¹⁵⁶ Friday, 26 April 1996

[Decision]

(Open session)

--- Upon commencing at ^

JUDGE JORDA: [Interpretation] Can you all hear? Prosecutor, yes, can you hear? Thank you. And good morning. Prosecutor, can you hear me? Okay. Mr. Fila, apparently you're having problems. It's on channel 3. Are we all set? Mr. Fila, you can hear me now? All right. The Prosecutor? Yes, all right. Registrar, my dear colleagues, I am going to speak French so I suppose there is no problem for you. This Trial Chamber is going to submit its decision in the Djukic case. Could you please announce the case.

THE REGISTRAR: [Interpretation] Yes, Your Honour. It's IT-96-20-T, the Prosecutor of this Tribunal against Djordje Djukic.

JUDGE JORDA: [Interpretation] All right. The Prosecutor's Office is represented by whom?

MR. OSTBERG: I'm Eric Ostberg, Your Honour, and I appear today with Mr. Michael Keegan and Mr. Michael Blaxill.

JUDGE JORDA: [Interpretation] The Defence?

MR. FILA: [Interpretation] Toma Fila.

JUDGE JORDA: [Interpretation] All right, Mr. Fila. The Chamber is going to render its decision in respect to the motions, preliminary motions raised by the Defence of General Djukic. The Chamber consists of Presiding Judge Jorda, Mrs. Odio-Benito, and Mr. Fouad Riad, assisted by Mr. Dominique Moreau, Deputy Registrar. ¹⁵⁷ This Trial Chamber has been seized of the indictment against General Djukic, which was confirmed on 29 February 1996. Having regard to the requests presented by the Defence on 14 and 18 March 1996, having regard to the briefs responding to each of the requests filed by the Prosecution on 14 and 25 March 1996, having regard to Rule 72 and 73 of the Rules of Procedure and Evidence (the Rules), having heard the parties during the hearing of 25 March 1996; considering that the Trial Chamber has been seized by an indictment against General Djukic, which was confirmed on 29 February 1996 by Judge Karibi-Whyte, who, on the same day, issued an order for detention of the accused; considering that in its decision of 24 April 1996, the Trial Chamber rejected the request from the Prosecutor that the indictment be withdrawn because of the medical condition of General Djukic; as well as that of the Defence that the indictment be withdrawn because of an alleged lack of sufficient evidence produced by the Prosecutor at this stage of the proceedings; considering that by that same decision, the Trial Chamber did, however, accept the request from the Defence for provisional release of the accused because of his exceptionally critical medical condition; considering that the Trial Chamber must therefore rule on all the preliminary motions presented by the Defence which refers to Rule 73(A)(i), (ii), and (iii) in its briefs of 4 and 14 March 1996, and the responses from the Prosecutor dated 14 and 25 March 1996; we will look first at the lack of jurisdiction referring to Rule 73(A)(i) of the Rules and the subsequent request for a deferral. The Defence emphasises that pursuant to Rule 9(iii) of the Rules of Procedure and Evidence, before issuing an indictment against General ¹⁵⁸ Djukic, the Prosecutor must present a request to the Trial Chamber for the deferral by the judicial authorities of the Republic of Bosnia-Herzegovina seized of investigation into him. According to the Defence, the fact that there has been no request for a deferral renders the decision confirming the indictment invalid. For this reason, the Trial Chamber is said not to have jurisdiction to conduct the trial against General Djukic. In response, the Prosecutor alleges that the request for deferral is not a precondition for issuing an indictment and that the confirmation of the indictment against General Djukic is, therefore, valid. No challenge is raised as to whether seizing the judicial authorities of the Republic of Bosnia-Herzegovina is valid in respect of the investigations into General Djukic and as to whether he is still covered by a detention order issued by the Higher Court of Sarajevo. The investigations conducted by the national judicial authorities began prior to the transfer of the accused to the Tribunal and before his indictment in that same body. Nothing in the Statute or the Rules of the Tribunal supports the conclusion that the absence of deferral proceedings before the decision to confirm an indictment would render such a decision invalid.

