Case No. IT-95-14-R77.2
THIS 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 seized of two
motions from the Office of the Prosecutor (“Prosecution”)
to amend the Indictment against Ivica Marijacic and
Markica Rebic, and hereby renders its decision thereon.
I. Procedural History
- The original Indictment against Ivica Marijacic
and Markica Rebic (“the Accused
”) was confirmed on 10 February 2005, charging them
with one count of Contempt of the Tribunal. On 23
June 2005, in part in response to a Motion to Dismiss
the Indictment filed by the accused Ivica Marijacic,
the Prosecution filed a “Motion for Leave
to Amend Indictment” (“first Motion to Amend”). The
Prosecution filed its “Second
Motion for Leave to Amend the Indictment” on 29 August
2005 (“second Motion to Amend
”) (the first Motion to Amend and the second Motion
to Amend are together referred to as the “Motions
to Amend”). On 7 July 2005, the accused Markica Rebic
filed a confidential “Response of the Accused Markica
Rebic to the Prosecutor’s Motion
for Leave to Amend the Indictment” (“Response”) and,
on 11 July, the Prosecution filed a confidential “Reply
to the Response of the Accused Markica Rebic to the
Prosecutor’s Motion for Leave to Amend the Indictment” (“Reply”).
No leave was sought by the Prosecution, pursuant
to Rule 126 bis of the Rules of Procedure
and Evidence of the Tribunal (“Rules”), to file this
Reply.
- Having also been seized of Motions to Dismiss
the Indictment from the Accused, the Trial Chamber
issued a “Decision on Motions to Dismiss the Indictment
and Order on Motions to Amend the Indictment” on
6 September 2005 (“Decision”). In
this Decision, the Trial Chamber ordered the Prosecution
to provide copies of the specific order(s) that
the Accused are alleged to have violated in contempt
of the Tribunal, along with clarification of which
parts of those order(s) the Accused have allegedly
breached, by 9 September 2005. The Trial Chamber
further ordered the Accused to file any remaining
responses to the Prosecution’s first Motion to
Amend and second Motion to Amend, including any arguments
based on the clarifications provided by the Prosecution
pursuant to the Decision, by 16 September 2005.
- On 9 September 2005, the Prosecution filed
a confidential “Response to the
Decision on Motions to Dismiss the Indictment and Order
on Motions to Amend the Indictment” (“Prosecution’s
Response to the Decision”). On 15 September 2005,
following receipt of a Request for Extension of
Time from the accused Ivica Marijacic, the Trial
Chamber issued an Order extending the deadline for
submission of further responses from the Accused
to the Prosecution’s two Motions to Amend until 23
September 2005. On 21 September, a “Defendant Ivica
Marijacic’s Response to the Trial Chamber’s
Order of 6 September 2005 Opposing the Prosecution’s
Motion to Amend, and Motion Pursuant to Rule 73(A)
to Dismiss the Indictment due to Lack of Personal Jurisdiction
and Lack of Subject Matter Jurisdiction” (“Marijacic
Response”) was filed. Similarly, on 23 September, a confidential “Response of the
Accused Markica Rebic to the Prosecutor’s Motions
to Amend and Prosecution’s Response to the Decision
on the Motions to Dismiss the Indictment and Order
on Motions to Amend the Indictment and Motion pursuant
to Rule 73(A) to Dismiss the Indictment due to Lack
of Personal Jurisdiction and Lack of Subject Matter
Jurisdiction” (“Rebic second Response”)
was filed.
- The Prosecution filed a “Reply to the Defendant
Marijacic’s Response to the
Trial Chamber’s Order of 6 September 2005” on 27 September
2005, addressing both the issues raised by the accused
Marijacic in response to the Prosecution’s Motions
to Amend the Indictment and the new motion challenging
jurisdiction. The same day, the Prosecution filed
a similar “Reply to the Response of the Accused Markica
Rebic to the Prosecutor’s Motions to Amend and Prosecution’s
Response to the Decision on the Motions to Dismiss
the Indictment and Order on Motions to Amend the Indictment
and Motion pursuant to Rule 73(A) to Dismiss the
Indictment due to Lack of Personal Jurisdiction and
Lack of Subject Matter Jurisdiction” (together, these
are here referred to as the “Prosecution Replies”).
No leave was sought by the Prosecution, pursuant
to Rule 126 bis, to file these Replies.
