ Similarly, in Prosecutor v. Dukic the Trial Chamber found that the indictment did not "contain any identification of the acts or omissions of General Djukic in the preparation or planning of the acts for which he is charged" and invited the Prosecution to amend accordingly.⁶ A similar order was made in Prosecutor v. Furundzija, where the Trial Chamber ordered the Prosecution to file a document specifying which form of participation pursuant to Article 7, paragraph 1, was applicable.⁷ More recently, in Prosecutor v. Krnojelac, the Trial Chamber stated that "what must be clearly 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".⁸ In Prosecutor v. Kvocka et al. likewise, the Trial Chamber found that "where the Prosecution is in a position to do so, it should identify the method of the commission of the crime, or the manner in which it was committed".⁹

14. A clearer indication of the form of participation of the accused will also assist the Trial Chamber in its management of the trial and in fulfilling its duty to expedite the trial.

15. The Trial Chamber therefore orders the Prosecution to file an amended version of Attachment A. This Attachment will remain confidential and will form part of the Amended Indictment. Against each incident where the victim(s), place and date is named (in the first column), the Prosecution should specify (in the second column) the capacity in which each accused is alleged to have participated and whether his responsibility was:

(a) direct pursuant to Article 7, paragraph 1, (and where possible, specifying the form of participation, such as "planning" or "instigating" or "ordering" etc.); or

(b) by virtue of his being on duty as a shift commander pursuant to Article 7, paragraph 3, or, if he was not on duty during that incident, whether there is still an allegation of superior responsibility under Article 7, paragraph 3, for that incident; or

(c) pursuant to Article 7, paragraph 1 and paragraph 3 (with specification as mentioned above).

16. The Trial Chamber finds that, once the Prosecution has amended Attachment A and incorporated it into the Amended Indictment, it meets the standards set out in Article 18, paragraph 4, of the Statute and in Rule 47 (C). The accused Damir Dosen’s further objections against the Amended Indictment on grounds of vagueness are therefore dismissed.

17. Dragan Kolundzija has raised an objection that the law relating to Counts 1-3 is not sufficiently pleaded. Also, both of the accused submit that superior responsibility is inadequately laid out in the Amended Indictment. Such objections are rejected. It is well-established that legal submissions such as elements of crimes and superior responsibility need not be elaborated in the indictment.¹⁰ The pre-trial brief will serve to clarify these issues further.

2. Clarification of Superior Responsibility

18. The Defence has argued that the Prosecution should specify whether it relies on Article 7, paragraph 1 or on paragraph 3 of the same Article in relation to particular charges. The Trial Chamber notes that in the Judgement in Prosecutor v. Delalic et al., another 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".¹¹ The amendment to Attachment A which the Prosecution is ordered to file will further clarify where it relies only on Article 7, paragraph 1, or only on Article 7, paragraph 3, or on both.

19. The Defence for Dragan Kolundzija submitted that he could not possibly have been in command over the "Serb forces" which allegedly carried out the killings during the evening of 24 June 1992. The Trial Chamber finds that an objection to the form of the indictment is not an appropriate proceeding for contesting the accuracy of the facts pleaded. Whether or not the accused were responsible as superiors for events at Keraterm camp is a matter for trial. The Trial Chamber therefore dismisses these objections.

20. As to Dragan Kolundzija’s objection that the Amended Indictment fails to identify further alleged co-perpetrators in the killing of prisoners in Room 3 on 24 July 1992, the Trial Chamber notes that the Prosecution has stated that it has provided information on co-perpetrators "to the extent possible".¹² The Trial Chamber therefore makes no further order at this time. The Prosecution must present its case more fully in its pre-trial brief.

3. Supporting Materials Contain Insufficient Evidence to Support the Charges

21. Defence counsel for Dragan Kolundzija argued that the Trial Chamber is entitled to evaluate the Amended Indictment in the light of the supporting materials. The Trial Chamber disagrees. It is clear from the jurisprudence of the International Tribunal that a challenge to the evidence must wait until trial. In Prosecutor v. Krnojelac the Trial Chamber stated that there is a "clear distinction drawn 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)".¹³ In Prosecutor v. Brdjanin the Trial Chamber stated that "there is no basis in the Rules of Procedure and Evidence upon which the Trial Chamber could review the decision of the confirming judge that the material provided by the prosecution to that judge supports the material facts pleaded in the indictment. The function of the Trial Chamber is, as stated earlier, to determine whether the evidence produced at the trial is sufficient to establish the charges pleaded in the indictment".¹⁴ Most recently, in Prosecutor v. Krstic, a Trial Chamber held that a motion on the form of the indictment is not an appropriate way of challenging the evidence, which is a matter for trial.¹⁵ On these grounds the Defence objection based on the sufficiency of evidence in this case is dismissed.

