MICT-15-96-PT 172 D172 - D162 17 February 2016 MB MECHANISM FOR INTERNATIONAL CRIMINAL TRIBUNALS Case №: MICT-15-96-PT IN THE TRIAL CHAMBER BEFORE: Judge Burton Hall, Presiding Judge Seon Ki Park Solomy Balungi Bossa REGISTRAR: Mr. John Hocking DATE FILED: 17 February 2016 THE PROSECUTOR V. JOVICA STANIŠIĆ FRANKO SIMATOVIĆ - PUBLIC - SIMATOVIC DEFENCE PRELIMINARY MOTION THE OFFICE OF THE PROSECUTOR: COUNSEL FOR MR. JOVICA STANIŠIĆ: Mr. Hassan Bubacar Jallow, Prosecutor Mr. Wayne Jordash Mr. Mathias Marcussen, Senior Legal Officer Mr. Scott Martin COUNSEL FOR MR. SIMATOVIĆ: Mr. Mihajlo Bakrač Mr. Vladimir Petrović CASE №: MICT-15-96-PT 17 February 2016 171 MECHANISM FOR INTERNATIONAL CRIMINAL TRIBUNALS Case №: MICT-15-96_PT THE PROSECUTOR V. JOVICA STANIŠIĆ FRANKO SIMATOVIĆ PUBLIC SIMATOVIC DEFENCE PRELIMINARY MOTION I. INTRODUCTION 1. On 25 April 2003, the Prosecution submitted an Indictment against Franko SIMATOVIĆ, which was revised and submitted for confirmation on 1 May 2003 and confirmed by Judge Carmelo AGIUS on the same day. 2. Franko SIMATOVIĆ voluntarily surrendered on 30 May 2003, when he was also transferred to the Detention Unit in The Hague, and appeared before the Court on 2 June 2003. 3. On 9 December 2003, the Prosecution submitted its Amended Indictment in line with the decision of the Trial Chamber. 4. On 20 December 2005 the Prosecution submitted its Second Amended Indictment, and on 15 May 2006, in accordance with the decision of the Trial Chamber, the CASE №: MICT-15-96-PT 17 February 2016 170 Prosecution submitted a revised version of the Second Amended Indictment (Revised Second Amended Indictment). 5. On 4 February 2008, the Trial Chamber instructed the Prosecution to reduce the volume of the Indictment, thereafter the Prosecution submitted its Third Amended Indictment on 9 July 2008, on which the Accused will be tried in the new remand proceedings. 6. The trial on the Third Amended Indictment started on 9 June 2009, the Trial Chamber concluded the presentation of evidence in the case on 5 December 2012, and the closing briefs of the parties were filed on 14 December 2012. 7. The Trial Chamber rendered the Trial Judgement on 30 May 2013, acquitting Franko SIMATOVIĆ on all Counts of the Indictment. 8. The Prosecution filed an Appeal against the Trial Judgement, on 11 September 2013, containing three grounds of appeal. The Simatović Defence submitted its Response Brief on 5 November 2013. The Appeal Hearing was held on 6 July 2015. 9. On 9 December 2015 the Appeals Chamber rendered the Appeal Judgement, which was publicly disclosed on 15 December 2015, granting the Prosecution’s Appeal, quashing the Trial Judgment and ordering a re-trial on all Counts of the Indictment. 10. On 18 December 2015, Franko SIMATOVIĆ once again pleaded not guilty to all Counts of the Third Amended Indictment of 2008. 11. On 21 January 2016, the supporting material was delivered to the Simatović Defence. 12. The Defence hereby submits this Preliminary Motion pursuant to Rule 79 (A) (i). CASE №: MICT-15-96-PT 17 February 2016 169 II. APPLICABLE LAW 13. The Statute of the International Residual Mechanism for Criminal Tribunals (hereinafter: the Mechanism), stipulates the competence of the Mechanism in Article 1, and paragraph 2 of the same Article explicitly provides that: “The Mechanism shall have the power to prosecute, in accordance with the provisions of the present Statute, the persons indicted by the ICTY i ICTR who are among the most senior leaders suspected of being most responsible for the crimes covered by paragraph 1 of this Article, considering the gravity of the crimes charged and the level of responsibility of the accused.”, and paragraph 3 of the same Article explicitly stipulates as follows: “The Mechanism shall have the power to prosecute, in accordance with the provisions of the present Statute, the persons indicted by the ICTY and ICTR who are not among the most senior leaders covered by paragraph 2 of this Article, provided that the Mechanism may only, in accordance with the provisions of the present Statute, proceed to try such persons itself after it has exhausted all reasonable efforts to refer the case as provided in Article 6 of the present Statute.” 14. Article 6, paragraph 1 of the Mechanism’s Statute prescribe as follows: “The Mechanism shall have the power, and shall undertake every effort, to refer cases involving persons covered by paragraph 3 of Article 1 of this Statute to the authorities of a State in accordance with paragraphs 2 and 3 of this Article. The Mechanism shall have the power also to refer cases involving persons covered by paragraph 4 of Article 1 of this Statute.”, and paragraph 2 of the same Article stipulates as follows: “After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Mechanism, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of a State: CASE №: MICT-15-96-PT 17 February 2016 168 (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State.” 