Case No. IT-03-67-PT
IN THE TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker
Registrar:
Mr. Hans Holthuis
Decision of:
27 May 2005
PROSECUTOR
v.
VOJISLAV SESELJ
_____________________________________
DECISION ON PROSECUTION’S MOTION FOR LEAVE
TO AMEND THE INDICTMENT
_____________________________________
Counsel for the Prosecutor:
Ms. Hildegard Uertz-Retzlaff
Mr. Ulrich Mussemeyer
Mr. Daniel Saxon
The Accused:
Mr. Vojislav Seselj
Standby counsel:
Mr. Tjarda Eduard van der Spoel
I. BACKGROUND
- Trial Chamber II (“Trial Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia
since 1991 (“Tribunal”) is seised of the “Prosecution’s
Motion for Leave to Amend the Indictment With Confidential
and ex parte Supporting Material” (“Motion”),
filed by the Prosecution on 1 November 2004, whereby
the Prosecution seeks, pursuant to Rule 50 of the
Rules of Procedure and Evidence (“Rules”), leave
to amend the Indictment against Vojislav Seselj
(“Proposed Amended Indictment” and “Accused”).
- On 14 February 2003, the initial indictment against
the Accused was reviewed and confirmed (“Current
Indictment”). On 24 December 2003, the Accused filed
an “Objection to the Indictment” which challenged,
among other things, a number of defects in the form
of the Current Indictment. On 26 May 2004, the Trial
Chamber ordered the Prosecution “to clarify the
ambiguity in paragraph 11 of the Indictment with
respect to the meaning of the word ‘committed’”,1
but dismissed the remaining complaints made by the
Accused.2
- Subsequent to the filing of the Motion, on 2
December 2004, the Trial Chamber ordered the Prosecution
to show good cause why the ex parte supporting
material had not been disclosed to the Accused,
which the Prosecution did. In a decision filed on
21 December 2004, the Trial Chamber stipulated a
time period of two weeks within which the Accused
could file a response to the Motion. The Accused
on 5 January 2005 filed a submission3
in which he requested to be provided with certain
decisions and judgements which have been referred
to in the Motion, before commenting on the substance
of the Motion. The Accused has not made further
submissions regarding the Motion within the prescribed
time -limit, but he has indicated in subsequent
oral and written submissions that he does not object
to the Prosecution expanding the Current Indictment,
provided that this does not lead to a delay in the
commencement of his trial.4
II. DISCUSSION
A. The Law
- The applicable law governing the amendment of
an indictment is contained in Rule 50 of the Rules,
which provides, in relevant part:
(A) (i) The Prosecutor
may amend an indictment
...
(c) after the assignment
of a case to a Trial Chamber, with the leave
of that Trial Chamber or a Judge of that Chamber,
after having heard the parties.
(ii) Independently of any
other factors relevant to the exercise of the
discretion , leave to amend an indictment shall
not be granted unless the Trial Chamber or Judge
is satisfied there is evidence which satisfies
the standard set forth in Article 19, paragraph
1, of the Statute to support the proposed amendment.
(B) If the amended indictment
includes new charges and the accused has already
appeared before a Trial Chamber in accordance
with Rule 62, a further appearance shall be held
as soon as practicable to enable the accused to
enter a plea on the new charges.
(C) The accused shall have a
further period of thirty days in which to file
preliminary motions pursuant to Rule 72 in respect
of the new charges and, where necessary, the date
for trial may be postponed to ensure adequate
time for the preparation of the defence.
