Prosecutor v. Blagojevic and Jokic (Judgment on Motions for Acquittal pursuant to Rule 98 Bis)
- Author: International Criminal Tribunal for the former Yugoslavia (ICTY); Trial Chamber I
- Document source:
-
Date:
5 April 2004
Case No. IT-02-60-T
Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Argibay
Registrar:
Mr. Hans Holthuis
Judgement of:
5 April 2004
PROSECUTOR
v.
VIDOJE BLAGOJEVIC
DRAGAN JOKIC
__________________________________________
JUDGEMENT ON MOTIONS FOR ACQUITTAL PURSUANT TO RULE 98 BIS
__________________________________________
The Office of the Prosecutor:
Mr. Peter McCloskey
Mr. Stefan Waespi
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Mr. Branko Lukic for Dragan Jokic
- in Count 1B4 with complicity to commit genocide, punishable under Article 4(3)(e) of the Statute,
- in Count 2 with extermination, a crime against humanity punishable under Article 5(b) of the Statute,
- in Counts 3 and 4 with murder, as a crime against humanity punishable under Article 5(a) of the Statute, and as a violation of the laws or customs of war punishable under Article 3 of the Statute,
- in Count 5 with persecutions, a crime against humanity punishable under Article 5(h) of the Statute, through murder, cruel and inhumane treatment, terrorising of civilians, destruction of personal property and effects and forcible transfer,
- in Count 6 with inhumane acts (forcible transfer), a crime against humanity punishable under Article 5(i) of the Statute.
- in Count 2 with extermination, a crime against humanity punishable under Article 5(b) of the Statute,
- in Counts 3 and 4 with murder, as a crime against humanity punishable under Article 5(a) of the Statute, and as a violation of the laws or customs of war punishable under Article 3 of the Statute,
- in Count 5 with persecutions, a crime against humanity punishable under Article 5(h) of the Statute, through murder, cruel and inhumane treatment, terrorising of civilians, destruction of personal property and effects.
(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.
"in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed,14 is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalic appeal judgment, where it said: "[t]he test applied is whether there is evidence (if accepted ) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question."15 The capacity of the prosecution evidence (if accepted) to sustain a conviction beyond a reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could. At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond a reasonable doubt."
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
- there is a superior-subordinate relationship between the perpetrator(s) and the accused;
- the accused knew or had reasons to know that a crime was about to be or had been committed;
- the accused failed to take the necessary and reasonable measures to prevent the commission of the crime or punish the perpetrator(s) thereof.36
(b) Control over troops involved in criminal activities
a) Paragraph 43 concerns killings in Potocari on 12-13 July 1995,
b) Paragraph 45 concerns killings in Bratunac "between 12 and about 15 July 1995", and
c) Paragraphs 47-48 concern "opportunistic killings in the Bratunac Brigade and Zvornik Brigade zones" in the period "during and after the campaign of organised executions through about 1 November 1995".
- Dragan Jokic, as the chief of engineering, was tasked, under the rules, to "advise the Brigade Commander on the appropriate uses for the Engineering Company and make proposals and recommendations for various projects for the Engineering Company,"102 and to "oversee and assist in implementing the Commander's orders related to carrying out various projects in which the Engineering Company is engaged;"103
- The Zvornik Brigade Engineering Company was involved in the burial and reburial operations;104 and
- Dragan Jokic was personally involved in the burial105 and reburial operations.106
FOR THE FOREGOING REASONS,
TRIAL CHAMBER I, SECTION A
PURSUANT TO Rule 98 bis of the Rules,
ENTERS a judgement of acquittal in respect of Vidoje Blagojevic on Counts 2 to 4 of the Indictment insofar as his individual criminal responsibility is alleged, under Article 7(1) of the Statute, for planning, instigating, ordering and committing the crimes;
ENTERS a judgement of acquittal in respect of Vidoje Blagojevic on Counts 5 and 6 of the Indictment insofar as his individual criminal responsibility is alleged, under Article 7(1) of the Statute, for planning, instigating, and ordering the crimes;
ENTERS a judgement of acquittal in respect of Dragan Jokic on Counts 2 to 5 of the Indictment insofar as his individual criminal responsibility is alleged, under Article 7(1) of the Statute, for planning, instigating, and ordering the crimes;
REJECTS the factual allegations contained in paragraphs 45 b) and e), 47. 2, 47.5 except for the victim named Resid Sinanovic, 47.7, and 47.8; and
REJECTS, with regard to Vidoje Blagojevic, the factual allegations contained in paragraphs 43 a) to d), 47.1, 47.3, 47.4, 47.6, and 48;
DISMISSES the remaining grounds of the Motions.