The Trial Chamber therefore considers that it has been properly seized and therefore, consequently, it is competent to conduct the trial against General Djukic.

In response to the subsequent request of the Defence for the Trial Chamber to ask for deferral from the national courts, based on Rule 13 of the Rules, must however be given, the Defence alleges that, and I quote, ¹⁵⁹ "It is not possible to accept two ongoing proceedings at the same time for the same case."

Nevertheless, according to the Prosecutor, who has based his arguments on the terms of Article 9(2) of the Statute, the request for deferral may be presented at any stage of the proceedings, and the Tribunal may therefore simultaneously and in parallel with a national court continue its prosecution because of the existence of the principle of concurrent jurisdiction of the International Tribunal and the national courts.

The principle of concurrent jurisdiction is recognised by Article 9 of the Statute of the Tribunal. According to the report of the Secretary-General who proposed the Statute, which was approved by Security Council Resolution 827, the expression of the principle of concurrent jurisdiction of the International Tribunal and the national courts intended to reflect the intention of the Security Council not to exclude the jurisdiction of the internal courts in respect of crimes also falling within the jurisdiction of the Tribunal. According to the report, "National courts should be encouraged to exercise their jurisdiction in accordance with their relevant national laws and procedures." This principle is limited, however, by the principle of non bis in idem, recognised by Article 10 of the Statute and Rule 13. According to Rule 13, "When the President receives reliable information to show that criminal proceedings have been instituted against a person before a court of any state for a crime for which that person has already been tried by the Tribunal, a Trial Chamber shall, following mutatis mutandis the ¹⁶⁰ procedure provided in Rule 10, issue a reasoned order requesting that court permanently to discontinue its proceedings."

It appears that even before the sentence is rendered, the mere fact of two trials being held simultaneously for the same crimes against the same accused is likely to prejudice the rights of that accused as presented in Article 14 of the International Convention on Economic and Social and Cultural Rights, and repeated in Article 21 of the Statute of this Tribunal, particularly in paragraph 4(B) of that Article, according to which the accused has the right "to have adequate time and facilities for the preparation of his defence."

In respect of the jurisdiction of various organs of this Tribunal as regards deferral, the Trial Chamber notes that Rule 13 of the above-mentioned Rules on which the Defence has based the competence of the Trial Chamber to order deferral is not applicable. The Prosecutor has correctly emphasised that pursuant to Rule 9 of the Rules, he has the power to assess the suitability and the moment for seizing this Trial Chamber of the request for deferral. The Trial Chamber considers that the Prosecutor must, however, take care not to place the Defence in a position which, in the future, might prejudice the rights of General Djukic as recognised in Article 21 of the Statute.

Basing itself on these comments, the Trial Chamber rejects the request of the Defence.

Now we're going to turn to the technical defects of the indictment, Article 73(A)(ii) of the Rules.

Basing itself on paragraph (A)(ii) of Rule 73 of the Rules, the ¹⁶¹ Defence developed two sets of arguments respectively on the incomplete nature and lack of precision of certain allegations in the indictment. First, the Defence asserts that the general nature of the indictment would permit bringing anyone before the Tribunal and not those persons whose individual responsibility might be sought in accordance with Article 7 of the Statute of the Tribunal. Inter alia, the Defence emphasises that the information contained in paragraph 7 of the indictment referring to a widespread, systematic, and large-scale attack against a civilian population points to random acts. The indictment is alleged to be imprecise and ambiguous because it makes general allegations about shelling of civilian targets in Sarajevo from May 1992 to about December 1995 without, however, specifically stating the date, time, and identity of those responsible for the shelling and targets under consideration. The Defence concludes that the indictment is null and void and that it does not permit the Defence, therefore, to ensure adequate preparation for a defence for its client. Consequently, it requests that the indictment be made more concrete and more precise specifically in respect to acts ascribed to General Djukic.

Second, the Defence claims that the indictment contains inexact information in respect specifically of the functions and title of the accused. Amongst other things, it claims that the accused is not a member -- not to be a member of the Yugoslav army, does not hold the rank of colonel general in the Bosnian army, and is "the deputy commander responsible for logistics of Ratko Mladic."