- Rule 50 of the Rules does not provide specific
guidelines to a Trial Chamber , after a case has
been assigned to it, for determining whether or
not to allow the amendment of an indictment.5
Where an amendment to an indictment is sought to
ensure that the real issues in the case will be
determined, a Trial Chamber will normally exercise
its discretion to permit the amendment, provided
that the amendment will not prejudice the accused
unfairly.6 Whether the
amendment of an indictment would prejudice the accused
unfairly is determined by two factors in particular:
(1) Is the Accused given an adequate opportunity
to prepare an effective defence ? and (2) Will granting
the amendment result in undue delay?7
- In case the amendment sought includes new charges
against an accused, according to Rule 50(A)(ii)
of the Rules, the Trial Chamber must be satisfied
that these new charges are supported by evidence
establishing a prima facie case against the
accused, in accordance with paragraph 1 of Article
19 of the Statute.8
If this is so and the accused has already made an
initial appearance, according to Rule 50(B) and
(C) of the Rules, the accused is entitled to enter
a plea with regard to the new charges at a further
appearance, and preliminary motions may be filed
regarding the amended parts of the indictment.
B. Suggested amendments concerning the
mode of liability of ‘committing’
- Consonant with the Trial Chamber’s instructions
in its decision of 26 May 2004 ,9
the Prosecution proposes amendments to paragraphs
5, 11 and 29 of the Current Indictment in order
to clarify the ambiguity with respect to the meaning
of the word ‘committed’. In doing so, the Prosecution
suggests adding to paragraph 5 of the Current Indictment,
where the word ‘committed’ is used for the first
time, the following sentence:
Physical commitment is pleaded
only in relation to the charges of persecutions
(Count 1) by direct and public ethnic denigration
(paragraphs 15 and 17(k)) with respect to the
Accused’s speeches in Vukovar, Mali Zvornik,
and Hrtkovci, and by deportation and forcible
transfer (paragraphs 15 and 17(i)) with respect
to the Accused’s speeches in Hrtkovci, and in
relation to the charges of deportation and inhumane
acts (forcible transfer) (Counts 10-11, paragraphs
31-34), with respect to the Accused’s speech
in Hrtkovci.10
- The Prosecution specifically alleges that the
Accused “physically committed the crime of persecution
through the use of illegal ‘hate speech’”.11
In support, the Prosecution is relying on jurisprudence
from the International Criminal Tribunal for Rwanda
finding individuals guilty of having committed persecution
through ‘hate speech’.12
In addition, the Prosecution proposes that, in order
to be consistent with the newly phrased paragraph
5, paragraph 29 of the Current Indictment should
be amended with the following sentence :
As a result of this speech,
a number of Croat residents decided to leave
Hrtkovci.13
- Moreover, in order to further specify the notion
of ‘committed’, the Prosecution seeks to amend paragraph
5 of the Current Indictment to state that the Accused
committed the crimes in question by participating
in a joint criminal enterprise “as a co- perpetrator”.
In paragraph 11 of the Current Indictment, the Prosecution
requests to insert ‘physically’ before the word
‘committed’.14
- The Trial Chamber notes that the Prosecution
was tasked to clarify the ambiguity in paragraph
11 of the Current Indictment by the Trial Chamber’s
decision of 26 May 2004. The Trial Chamber is satisfied
that the proposed amendments to paragraphs 5, 11
and 29 of the Current Indictment are in line with
its earlier decision and specify the meaning of
the word ‘committed’ sufficiently. As no conceivable
prejudice of the Accused arises out of these amendments,
the Trial Chamber will grant this part of the Motion.
C. Suggested amendment concerning the
mode of liability of ‘instigating’
- The Prosecution further requests an amendment
to the charge of ‘instigation’ considering the Appeals
Chamber’s holding in the Blaskic Judgement
that “‘ instigation’ is a distinct form of participation
under Article 7(1) of the Statute and thus when
the Prosecution pleads such a case, the instigating
acts, and the instigated persons and groups of persons
are to be described precisely”.15
Against this background, the Prosecution suggests
that the following specification should be inserted
in paragraph 29 of the Current Indictment:
After the speech, supporters
and associates of the accused, including members
of the SRS and the SCP, began a campaign of
ethnic cleansing directed at non-Serbs, particularly
Croats, in Hrtkovci.