Done in English and French, the English version being authoritative.
______________
Judge Liu Daqun,
Presiding
______________
Judge Volodymyr Vassylenko
______________
Judge Carmen Argibay
Dated this fifth day of April 2004
at The Hague, Netherlands
[Seal of the Tribunal]
1 - "Defendant Dragan Jokic's Motion for Acquittal Pursuant to Rule 98 bis," 2 March 2004; "Vidoje Blagojevic's Motion for Judgement of Acquittal Pursuant to Rule 98 bis", 2 March 2004.
2 - Indictment, para. 30.
3 - Indictment, para. 51.
4 - Following the guilty plea of Momir Nikolic and the filing of a new indictment, the Indictment does not contain a Count 1A, as this count (genocide) was limited to Momir Nikolic.
5 - Indictment, para. 12.
6 - Indictment, para. 14.
7 - Indictment, para. 36.
8 - Indictment, para. 51.
9 - Indictment, para. 30.
10 - Indictment, para. 27.
11 - Indictment, para. 28.
12 - Blagojevic Motion, para. 8; see also Jokic Motion, para. 3, which states the standard of review as follows: "whether there is evidence on which a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused." Response, para. 10.
13 - Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001 ("Jelisic Appeal Judgement"), para. 37.
14 - Footnote in the original judgement: "As to the permissibility of drawing inferences at the close of the case for the prosecution, see Monteleone v. the Queen [1987] 2 S.C.R. 154 in which McIntyre J., for the court, said: It is not for the trial judge to draw inferences of fact from the evidence before him'. And see the reference to inferences' in Her Majesty v. Al Megrahi and Another, infra. See the Kvocka decision, para. 12, p. 5, in which the Trial Chamber said: The Chamber prefers an objective standard, under which it is entitled at this stage to apply any reasonable inferences and presumption or legal theories when reviewing the Prosecution evidence.' The issue posed is not passed upon here."
15 - Footnote in the original judgement: "Delalic appeal judgement, para. 434, p. 148 (emphasis in original). Or, as it was correctly put by Trial Chamber II in the Kunarac decision, para. 10, p. 6, the "Prosecution needs only to show that there is evidence upon which a reasonable tribunal of fact could convict, not that the Trial Chamber itself should convict'" (emphasis in original).
16 - Jokic Motion, para. 4.
17 - Jokic Motion, para. 5.
18 - Jokic Motion, para. 6.
19 - Jokic Motion, para. 7.
20 - Prosecutor v. Dario Kordic and Mario Cerkez, Decision on Defence Motions for Judgement of Acquittal, Case No. IT-95-14/2-T, 6 April 2000, ("Kordic, 98 bis Decision"), para. 28 and Prosecutor v. Miroslav Kvocka et. al, Case No. IT-98-30/1-T, Decision on Defence Motions for Acquittal, 15 December 2000, (Kvocka, 98 bis Decision"), para. 17.
21 - Kvocka, 98 bis Decision, para. 17. See also Kordic, 98 bis Decision and Prosecutor v. Dragoljub Kunarac et al., Decision on Defence Motions for Judgment of Acquittal, Case No. IT-96-23-T and IT-96-23/1-T, 3 July 2000 ("Kunarac, 98 bis Decision").
22 - Kvocka, 98 bis Decision, para. 9. See also Kordic, 98 bis Decision and Kunarac, 98 bis Decision.