Last, the Defence adds that the planning, preparation, and ¹⁶² execution of the Bosnian Serb military operations in Bosnia-Herzegovina did not fall within the competence of the accused. It concludes that those activities could not be connected to any fault of General Djukic. In order to establish such a link, the indictment should have specified the nature of the decisions taken by General Djukic or those in which he is said to have participated as regards the criminal acts ascribed to him.

The Prosecutor asserts that he has respected the provisions of the Statute and the Rules as regards the contents of the indictment, specifically by exposing the acts which identify the accused and which are sufficient to describe the alleged crimes as required by subparagraph (B) of Rule 47 of the Rules. The Prosecutor adds that the specific points raised by the Defence are semantic in nature or details which have no influence on the validity of the indictment.

Last, the Prosecutor generally contends that the information being challenged relates to questions to be decided at trial and that, at this stage, it needs only to prove the information. The Prosecutor concludes by adding that new evidence will be submitted as part of the disclosure of pieces of evidence and documents and that amendments may be made to the indictment.

The Statute provides that any person against whom an indictment has been issued has the right to be informed as quickly as possible and in detail of the nature and reasons for the indictment against him, paragraph 4(A) of Article 21, and places an obligation on the Prosecutor when he issues an indictment to state succinctly the acts and the crime or crimes ¹⁶³ of which the accused has been charged, paragraph 4 of Article 18. Last, the Rules specify that the indictment must indicate the name of the suspect and the personal information about him as well as a concise statement of the facts of the case and the classification of those acts, subparagraph (B) of Rule 47.

The Trial Chamber first takes note of the summary nature of the indictment which very succinctly demonstrates that the accused allegedly committed a crime against humanity, a violation of the laws or customs of war. In respect of the allegedly incorrect information contained in the indictment, the Trial Chamber does consider that, at this stage of the proceedings, the indictment respects the relevant provisions of the Statute and the Rules, conditional on it being understood that each of the parties will have to prove its allegations during the substantive trial. The Trial Chamber therefore rejects the preliminary Defence motion based on the incorrect nature of some of the information contained in the indictment.

The Trial Chamber next takes note of the imprecise and ambiguous nature of the indictment, specifically in paragraph 7 where reference is made, with no other precision, to a widespread, systematic, and large-scale attack against a civilian population as well as to the shelling of civilian targets in Sarajevo from May 1992 to about December 1995. Because he participated in the planning and preparation or, in some other manner, aided and abetted the planning and preparation of those acts and operations, General Djukic is accused of having committed a crime against humanity as provided for in Article 5(i), other inhumane acts of ¹⁶⁴ the Statute, and of a violation of the laws or customs of war as provided for in Article 3 of the Statute. These are serious allegations for which the accused is entitled to receive all the necessary information for preparing his defence.

In the Tadic case, the Tribunal justified its decision authorising the Prosecutor to amend his indictment in these terms: "The indictment states nothing specific about the behaviour of the accused, about the nature and level of participation in the various types of behaviour which are mentioned for the months under consideration. Nonetheless, some form of clear identification of the specific acts relating to the participation of the accused in such an attack should be presented," a decision on the preliminary motion of the Defence relating to the form of indictment, 14 November 1995, paragraph 12.

In this case, the Trial Chamber considers that the indictment against General Djukic does not demonstrate the level of precision as required in the Tadic case. In fact, it does not contain an identification of the acts or omissions of General Djukic in the preparation or planning of the acts for which he is charged, and does not provide indications as to the nature of the other inhumane acts he allegedly committed.

The Trial Chamber therefore invites the Prosecutor to make the modifications he deems necessary if he intends to maintain the counts appearing in paragraph 7 of the indictment. The Trial Chamber also takes note of the fact that the Prosecutor, at the hearing of 25 March 1996, indicated that further evidence will be submitted as part of the ¹⁶⁵ disclosure of the pieces of evidence and documents as provided for in the Rules, and that he reserved the right to amend the indictment. Now we're going to turn to the inadmissibility of evidence obtained from the accused or belonging to him, which is Rule 73(A)(iii) of the Rules.