II. Submissions of the Parties
A. The Prosecution
- The Prosecution argues that the first Motion
to Amend should be granted as
“the amendments are of a relatively restricted nature,
they do not constitute new charges against the accused,
they set forth the Prosecution’s case in more detail, and they will permit the Trial Chamber to ensure
that the real issues in the case are determined.”1 It further argues
that “there is no prejudice to the accused as the case
is still in an early pre- trial phase and the amendments
concerned will only assist both accused in their ability
to prepare their defences.”2
- The proposed amended indictment, attached by
the Prosecution to its first Motion to Amend, differs
from the original Indictment in the following respects:3
(i) The first sentence of paragraph 3 on page 2 now
reads: “A protected witness
gave a statement to the OTP investigators on the
first and second of August
1997.”4
(ii) Paragraph 6 on page 2 is an entirely new paragraph,
providing details of the three orders that the Accused
are alleged to have violated, being “a. [t]he decision
of Trial Chamber I on the requests of the Prosecutor
of 12 and 14 May 1997 in respect of the protection
of witnesses, dated 6 June 1997; b. [t]he oral orders
issued by the Court during the protected witness’ one
day testimony before the ICTY on December 16th 1997;
and c. [t]he order of the Trial Chamber’s Order for
the Immediate Cessation of Protective Measures for
Witnesses dated 1 December 2000.”
(iii) Paragraph 8 on page 3 now reads: “The article
reveals that both Ivica Marijacic and Markica Rebic
were aware that disclosure and publication of
the identity of the protected witness and of his protected
testimony were prohibited and
in knowing violation of orders of the Trial Chamber.”5
(iv) Paragraph 10 on page 3 is an entirely new paragraph,
which serves to detail the actions of Ivica Marijacic
separately from his co-accused. Ivica Marijacic
is accused of having “knowingly and wilfully interfered
with the administration of justice in three respects
by publishing: (a) the identity of the protected
witness ; (b) the statement of the witness; and (c)
the fact that the witness had testified in non-public
proceedings before the Tribunal.”
(v) Reference to the accused Ivica Marijacic is removed
from paragraph 11 on page 3, and it has also been
altered to read, “Markica Rebic knowingly and wilfully
interfered with the administration of justice in
knowing violation of an Order of a Chamber in three
respects by disclosing: (a) the identity of the protected
witness; (b) the statement and transcript of
the witness, and (c) the fact that the witness had
testified in non-public proceedings before the Tribunal.”6
(vi) The actual charge against the Accused in paragraph
12 on page 3 has been altered, so that it reads: “COUNT
1: Contempt of the Tribunal, punishable under this
Tribunal’s
inherent power, Rule 77(A) and Rule 77(A)(ii)
of the Rules of Procedure and Evidence of the Tribunal.”7
- The changes proposed in the draft indictment
attached to the second Motion to Amend are more
substantial, though less numerous than the changes
proposed in the first Motion. The second proposed
amended indictment incorporates the changes made
in the first proposed amended indictment, and adds
the following further changes :
(vii) The charges against the Accused in paragraph
12 on page 3 have been altered again to read: “By
these acts and omissions, Ivica Marijacic and Markica
Rebic committed
or otherwise aided and abetted in the commission
of: COUNT 1: Contempt of
the Tribunal, punishable under this Tribunal’s inherent
power, Rule 77(A), Rule 77 (A)(ii) and Rule 77
(A)(iv) of the Rules of Procedure and Evidence
of the Tribunal.”8
- The Prosecution submits that these proposed
amendments are necessary “to conform
the Indictment to the latest interpretation of the
law of contempt” following the
Judgement issued in Prosecutor v. Beqa Beqaj,
on 27 May 2005.9
The Prosecution also argues that leave to amend should
be granted as the amendments are of minor importance
and do not add any charges against the Accused. It
repeats that “there is no prejudice to the Accused
as the case is still in an early pre- trial phase.”10
- The parts of the Prosecution Replies that address
the Motions to Amend argue that (a) the Accused
have not provided any support for their position
that there is no basis for the charge of contempt
under Rule 77(A)(iv), (b) the Accused have misinterpreted
the legal effect of Rule 77(A)(iv), which, in the
view of the Prosecution, is that disclosure of a
protected witness’s identity amounts to the frustration
of the Tribunal’s efforts to protect witnesses,
and (c) the Accused have failed to assert any unfair
prejudice that would result as a consequence of
the proposed amendments. The Prosecution also clarifies
that it is not abandoning its claims under Rule
77(A)(ii), but adding a claim under Rule 77(A)(iv)
for “otherwise interfering
with a witness.”11
B. The Defence
(a) The accused Markica Rebic
- In his Response, the accused Markica Rebic
addresses the proposed amended indictment submitted
by the Prosecution in its first Motion to Amend.