4. Irrelevance of Sections Dealing with General Background/ Other Camps

22. Counsel for both accused have argued that certain of the background sections of the Amended Indictment should be struck on grounds of irrelevance, or on the ground that the accused had nothing to do with the wider political circumstances in the Prijedor municipality. The Trial Chamber notes that in this case both accused are charged with persecution as a crime against humanity. Another Trial Chamber has recently defined persecution as "the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5".¹⁶ Persecution may require a broad scope of evidence. The Background and General Allegations sections of the Amended Indictment may assist it in placing the charges against the accused in their context. These sections do not make specific charges against the accused. The objections of the Defence are accordingly dismissed.¹⁷

For the foregoing reasons

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

THE TRIAL CHAMBER HEREBY ORDERS the Prosecution, no later than 24 February 2000, to file an amended version of confidential Attachment A, which will form part of the Amended Indictment, specifying against each incident listed in the first column, the capacity in which each accused is alleged to have participated and whether his responsibility was:

(a) direct pursuant to Article 7, paragraph 1, (and where possible, specifying the form of participation, such as "planning" or "instigating" or "ordering" etc.); or

(b) by virtue of his being on duty as a shift commander pursuant to Article 7, paragraph 3, or, if he was not on duty during that incident, whether there is still an allegation of superior responsibility under Article 7, paragraph 3, for that incident; or

(c) pursuant to Article 7, paragraph 1 and paragraph 3 (with specification as mentioned above).

All other submissions in the Defence motions are hereby REJECTED.

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

____________________________
Richard May
Presiding Judge

Dated this tenth day of February 2000
At The Hague
The Netherlands

[Seal of the Tribunal]

1. During the hearing on 24 January 2000 the Prosecution indicated that it would seek to file a single document in relation to both accused closer to trial.
2. The Prosecution refers to this Trial Chamber’s Decision on Judicial Notice in Prosecutor v. Kvocka et al., IT-98-30-PT, T. Ch. III, 19 March 1999 in support of this argument.
3. Decision on Defence Preliminary Motions on the Form of the Indictment, Prosecutor v. Kvocka et al., 12 Apr. 1999, paras. 17, 14.
4. Ibid., para. 17; Decision on the Defence Preliminary Motion on the Form of the Indictment, Prosecutor v. Krnojelac, IT-97-25-PT, T. Ch. II, 24 Feb.1999, para. 12.
5. Decision on the Defence Motion on the Form of the Indictment, Prosecutor v. Tadic, IT-94-1-T, T. Ch. II, 14 Nov. 1995, para. 12.
6. Decision on Preliminary Motions of the Accused, Prosecutor v. Dukic, IT-96-20-T, T. Ch. I, 26 April 1996, para. 18.
7. Order, Prosecutor v. Furundzija, IT- 95-17/1-PT, T. Ch. II, 19 March 1998.
8. Decision on the Defence Preliminary Motion on the Form of the Indictment, Prosecutor v. Krnojelac, 24 Feb. 1999, para. 13.
9. Decision on Defence Preliminary Motions on the Form of the Indictment, Prosecutor v. Kvocka et al., 12 April 1999.
10. Ibid., para. 36; Decision on the Defence Preliminary Motion on the Form of the Indictment, Prosecutor v. Krnojelac, 24 Feb. 1999, paras. 18-21.
11. Judgement, Prosecutor v. Delalic et al., IT-96-21-T, T. Ch. II, 16 Nov. 1998, para. 1222.
12. Prosecutor’s Response to Motion of the Accused Dragan Kolundzija Entitled Defense Motions Opposing the Amended Indictment Pursuant to Rule 72 of the Rules of Procedure and Evidence, 23 Nov. 1999, para. 18.
13. Decision on the Defence Preliminary Motion on the Form of the Indictment, Prosecutor v. Krnojelac, 24 Feb. 1999, para.12.
14. Decision on Motion to Dismiss Indictment, Prosecutor v. Brdjanin, IT-99-36-PT, T. Ch. II, 5 Oct. 1999, para. 23.
15. Decision on Defendant’s Preliminary Motion on the Form of the Amended Indictment, Counts 7-8, Prosecutor v. Krstic, IT-98-33-PT, T. Ch. I, 28 Jan. 2000.
16. Judgement, Prosecutor v. Kupreskic et al., IT-95-16-T, T. Ch. II, 14 Jan. 2000 at para. 621.
17. Any remaining submissions on judicial notice or provisional release are dismissed as inappropriate for inclusion in a preliminary motion filed pursuant to Rule 72.