Case No.: IT-01-47-PT
IN TRIAL CHAMBER II
Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Registrar:
Mr Hans Holthuis
Decision of:
17 September 2003
PROSECUTOR
v
ENVER HADZIHASANOVIC
AMIR KUBURA
The Office of the Prosecutor:
Mr. Ekkehard Withopf
Mr. David Re
Counsel for the Accused:
Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrišimovic and Mr Rodney Dixon for Amir Kubura
(a) Count 1, murder, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on Article 3(1)(a) common to the Geneva Conventions of 1949 (“common Article 3”);
(b) Count 2, cruel treatment, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on common Article 3(1)(a);
(c) Count 3, murder, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on common Article 3(1)(a);
(d) Count 4, cruel treatment, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on common Article 3(1)(a);
(e) Count 5, wanton destruction of cities, towns or villages, not justified by military necessity, a violation of the laws or customs of war, punishable under Article 3 (b) of the Statute;
(f) Count 6, plunder of public or private property, a violation of the laws or customs of war, punishable under Article 3(e) of the Statute;
(g) Count 7, destruction or wilful damage done to institutions dedicated to religion, a violation of the laws or customs of war, punishable under Article 3(d) of the Statute;
(a) Objections relating to Counts 5 to 7 of the Indictment – failure to specify units involved (objection no.4)
(b) Objection relating to the vagueness and inconsistencies regarding “Mujahedin” (objection no.5)
(c) Objection relating to charges at Orasac Camp (objection no.6)
(d) Objection relating to failure to specify individuals or units of the 7th Muslim Mountain Brigade transferred and put under direct command of ABiH 3rd Corps (objection no.8)
(e) Objection relating to the inclusion of new allegations in Counts 3-4 not ordered by the Trial Chamber (objection no.9)
(f) Objection relating to the failure to specify which brigades committed the offences (objection no.10)
any brigade identified in the Amended Indictment as having participated in an operation in which other brigades were present did so as part of a joint operation. The Amended Indictment sufficiently identifies the subordinate units involved in the crimes charged over which the accused are alleged to have superior responsibility.37
(g) Objections raised in Defence Responses to the Prosecution Motion for Leave to Amend the Amended Indictment of 25 April 2003
(i) Objection relating to adding Miletici charges for Amir Kubura
The word "unfairly" is used in order to emphasise that an amendment will not be refused merely because it assists the prosecution quite fairly to obtain a conviction. To be relevant, the prejudice caused to an accused would ordinarily need to relate to the fairness of the trial. Where an amendment is sought in order to ensure that the real issues in the case will be determined, the Trial Chamber will normally exercise its discretion to permit the amendment, provided that the amendment does not cause any injustice to the accused, or does not otherwise prejudice the accused unfairly in the conduct of his defence.53
There is no prejudice caused to the accused if he is given an adequate opportunity to prepare a defence to the amended case. In the present case, in the Trial Chamber’s opinion, there is no suggestion that this amendment will cause an unfair prejudice to the Accused. The procedural objection against the additional charge is therefore rejected.
(ii) Objection to insertion of the offence of “cruel treatment”
(a) ORDERS the Prosecution to file a Third Amended Indictment based on the requirements set out in this decision no later than 26 September 2003, and in particular:
- to amend paragraph 46 of the Second Amended Indictment at least in the same way as paragraph 44;
- to provide, if possible, further details relating to specific units involved in the crimes described in paragraphs 44 and 46, or show good cause;
- to amend the paragraphs 18 and 20 in such a way that the position of the “Mujahedin ” is set out without any ambiguity.
(b) DENIES all remaining objections included in the Joint Defence Response.
Done in both English and French, the English version being authoritative.
Done this seventeenth day of September 2003
At The Hague
The Netherlands
_______________
Wolfgang Schomburg
Presiding Judge
[Seal of the Tribunal]
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