He argues that the Prosecution has not met the conditions
for amendment of an indictment set forth in Rule
50(A )(ii) of the Rules. In particular, he states
that the orders identified by the Prosecution, and
which the Accused are alleged to have violated, were
not addressed to him, as he did not participate
in the Blaskic case (this being the case
in the course of which the orders were issued) and
was not subject to orders in that case. He further
argues that there was no way he could have been aware
of the orders in the Blaskic case and so
could not have violated them “knowingly
and wilfully.” Finally, he submits that the allegations
against him are “particularly
absurd when it comes to the Oral orders issued by the
Court during the protected witness’ one day testimony” as
this testimony was given in closed session.12
- Rebic also objects to the insertion of reference
to Rule 77(A) in the proposed amended indictment,
on the grounds that “it would not at all be clear
for which acts punishable under Rule 77(A) Mr. Rebic
would be accused, or in case that the Prosecution
intended to propose an indictment for all of the
acts described in the Rule 77(A), it would not at
all be clear in which way Mr. Rebic is supposed to
have committed those acts.”13 He therefore
argues that the proposed amendment would not meet the
requirements of Rule 47(C) of the Rules.
- In his second Response, Rebic re-states his
objection to the insertion of reference to Rule
77(A), and also objects to the added reference to
Rule 77(A)(iv). He argues that the factual allegations
in the Indictment do not support charges under either
of these. The remaining matters raised in the second
Rebic Response concern a challenge to the jurisdiction
of the Tribunal and are the subject of a separate
decision of the Trial Chamber.
(b) The accused Ivica Marijacic
- In the Marijacic Response, the accused Ivica
Marijacic also objects to the insertion by the Prosecution
of reference to Rule 77(A), in general, in the proposed
amended indictment. He further objects to the addition
of reference to Rule 77( A)(iv), stating that, if
the Prosecution is alleging that he violated the
protective measures orders of a Trial Chamber, it
must proceed pursuant to Rule 77(A)(ii).14
In support of his position, he argues that application
of the principle of statutory construction expressio
unius est exclusio alterius must result in the
conclusion that the judges of the Tribunal intended
to exclude from charges of contempt disclosures of
information that were not in knowing violation of an
order of a Chamber.15
He also argues that the principle that a statute should
be interpreted in a manner that gives meaning to each
of its provisions is applicable and requires rejection
of the Prosecution’s interpretation of Rule 77 and
the Tribunal’s “inherent powers.” The basis of his argument is that Rule 77(A)(ii)
would be rendered meaningless if the Prosecution was
able to charge someone with contempt for disclosing
information about a witness in the absence of an order
of a Chamber, because the Prosecution would never
have to prove knowing violation of an order of a Chamber.16
- Marijacic also argues that the Trial Chamber
which heard the Blaskic
case implicitly rejected the proposition that publication
of the testimony of a witness who is not the subject
of protective measures can nevertheless constitute
interference with the administration of justice and
therefore contempt of the Tribunal. He therefore states
that this rejection by the Trial Chamber hearing the Blaskic
case is irreconcilable with the Prosecution’s argument
that publication of the testimony of a witness can
constitute contempt even in the absence of an order
of a Chamber.17
- Marijacic finally argues that the Prosecution’s
broad interpretation of Rule 77(A) and the Tribunal’s
inherent powers would have a chilling effect on journalists, as they would no longer know what can and cannot
be published.18
- The remaining matters raised in the Marijacic
Response concern a challenge to the jurisdiction
of the Tribunal and are the subject of a separate
decision of the Trial Chamber.