23 - Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 ("Akayesu Trial Judgment"), para. 480, reiterated in Prosecutor v. Radislav Krstic, IT-98-33-T, Judgement, 2 August 2001 ("Krstic Trial Judgment"), para. 601, in Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, 3 March 2000 ("Blaskic Trial Judgment"), para. 279 and in Prosecutor v. Dario Kordic & Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, ("Kordic Trial Judgment"), para. 386.
24 - Blaskic Trial Judgement, para. 280, Krstic Trial Judgement, para. 601, Kordic Trial Judgement, para. 387, Akayesu Trial Judgement, para. 482.
25 - Krstic Trial Judgement, para. 601.
26 - Regarding planning: Blaskic Trial Judgement, para. 278; Kordic Trial Judgement, para. 386. Regarding instigating, see Kvocka Trial Judgement, para. 252. Regarding ordering, see Blaskic Trial Judgement, para. 282.
27 - Prosecutor v. Dusko Tadic, Case No. IT-95-1-A, Judgement, 15 July 1999, ("Tadic Appeal Judgement"), para. 189.
28 - Regarding co-perpetration as a form of commission, see Prosecutor v. Milomir Stakic, Case No. IT-97-24, Judgement, 31 July 2003 ("Stakic Trial Judgment"), para. 439. Regarding joint criminal enterprise as a form of commission, see Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 5 November 2003 ("Krnojelac Appeal Judgement"), para. 29.
29 - Indirect perpetration in German law refers to the "perpetrator behind the perpetrator". This term is often used in the context of white collar crimes and other forms of organised crime.
30 - Stakic Trial Judgement, para. 439.
31 - Prosecutor v Mitar Vasiljevic, Case No. IT-98-32-A, Judgement, 25 February 2004, para. 100.
32 - Tadic Appeal Judgement, para. 227.
33 - Tadic Appeal Judgement, para. 196.
34 - Krstic Trial Judgement, para. 601, confirmed in Prosecutor v. Zlatko Aleksovski, Case No. IT-95 14/1-A, Judgement, 24 March 2000, ("Aleksovski Appeal Judgement"), para. 162.
35 - Prosecutor v. Dusko Tadic, Case No. IT-95-1-T, Judgement, 7 May 1997, ("Tadic Trial Judgement"), para. 674; Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-T, Judgement, 16 November 1998, ("Celebici Trial Judgement"), para. 326; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999, ("Aleksovski Trial Judgement"), para. 61.
36 - Prosecutor v. Zejnil Delalic et al., Case IT-96-21-A, 20 February 2001 ("Celebici Appeal Judgement"), para. 186-198 and 266.
37 - Blagojevic Motion, Factual Basis, Part I, para. B(1).
38 - Blagojevic Motion, Factual Basis, Part I, para. B(2).
39 - Blagojevic Motion, Factual Basis, Part I, para. B(3). The lawful activities listed by the Defence are the following: providing buses and regulating traffic; discovering, blocking, disarming and capturing Bosnian Muslim groups; searching the terrain; sending troops to Bratunac-Milici-Bracan; providing troops to the Zvornik Brigade on 15-16 July 1995; co-ordinating various units searching the terrain; and sending troops to Zepa.
40 - Blagojevic Motion, Factual Basis, Part I, para. C (1) and (2).
41 - Blagojevic Motion, Factual Basis, Part I, para. A(1) and (2).
42 - Blagojevic Motion, Factual Basis, Part I, para. A(2).
43 - Blagojevic Motion, Factual Basis, Part I, para. C (2).
44 - Response, para. 34.
45 - Response, para. 48(6).
46 - Response, para. 24.
47 - Response, paras 30-31.
48 - Response, paras 25-26.
49 - Response, para. 48(7).
50 - Response, paras 17- 18.
51 - Response, para. 18.
52 - Response, para. 18.
53 - Response, para. 19.
54 - Response, para. 20-21.
55 - See Ex. P441 and Ex. P469 (daily combat reports of 12 and 13 July 1995).
56 - Blagojevic Motion, para. 23.