Basing himself on paragraph (A)(iii) of Rule 73, the Defence requests that some of the evidence obtained from the accused or belonging to him be declared inadmissible. Specifically, it requests that the organisational chart of the internal political, civilian, and military structure of a political party containing completely erroneous information be declared inadmissible.

Furthermore, it requests that the same treatment be reserved for the evaluation of the information on General Djukic in respect of his functions within the army of Republika Srpska as for the information pertaining to Radovan Karadzic and General Mladic. The list of objectives and civilian populations targeted by the alleged shelling should also be dismissed because they are presented with no indications whatsoever about the perpetrator or the evidence on which they are based. Last, the declaration of General Djukic to the Sarajevo police should not be considered as admissible evidence because it was allegedly received in violation of the provisions of the national Bosnia-Herzegovina law. In respect of the organisational chart, the information on General Djukic, General Mladic, and Radovan Karadzic, as well as the list of civilian targets, the Prosecutor emphasises that the exclusion of that proof does not fall within the scope of application of paragraph (A)(iii) ¹⁶⁶ of Rule 73 of the Rules because it was not obtained from the accused and it does not belong to him.

Last, as regards the statement of the General, the Prosecutor asserts that no provisions exist to exclude automatically evidence obtained from the accused, and that it is the responsibility of the Defence to demonstrate that the prejudicial nature of the evidence is greater than its probative value, and that it was obtained by means violating the rights of the accused which are guaranteed by international law.

The Prosecutor considers that in this case the probative value of the evidence in question is greater than any harm caused to the accused, and that nothing in the Defence motion indicates that there is reason to conclude that the statements were not taken in accordance with the Rules. Subparagraph (A) of Rule 89 of the Rules provides that the Trial Chamber which has been seized is not bound by the rules of the national law governing the administration of evidence, and in subparagraph (D) of that same Rule, it grants the exclusion of any proof whose probative value is greatly lower than the requirement for a fair trial. In addition, Rule 95 of the Rules stipulates that "No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability, or if its admission is anti-ethical to and would seriously damage the integrity of the proceedings."

The Trial Chamber recalls that any evidence which has been challenged has been provided to the accused but not submitted to the Trial Chamber at this stage of the proceedings. ¹⁶⁷ Nonetheless, as regards the organisational chart of a political party, the evaluation of information on General Djukic, information about General Mladic and Radovan Karadzic, as well as the list of the civilian targets, the Trial Chamber considers that this proof was not obtained from the accused or does not belong to him.

As regards the statement of General Djukic, the Trial Chamber, in accordance with subparagraph (D) of Rule 89, considers that the Tribunal is in no way bound by the rules of national law of Bosnia and Herzegovina governing the administration of evidence. It can only take note of the assertion by the Prosecutor according to which the probative value of this evidence is greater than any damage to the accused. However, the Trial Chamber recalls that the admissibility of that particular evidence during the substantive review will, inter alia, depend on its respect for the requirement of proper administration of justice; and that an appropriate balance of interest is necessary, general interest and interest of the accused, and must necessarily be sought in light of the appropriate provisions of the Statute, the Rules, and the applicable principles of international law.

Consequently, the Trial Chamber rejects the preliminary motion based on inadmissibility of the evidence obtained from the accused or belonging to him.

For these reasons, the Trial Chamber unanimously rejects the request of the Defence in respect of the preliminary motion on the lack of jurisdiction and the subsequent request for deferral; rejects the motion concerning lack of precision of the indictment; invites the Prosecutor to ¹⁶⁸ amend paragraph 7 of the indictment in accordance with the Statute and the Rules; rejects the request of the Defence based on the inadmissibility of evidence obtained from the accused or belonging to him. Done in French and in English, the French version being authoritative, this very day, 26 April 1996, at the International Criminal Tribunal in The Hague. That's the end of the hearing. Thank you.

--- Whereupon the hearing adjourned at ^