III. The Rules
- The following provisions of the Rules, relating
to contempt of the Tribunal and to the amendment
of indictments, are relevant to the present case:
Rule 77
Contempt of the Tribunal
(A) The Tribunal in the exercise of its inherent
power may hold in contempt those who knowingly and
wilfully interfere with its administration of justice,
including any person who
(i) being a witness before a Chamber, contumaciously
refuses or fails to answer a question;
(ii) discloses information relating to those proceedings
in knowing violation of an order of a Chamber;
(iii) without just excuse fails to comply with an
order to attend before or produce documents before
a Chamber;
(iv) threatens, intimidates, causes any injury or
offers a bribe to, or otherwise interferes with,
a witness who is giving, has given, or about to give
evidence in proceedings before a Chamber, or a potential
witness; or
(v) threatens, intimidates, offers a bribe to,
or otherwise seeks to coerce any other person,
with the intention of preventing that other person
from complying with an obligation under an order
of a Judge or Chamber.
(B) Any incitement or attempt to commit any of the
acts punishable under paragraph (A) is punishable
as contempt of the Tribunal with the same penalties.
[...]
(E) The rules of procedure and evidence in Parts Four
to Eight shall apply mutatis
mutandis to proceedings under this Rule.
[...]
Rule 50
Amendment of Indictment
(A) (i) The Prosecutor may amend an indictment:
[...]
after the assignment of the case to a trial Chamber,
with the leave of that Trial Chamber or a Judge
of that Chamber, after having heard the parties.
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.
IV. Discussion
- Amendment of an indictment is governed by Rule
50 of the Rules, which is applicable in contempt
cases by virtue of Rule 77(E). This Trial Chamber
has concluded elsewhere that “the test for whether
leave to amend will be granted is whether allowing
the amendments would cause unfair prejudice to the
accused.”19
It has also stated that “in determining whether any
prejudice to the accused will follow from an amendment
to the indictment, regard must be had to the circumstances
of the case as a whole.”20
- The decision on whether to grant a motion to
amend an indictment is a discretionary one of the
Trial Chamber (or a Judge), so long as it is satisfied
that there is evidence supporting the amendment
that establishes a prima facie case against
the accused, as required by Article 19(1) of the
Statute. In the jurisprudence of the Tribunal “a prima
facie case on any particular charge exists in
this situation where the material facts pleaded
in the indictment constitute a credible case which
would (if not contradicted by the accused) be a sufficient
basis to convict him of that charge.”21 The prima
facie case test is to be applied by judges reviewing
indictments pursuant to Rule 47 and has also been
incorporated into the consideration of amendments to
an indictment by virtue of Rule 50(A)(ii). Thus, the
judge who reviewed the original Indictment in the
present case must have satisfied himself that there
was a prima
facie case for the charges contained in it and
it is not for the Trial Chamber to revisit that determination.
It follows that it is only if a particular amendment
proposed by the Prosecution amounts to a new charge
that the Trial Chamber must satisfy itself that a prima
facie case for that amendment is established.
- The Trial Chamber must, therefore, consider
each of the amendments proposed by the Prosecution
in its two Motions to Amend to determine whether
they would cause unfair prejudice to the Accused.
An important issue that arises in its consideration
is whether any of the amendments constitute new
charges against the Accused, which would not only
trigger the procedures set out in Rule 50(B) and
(C), but would also require an assessment of whether
the Prosecution has established a prima facie
case for these new charges.
(a) First proposed amendment
- The first proposed amendment listed above is
simply the correcting of a fact
– the protected witness was interviewed by the Prosecution’s
investigators on both 1 and 2 August 1997. This is
supported by the Witness Statement of the witness
that records the “Dates of Interviews” as 1 and 2 August
1997. Neither of the Accused has challenged this proposed
amendment and the Trial Chamber does not consider that
its addition would cause unfair prejudice to the Accused.
(b) Second proposed amendment
- The second proposed amendment is the addition
of a paragraph listing the three orders issued in
the course of the Blaskic proceedings that
the Accused are alleged to have breached. While
this amendment was proposed in the first Motion
to Amend, which was filed by the Prosecution prior
to the Trial Chamber’s Decision
on the Motions to Dismiss, it is important to note
that, in that Decision, the Chamber stated that
it is necessary for the Indictment to specify which
orders the accused are alleged to have violated.22 As
a result, the second proposed amendment provides further
specification of the basis for the existing charge
against the accused. However, it does not add any
new charges, nor does it add any new factual allegations
as the basis of the existing charge. Thus, the Trial
Chamber need not, at this stage, examine the content
of the particular orders alleged to be violated
by the accused and specified in the proposed amended
indictment to determine whether a prima facie case
against the Accused is established. Indeed, when
the original Indictment was confirmed by Judge Orie,
he must have been satisfied that the Prosecution
had established a prima facie
case against the Accused for the contempt charge
as originally formulated, and it is not for this Trial
Chamber to revisit his decision.