57 - Blagojevic Motion, Factual Basis, Part I, para. D(1) and (2). See also, in relation to the crimes committed at the Branjevo Military Farm and Pilica, Factual Basis, Part I, para. B(4).
58 - Blagojevic Motion, Factual Basis, Part II, para. A.
59 - Blagojevic Motion, Factual Basis, Part II, para. B; see also para. 24, regarding the Accused's ability, or lack thereof, to take measures vis-à-vis Nikolic.
60 - Blagojevic Motion, Factual Basis, Part II, para. A (1)(b).
61 - Blagojevic Motion, Factual Basis, Part II, para. A (1)(d).
62 - Blagojevic Motion, Factual Basis, Part II, para. A (1).
63 - Blagojevic Motion, Factual Basis, Part II, para. A (1)(g) and (h). The Defence contrasts his testimony with that of Butler, P138, Deronjic, Franken and Jevic.
64 - Blagojevic Motion, para. 23.
65 - Response, para. 48(4).
66 - Response, para. 48(8).
67 - Blagojevic Motion, para. 2.
68 - Mehmedovic, T. 1275.
69 - Nikolic, T. 1715, see also his Statement of Facts and Acceptance of Responsibility, Ex. P82.
70 - Nikolic, T. 1805.
71 - Nikolic testifies that he met with Blagojevic and informed him of the ongoing operations. Nikolic, T. 1699-1701.
72 - As regards co-location of forward command posts, see for example Ex. P543 (Butler, T. 4358, 5012), and Ex. P185 (Butler, T. 4388-89). Regarding chain of command issues, see Butler, T. 4281, 5013, Ex. P495 (Butler, T. 4529-31, 4992-93) and Ex. P541 (Butler, T. 4632-33).
73 - P140 who was from the worker's battalion, testified regarding involvement in burials in Kravica and Glogova. P140, T. 3404-3440, 3490.
74 - Indictment, para. 51.
75 - Tadic Appeal Judgement, para. 220.
76 - Indictment, para. 47.
77 - Djokic, T. 5446-48; P-210, T. 7375-79.
78 - Blagojevic Motion, para. 40.
79 - See, Ex. P816/ P401, Radovan Karadzic "Directive 7" specifying the VRS strategy to separate Srebrenica from Zepa; Ex. P543, Drina Corps Order No. 04/156-2, "Krivaja 95" Attack Plan, 2 July 1995; Ex. P826/ P402, VRS Main Staff "Directive 7.1" issued by General Mladic directing Drina Corps to conduct "active combat operations .around the enclave".
80 - See daily combat reports authored by the Accused on 12 and 13 July 1995, Ex. P441 and Ex. P 469.
81 - Blagojevic Motion, para. 38.
82 - Blagojevic Motion, para. 28.
83 - See supra, paras 38 and 58.
84 - Jokic Motion, para. 16.
85 - Jokic Motion, para. 22.
86 - Dragan Jokic did submit, pursuant to Rule 72, a preliminary motion on the form of the Indictment on 21 June 2002, Dragan Jokic Objections to Joinder and Amendment of Indictments", 21 June 2002. This Motion was rejected by Trial Chamber II on 1 August 2002, Decision on Motions Challenging the Form of Amended Joinder Indictment. Dragan Jokic subsequently submitted a response to the Prosecution's motion for leave to file a third Amended Joinder Indictment (Prosecution's Motion for Leave to File Third Amended Joinder Indictment", 26 May 2003), wherein he raised other alleged defects of the Indictment. These arguments were rejected by this Trial Chamber, Decision on Prosecution's Motion for Leave to File Third Amended Indictment, 17 June 2003. Dragan Jokic thus had several opportunities to object to the form of the Indictment and has in fact done so.
87 - Celebici Appeal Judgement, para. 400.
88 - Jokic Motion, para. 54-55.
89 - Jokic Motion, para. 89.
90 - See supra, paras 41- 46
91 - Jokic Motion, paras. 24 to 33; see also para. 63.
92 - Jokic Motion, paras 63-68, citing Stanojevic, T. 5693; Butler, T. 5223, 5227.