15. Article 17, paragraph 1 of the Statute stipulates that: “The indictment shall be reviewed by the duty judge or a Single Judge designated by the President. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If so satisfied, the indictment shall be dismissed.“ 16. Rule 79 (A) of the Rules of Procedure and Evidence stipulates that preliminary motions are motions which: (i) challenge jurisdiction; (ii) allege defects in the form of the indictment. III. ARGUMENTS A. PERSONAL JURISDICTION 17. The Simatović Defence holds that, pursuant to the Mechanism’s Statute, the Accused Franko SIMATOVIĆ does not fall under the jurisdiction of the Mechanism according to the seniority criterion stipulated in Article 1 of the Statute. 18. In fact, Article 1, paragraph 2 of the Statute stipulates that the Mechanism has the power to prosecute persons indicted by the ICTY and ICTR who are among the most senior leaders suspected of being the most responsible for the crimes. 19. Specifically, Article 1 of the Statute stipulates the fulfilment of cumulative requirements, one of the requirements is that the person must be indicted by the ICTY, which is the case with Simatović, but in order to be prosecuted by the Mechanism, there is an additional requirement that the Accused must fulfil, specifically, he must be among the most senior leaders suspected of being most responsible for the crimes, and evidently this latter requirement is not met in the case of Franko SIMATOVIĆ. CASE №: MICT-15-96-PT 17 February 2016 167 20. The Indictment itself is prima facie evidence that Franko SIMATOVIĆ was not among the senior leaders suspected of being most responsible for the crimes. At the time relevant for the Indictment, Franko SIMATOVIĆ was one of the many operatives of the State Security (SDB), without any significant management function, which clearly and unequivocally does not make him one of the senior leaders suspected of being most responsible for the crimes, referred to in Article 1, paragraph 2 of the Mechanism’s Statute. 21. The clear and unequivocal conclusion based on the Indictment, the supporting material and the evidence adopted in the Trial Judgement, which was quashed on Appeal, is that at the time relevant for the Indictment, Franko SIMATOVIĆ was not among the senior leaders, stipulated in Article 1, paragraph 2 of the Mechanism’s Statute. 22. In the context of the seniority criterion, Franko SIMATOVIĆ is the person referred to in Article 1, paragraph 3 of the Mechanism’s Statute, which entails that the Mechanism must exhaust all reasonable efforts to refer the case as provided in Article 6 of this Statute. 23. In fact, the Defence holds and proposes that, pursuant to Article 6, paragraph 2, sub- items (ii) and (iii) of the Mechanism’s Statute, Franko SIMATOVIĆ should be referred to the authorities of the Republic of Serbia, to which Franko SIMATOVIĆ voluntarily surrendered, and where he has his residence, and which have jurisdiction and are willing and adequately prepared to accept such a case. 24. The Defence further holds that the Third Amended Indictment submitted to the MICT on 9 July 2008 should first be reviewed by a Single Judge of the Mechanism, designated by the President of the Mechanism, and if satisfied that a prima facie case has been established by the Prosecutor, the Single Judge will confirm the Indictment, in full compliance with Article 17 of the Mechanism’s Statute. 25. Given that the Trial Judgement was quashed and the case was remanded for a new trial, the Defence maintains that the procedure envisaged by the Mechanism’s Statute must be observed. CASE №: MICT-15-96-PT 17 February 2016 166 B. RES JUDICATA 26. The Defence hereby challenges the jurisdiction of the MICT to prosecute Simatović on parts of the Third Amended Indictment of 9 July 2008. The MICT does not have the jurisdiction to prosecute Simatović for the crimes that he was already tried for by the ICTY, and of which Simatović was acquitted. The Trial Chamber’s Judgement was the subject of the Prosecution’s Appeal, in regard to certain parts of the indictment concerning the municipalities in which the alleged crimes were committed. In relation to Simatović, the Prosecution appealed the part of the Judgment that refers to Simatović’s participation in the JCE in the municipality of Sanski Most, or to Simatović aiding and abetting the crimes in the Sanski Most municipality.