- The Trial Chamber does not consider that the
addition of the second proposed amendment would
cause unfair prejudice to the Accused and, indeed,
the Prosecution was ordered in our Decision on the
Motions to Dismiss the Indictment to provide the
information contained in this proposed amendment.
(c) Third and fourth proposed amendments
- The third proposed amendment is connected to
the fourth, insofar as it provides further details
on the specific action allegedly committed by the
accused Marijacic. Marijacic is alleged to have “published” information
that was “disclosed” by
Rebic. Both Accused are alleged to have known that
publication and disclosure were prohibited and in
violation of orders of the Trial Chamber. The addition
of the words “publication” and “publishing” in the
third and fourth proposed amendments, with specific
reference to Marijacic, serves to clarify the form
his unlawful disclosure of information took, and
therefore does not amount to a new charge against
him.
- The deletion of the word “knowing” from paragraph
8 does not substantially alter the meaning of the
paragraph as it already states that the Accused acted
with awareness of both the prohibited nature of
their actions and that their actions were in violation
of orders of the Trial Chamber. The insertion of
the word “prohibited” may be superfluous, for if the Accused were aware
that their actions were in violation of orders of
the Trial Chamber, then they also knew that their actions
were prohibited. However, the addition of this word
does not constitute a new charge, and the Chamber
does not consider that the third and fourth proposed
amendments would cause unfair prejudice to the Accused.
(d) Fifth proposed amendment
- In light of the fourth proposed amendment,
the fifth proposed amendment seeks to remove reference
to the accused Marijacic from the following paragraph.
The paragraph therefore specifies the action allegedly
taken by Rebic, namely the disclosure of the specified
information. Rebic is accused of disclosing not only
the statement of the protected witness, but also
now the transcript of his testimony before the Tribunal.
Paragraph 6 of the original Indictment states that
Rebic provided Marijacic with the identity of the
protected witness, copies of his statement to Prosecution
investigators, and the transcript of his testimony
in the Blaskic proceedings. However, paragraph 9 of the original Indictment,
which comes immediately before the actual charge
and which lists the three things the two Accused
are alleged to have done “in knowing violation of
an order of a Chamber” makes no mention of disclosure
of the transcript of the protected witness’ testimony
before the Tribunal. The proposed amendment might,
therefore, be considered as adding a new factual
allegation underlying the offence of contempt.
- This Trial Chamber has held elsewhere that “where
[a] new allegation could be the sole action or omission
of the Accused that justifies his conviction, that
amendment is a “new charge” for the purposes of
Rule 50.”23
In the present case, the action allegedly committed
by Rebic was the disclosure of certain information
and the addition of the transcript to the list of items
allegedly disclosed by him does not add substantively
to his “action.” Moreover, the Trial
Chamber is of the view that the reference to disclosure
of the transcript by Rebic in paragraph 6 of the Indictment
gave sufficient notice to this accused of the allegations
against him, and does not consider that the added
reference to the transcript in the proposed amended
indictment constitutes an entirely new factual allegation.
It does not, therefore, amount to a new charge against
the accused Rebic. In addition, neither of the Accused
have objected to the addition of reference to the transcript
and the Trial Chamber does not consider that it would
cause unfair prejudice to the Accused.
- The deletion of the text “in knowing violation
of an Order of a Chamber” from
paragraph 11 seems to be part of the Prosecution’s
attempt to move away from emphasis on Rule 77 (A)(ii)
in favour of a broader focus on Rule 77(A) as a whole,
and the Tribunal’s inherent power to prosecute and
punish contempt, which is discussed below. The Trial
Chamber does not consider that the deletion of this
text substantially alters the meaning of the paragraph
nor the nature of the charges against the Accused,
nor does it cause them unfair prejudice.
(e) Sixth and seventh proposed amendment
- The sixth and seventh amendments raise questions
about the scope of the crime of contempt before
the Tribunal. In particular, these proposed amendments
relate to the underlying forms of commission of
the crime of contempt and the modes of liability.
Where the difference between the underlying forms
of commission enumerated is substantive, and where
an accused could be found guilty on the basis of
one form of commission and not guilty on the basis
of another, then there are in essence multiple charges.