93 - Jokic Motion, paras 69-74, citing Ristanovic, T. 5406-08, 5381-82, 5412-13; Butler, T. 5209-10.
94 - Jokic Motion, paras 75-78, citing Ristanovic, T. 5415; Butler, T. 5211.
95 - Jokic Motion, paras 80-85, citing Ristanovic, T. 5389, 5418-19; Butler, T. 5212.
96 - Jokic Motion, paras 86-87, citing Mitrovic, T. 5603-04, 5611, 5618-19.
97 - Jokic Motion, para. 91.
98 - Jokic Motion, para. 92, citing Obrenovic, T. 2545-46.
99 - Response, para. 64.
100 - Response, paras 64-65.
101 - Response, para. 65.
102 - Response, para. 72, citing Ex. D23/3, para. 40; Obrenovic, T 2433; Butler, T 4324-29.
103 - Response, para. 73.
104 - Response, para. 75 for the burial operation, citing Ex. P513; Ex. P 521; Ex. P535; Ex. P537; Ex. P358, p. 63-78; Butler, T 4555-56; Ex. P515; Ex. P516; Ex. P517; Ex. P522; Ex. P523; Ex. P524; Ex. P536; Ex. P538; and paras 71(3) and 102 to 105 for the reburial operation, citing generally Manning, P130, Ristanovic, Stanojevic and Mitrovic.
105 - Response, paras 76 to 80, citing Mitrovic, T. 5594-95; Stanojevic, T. 5676-77, 5693-94; Ristanovic, T. 5363-64, 5361-62, 5372-75, 5377-78, 5387-93, 5396-5401; Butler, T. 4558, Ex. P358, paras 7.17-7.27, 7.33-7.35, 7.43-7.44, 7.52, 7.55-7.58; Ex.s P514, P515, P516, P521, P522; P507, p.34; P130, T. 6646-47; P538.
106 - Response, paras 102 to 105, citing generally Manning, P130, Ristanovic, Stanojevic and Mitrovic.
107 - Jokic Motion, paras 34 to 44 and 57 to 61.
108 - Jokic Motion, paras 37-43 and 59, citing Ex. P394, Manual for the Work of Commands and Staffs; Butler, T. 4271, 5112- 13, 5268-72 and Ex. P133, Zvornik Brigade Duty Operations Officer Workbook.
109 - Jokic Motion, paras 56-58, citing P138, T. 3680-82; and Obrenovic, T. 2511.
110 - Jokic Motion, para. 44. Jokic's Defence specifically contests the evidence related to the entries and notes in the Duty Operations Officer Workbook.
111 - Jokic Motion, paras 34-36, 60-61.
112 - Response, paras 85-101.
113 - Response, paras 81-83.
114 - Response, paras 82-83, citing Butler, T. 4329-32; Obrenovic, T. 2434-37; Ristanovic, T. 5363- 64.; Mitrovic, T. 5597, 5603; Stanojevic, T. 5677; Ex. P394, para. 66.
115 - Response, paras 85 to 88, citing Ex. P227 and Ex. P229; Ex. P125 and Ex. P307/a; Obrenovic, T. 2587-90 and Butler, T. 4573-74; Ex. P126 and Ex. P233.
116 - Response, paras 89 to 93, citing Ex. P507, Ex. P 716, Ex. P717, Ex. P718, Ex. P133, Ex. P232, Ex. P125; generally testimony of Barr; see also Obrenovic, T. 2498, 2525, 2587, 2612, 2616-17; Butler, T 4582-83, 4585, 4588-89; P130, T 6637-49.
117 - Response, paras 94-100, citing Milosevic, T. 5646, 5648, 5650; P130, T 6584, 6600-22; Petrovic, T. 5499-5507; P113, Ex. P784, KT 2963-65; Obrenovic, T. 2520-2522, 2611; Ex. P115, p.3.
118 - Jokic Motion, para.47.
119 - Jokic Motion, para. 47.
120 - Jokic Motion, para. 48.
121 - Jokic Motion, para. 49.
122 - Response, para. 108.
123 - Supra paras 68 and 71.
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