- The Trial Chamber finds that the suggested amendment
to paragraph 29 of the Current Indictment provides,
although not expressly mentioned in the Trial Chamber’s
earlier decision, further specification as regards
the mode of liability of ‘instigating’. However,
the Trial Chamber notes that the acronym ‘SCP’ in
the suggested sentence is introduced without further
explanation as to its meaning, and enjoins the Prosecution
to insert such clarification. However, as no conceivable
prejudice of the Accused arises out of these amendments,
the Trial Chamber will also grant this part of the
Motion, subject to the aforementioned clarification.
D. Addition and removal of allegations
- The Prosecution further requests to add new factual
allegations to the Current Indictment based on recently
obtained evidence and to include crimes allegedly
committed in the municipalities of so-called “Greater
Sarajevo” (consisting of the municipalities of Ilijas,
Vogosca, Novo Sarajevo, Ilidza and Rajlovac) as
well as in Bijeljina, Mostar, Nevesinje and Brcko
(all in Bosnia and Herzegovina), affecting paragraphs
6, 10, 15, 17, 18, 25, 27 and 31 of the Current
Indictment, and adding four new paragraphs after
paragraph 23 of the Current Indictment.
- Further changes proposed by the Prosecution consist
of:
(i) The addition of a reference to ‘children’
as victims of extermination or murder in paragraph
17 of the Current Indictment,16
(ii) The deletion of reference to the “Novi
Izvor building”; the reduction of the number of
killed individuals at the “Ciglane” factory from
two to one; and the insertion of a reference to
the alleged crimes of murder/extermination taking
place in the Drinjaca Dom Kulture in Zvornik;
all in paragraph 22 of the Current Indictment,17
(iii) The designation of the time-period in
which crimes were allegedly committed in parts
of Vojvodina, Serbia, including the village of
Hrtkovci, to be “between May and August 1992”,
instead of “May 1992” as stated in paragraph 27
of the Current Indictment,18
(iv) The addition of a reference to the destruction
of institutions dedicated to religion and education
in Zvornik in paragraph 31 of the Current Indictment.19
- In determining whether the inclusion of new factual
allegations, be it by extension of the geographical
or temporal scope of the Current Indictment, would
constitute an unfair prejudice to the Accused, the
Trial Chamber observes that a date for the commencement
of the trial of the Accused has not yet been scheduled,
and it appears that the Accused will have ample
opportunity to prepare a defence with regard to
the new charges. The Trial Chamber also recognises
the duty of the Prosecution to prosecute the Accused
to the full extent of the law and to present all
relevant evidence before the Trial Chamber.20
Moreover, the Accused has stated himself that he
does not object to the adding of new allegations
against him, provided that this does not result
in a delay of his trial.21
- The Trial Chamber is also satisfied, having reviewed
the supporting material accompanying the Motion,
that there is evidence which meets the standard
set out in Article 19 of the Statute, to support
the amendments sought.
- The Trial Chamber further notes that some of
the proposed amendments would result in the inclusion
of new charges forming a new basis for conviction
not previously included in the Current Indictment,
within the meaning of Rule 50(B) of the Rules. It
will therefore make appropriate orders to safeguard
the procedural rights of the Accused.
- Finding that no prejudice of the Accused arises
out of these amendments, the Trial Chamber will
grant this part of the Motion as well.
E. Suggested amendments concerning clerical
errors22
- Finally, the Prosecution seeks to have several
clerical errors in the Current Indictment corrected.23
The Trial Chamber will grant this request, there
being no conceivable prejudice of the Accused.
III. DISPOSITION
- For the foregoing reasons, pursuant to Rule 50
of the Rules, the Trial Chamber
1. GRANTS the Motion, subject to the
clarification mentioned in paragraph 12 of this
Decision, and DECIDES that the Proposed
Amended Indictment shall be the operative indictment
(“Amended Indictment”) against the Accused;
2. REQUESTS the Registrar to serve the
Amended Indictment to the Accused, in accordance
with the relevant provisions in the Rules;
3. ORDERS that a further appearance shall
be held as soon as practicable to enable the Accused
to enter a plea on the new charges;
4. REMINDS the Accused that within thirty
days, he is entitled to file preliminary motions
pursuant to Rule 72 of the Rules with respect
to the new charges.