In such cases, the Trial Chamber must consider whether
the Prosecution has established a prima facie case
against the Accused for the added underlying form
of commission. Similarly, the addition of a new form
of liability (aiding and abetting in the commission
of contempt) amounts to a new charge for which a
prima facie case must be established.
- The Trial Chamber will first address the proposed
addition of reference to Rule 77(A) and Rule 77(A)(iv)
to paragraph 12 of the amended indictment and then
turn to a consideration of the addition of “aiding
and abetting” in the commission
of contempt.
(i) Rule 77(A) and Rule 77(A)(iv)
- The inherent power of the Tribunal to prosecute
and punish individuals for contempt is well established
in the jurisprudence of the Tribunal.24
Rather than being an exhaustive articulation of the
crime, Rule 77 of the Rules expresses “only the general
contours” of contempt.”25
As indicated by the language contained at the beginning
of paragraph (A) of Rule 77, individuals who knowingly
and wilfully interfere with the administration of
justice by the Tribunal may be found in contempt when
they engage in conduct
including those forms listed in sub-paragraphs
(i) to (v), but these forms of commission do not constitute
an exclusive list. It is therefore possible for a
person to be charged with contempt of the Tribunal
under the inherent power of the Tribunal articulated
in Rule 77(A) where there is evidence of knowing and
wilful interference with its administration of justice
that does not fit within one of the categories articulated
in sub-paragraphs (i) to (v). Similarly, it may be
possible for an individual to be charged with contempt
of the Tribunal under one of the sub -paragraphs of
Rule 77(A), and also charged under the general
power expressed in the opening language of Rule 77(A),
if additional facts are alleged that indicate action
by the accused person that cannot be fit within one
of the sub-paragraphs (i) to (v). It follows also
that a person can be charged with contempt under more
than one of the sub-paragraphs (i) to (v) where there
is evidence of forms of conduct that can fit within
more than one of these sub-paragraphs.
- The Prosecution does not explain in its first
Motion to Amend what the reason is for its insertion
of “Rule 77(A)” into paragraph 12. Whereas previously
the Accused were charged with contempt punishable
under the inherent power of the Tribunal and Rule
77(A)(ii) (disclosure of information relating to
proceedings in knowing violation of an order of
a Chamber), by its proposed amendment the Prosecution
maybe seeks to include the possibility of the application
of Rule 77(A) as a separate charge. It is unclear
what the basis of such a possible extension could
be, as there is nothing in the material filed that
suggests that the Accused engaged in any action
that falls outside the scope of one of the sub-paragraphs
of Rule 77( A), namely Rule 77(A)(ii). Indeed, the
material filed suggests that the actions of the
Accused fall within Rule 77(A)(ii), as originally
charged in the Indictment, and there are no allegations
of additional conduct on the part of the Accused
that does not fall within the scope of that sub-paragraph.
- The position in relation to the proposed addition
of reference to Rule 77(A )(iv) is similar. The Prosecution
could charge an accused person with contempt punishable
under Rule 77(A)(ii) and 77(A)(iv) were it
to provide a separate factual basis for the additional
underlying form of commission. If it is relying
on the same factual basis, but is not certain whether
the Trial Chamber will find that all of the elements
of one form of commission are proven, it may alternatively, or indeed cumulatively, charge the accused person
on the basis of a second form of commission. In
the present case, the Prosecution could charge the
Accused on the basis of Rule 77(A)(ii) and/or 77(A)(iv).
- Whether the Accused are charged in the cumulative
or the alternative, the addition of references to
new forms of commission requires the Trial Chamber
to be satisfied that the Prosecution has established
a prima facie case against them. The
relevance of Rule 77(A)(iv) to the facts of the present
case is not immediately apparent and it is therefore
difficult to conclude that a prima facie case
has been established for a charge under Rule 77(A)(iv).
In its Replies, the Prosecution appears to be relying
upon an interpretation of “otherwise interfering
with a witness
” which it has taken from an Appeals Chamber judgement
on contempt in the Aleksovski
case.26 In
that case, as an example of the kind of conduct that
might be considered to constitute contempt drawn from
the United Kingdom, the Appeals Chamber mentions the
publication of a witness’ identity
where protective measures have been granted, “where
contempt is based not upon the violation of an order
granting protective measures but because the disclosure
interfered with the administration of justice.”27
The Prosecution seeks to use this quotation in support
of an argument that publication of a protected witness’s
identity amounts to “interfering with a witness” although
the quoted text would seem more supportive of the
charge under Rule 77(A) in general.