Done in both English and French, the English text
being authoritative.
Dated this twenty-seventh day of May 2005,
At The Hague
The Netherlands
____________________
Carmel Agius
Presiding Judge
[Seal of the Tribunal]
1 - Decision on Motion by Vojislav
Seselj challenging jurisdiction and form of the Indictment,
26 May 2004, para. 62(2).
2 - Ibid. The Trial Chamber’s
decision also ordered the Prosecution to clarify the
ambiguity in para. 12 of the Indictment in relation
to Vojvodina/Serbia and the issue of armed conflict.
Upon an interlocutory appeal by the Prosecution, in
a decision of 31 August 2004, the Appeals Chamber
reversed that part of the Trial Chamber’s ruling.
3 - Submission no. 65.
4 - See Status Conference
of 31 January 2005, T. 317; Motion by the accused
for Trial Chamber II to issue a subpoena pursuant
to Rule 54 of the Rules of Procedure and Evidence
(Submission No. 78), p. 3: “The accused, Vojislav
Seselj explained in pittoresque fashion that the Prosecution
can expand the indictment, add thousands of pages,
ascribe thousands of crimes to Professor Vojislav
Seselj, but that the trial should begin as soon as
possible...”.
5 - Prosecutor v. Ljubicic,
Case No. IT-00-41-PT, Decision on Motion for Leave
to Amend the Indictment, 2 August 2002, p. 3.
6 - Prosecutor v. Brdjanin and
Talic, Case No. IT-99-36-PT, Decision on Form
of Further Amended Indictment and Prosecution Application
to Amend, 26 June 2001, para. 50; Prosecutor v.
Naletilic and Martinovic, Case No. IT-98-34-PT,
Decision on Vinko Martinovic’s Objection to the Amended
Indictment and Mladen Naletilic’s Preliminary Motion
to the Amended Indictment, 14 February 2001, p. 7.
7 - Prosecutor v. Beara,
Case No. IT-02-58-PT, Decision on Prosecution Motion
to Amend the Indictment, 24 March 2005, p. 2; Prosecutor
v. Halilovic, Case No. IT-01-48-PT, Decision on
Prosecutor’s Motion Seeking Leave to Amend the Indictment,
17 December 2004, para. 23.
8 - Statute of the International
Criminal Tribunal for the Former Yugoslavia, adopted
25 May 1993 by S/RES 827 (1993) and last amended by
S/RES 1481 (2003)
9 - See note 1 supra.
10 - Motion, para. 3.
11 - Motion, para. 4.
12 - Motion, paras 6-8, referring
to Prosecutor v. Ferdinand Nahimana, Jean-Bosco
Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T,
Judgement, 3 December 2003, para. 1072 and Prosecutor
v. Georges Ruggiu, Case No. ICTR-97-32-I, Judgement
and Sentence, 1 June 2000, para. 22.
13 - Motion, para. 9.
14 - Motion, para. 5.
15 - Motion, paras 10-11, referring
to the Appeal Judgement in Blaskic, Case No.
IT-95-14-A, 29 July 2004, para. 226, which in turn
quotes Prosecutor v. Deronjic, Case No. IT-02-61-PT,
Decision on Form of the Indictment, 25 October 2002,
para. 6.
16 - Motion, para. 16.
17 - Motion, para. 15. In the submission
of the Prosecution, these particular changes will
not result in a longer trial.
18 - Motion, para. 13.
19 - Motion, para. 17.
20 - Prosecutor v. Niyitegeka,
Case No. ICTR-96-14-I, Decision on Prosecutor’s Request
for Leave to File an Amended Indictment, 21 June 2000,
para. 27.
21 - See para. 3 supra.
22 - See para. 10 supra.
23 - Motion, para. 18; such as
the corrected reference to counts 12-14 in para. 7
and before para. 31 (previously: counts 12-15); the
deletion of reference to “unlawful attacks on civilian
objects” before para. 31; and the correction of the
spelling of “Sremska Mitrovica” in para. 21 of the
Current Indictment.
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