- The Trial Chamber therefore rejects the proposed
addition of Rule 77(A)(iv), as there are no material
facts pleaded in the amended indictment that constitute
a credible case which would (if not contradicted
by the accused) be a sufficient basis to convict
the Accused of threatening, intimidating, causing
any injury or offering a bribe to, or otherwise
interfering with, a witness who is giving, has given,
or is about to give evidence in proceedings before
a Chamber, or a potential witness.28
- In addition, the Trial Chamber is not satisfied
that there are material facts pleaded in the amended
indictment that constitute a credible case which
would (if not contradicted by the accused) be a
sufficient basis to convict the Accused under Rule
77(A) as a charge separate from that made
under Rule 77(A)(ii). The Prosecution has provided
no explanation, nor any distinct factual basis for
its proposed addition of Rule 77(A). If, as appears
to be the case, the Prosecution is alleging the
commission of contempt under of Rule 77(A) on the
basis of the same facts as for the commission of
contempt under Rule 77(A)(ii), the addition of a
specific reference to Rule 77(A) is unnecessary.
As form of commission of the crime of contempt articulated
in Rule 77(A), Rule 77(A)(ii) incorporates the general
language and requirements of Rule 77(A).
(ii) Aiding and abetting the commission of contempt
- In the Beqaj case, the accused was charged
with participating in: count 1, contempt; count
2, attempted contempt; and count 3, incitement to
contempt of the Tribunal. Elsewhere in the indictment,
he was alleged to have “incited, attempted
to commit, committed or otherwise aided and abetted
in the commission of
contempt of the Tribunal.”29 In its
final judgement in that case, Trial Chamber I concluded
that count 1 of the indictment encompassed the two
forms of responsibility of “commission” and “aiding
and abetting.”30 The Trial Chamber went on to
find the accused guilty under count 1 of contempt,
and not guilty of attempted contempt and incitement
to contempt. It did not, however, specify whether it
had found him guilty of committing contempt or of
aiding and abetting contempt.
- It is not clear from its judgement whether
Trial Chamber I considered that
“aiding and abetting” is a form of responsibility that
is within the jurisdiction of the Tribunal with regard
to contempt, as it did not discuss the matter. However, “aiding
and abetting” contempt is not contemplated
within Rule 77. The question is, therefore, raised
whether it is possible for the Tribunal to prosecute
or convict a person of aiding and abetting contempt.
The Appeals Chamber has taken the view that each of
the formulations in Rule 77(A) to (D) falls within,
but does not limit, the inherent power of the Tribunal
to prosecute and punish contempt.31
It has also found that “the content of [the Tribunal’s]
inherent power may be discerned by reference to the
usual sources of international law.”32
- This Trial Chamber concludes that, while Rule
77 does not on its face contemplate aiding and abetting
contempt, the prosecution of an individual for this
form of liability must fall within the inherent
power of the Tribunal as a lesser form of commission
liability.
- Applying the test in the Halilovic Decision,
the addition of “aiding and abetting
” would introduce a basis for conviction that is factually
and legally distinct from any already alleged in the
Indictment, and it must therefore be considered as
a new charge. The Trial Chamber is not, however, satisfied
that the Prosecution has established a prima facie case
against either of the Accused for aiding and abetting
the commission of contempt, as it has provided no information
about whom they are alleged to have aided and abetted
or what their actions were that constituted aiding
and abetting the commission of the crime. For this
reason, the Trial Chamber rejects the proposed addition
of aiding and abetting liability proposed by the Prosecution.
III. Disposition
- Pursuant to Rule 50 of the Rules, the Trial
Chamber hereby GRANTS the
Motions to Amend in the following respects:
(a) The first proposed amendment is granted in full;
(b) The second proposed amendment is granted in full;
(c) The third proposed amendment is granted in full;
(d) The fourth proposed amendment is granted in full;
(e) The fifth proposed amendment is granted in full;
and
DENIES the Motions to Amend in the following
respects:
(f) The sixth proposed amendment is denied;
(g) The seventh proposed amendment is denied.
- Pursuant to Rule 54, the Trial Chamber ORDERS as
follows:
(1) The Prosecution shall file an amended Indictment
within seven days of the date of this Decision.
Done in both English and French, the
English text being authoritative.