Case No. IT-04-74-PT
Introduction
- This Trial Chamber (“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 the “Prosecution’s Submission of Proposed Amended
Indictment and Application for Leave to Amend” filed
on 2 September 2005 (“Application”) and to which are
attached the “Proposed Amended Indictment” and ex-parte confidential
supporting material.
- The Application is made in accordance with
the Chamber’s Decision on Defence
Preliminary Motions Alleging Defect in the Form of
the Indictment dated 22 July 2005 ("22 July 2005
Decision”), in which the Chamber granted in part
the Accused’s
motions on the form of the indictment1
filed pursuant to Rule 72(A)(ii) of the Rules of Procedure
and Evidence of the Tribunal (“Rules”) and ordered
the Prosecution to file a new indictment within fourteen
days of the filing of this decision in which it should
(a) indicate in italics those changes made pursuant
to the terms of this decision (b) indicate in bold
those amendments for which leave is sought (if any).2
- On 4 August 2005, the Prosecution requested
an extension of time to submit an amended indictment
on the grounds that additional time to conduct extensive
efforts to research various items is required and
that the ensuing “amendments will in no
substantial way affect the crimes or theories of responsibility
charged in this case, so that nothing about the
anticipated changes prevents the Accused in any
way from going forward with or continuing their preparation.”3
The request was granted on 25 August 2005; the Chamber
ordered that the amended indictment be filed by 5
September 2005.
- On 19 and 20 September 2005, the Defence for
each accused in this case filed a Response (or a
notice to join a Response) opposing the Application
on the grounds that (1) the Prosecution failed to
implement all of the Chamber’s orders of July
2005, (2) the proposed indictment include new charges,
and (3) there are defects in the form of the Proposed
Amended Indictment.4
- The Chamber notes that the material in support
of the amendments sought by the Prosecution was
not disclosed to the Defence with the Application.
As a matter of principle, because of the Prosecution’s
prosecutorial discretion, the Defence is not involved
in the assessment of whether a charge brought by
the Prosecution against a suspect - or an accused
once the case is before a Trial Chamber - is supported
by material establishing a prima facie case.
However, in the instant case, the Prosecution submits
that the ex-parte confidential material attached
to the Application is, in particular, in support
of clarifications and not in support of new charges.
- On 7 October 2005, the Chamber issued a confidential “Order
for Disclosure of Material in Support of Proposed
Amendments to Indictment”, whereby it ordered
(1) the Prosecution to disclose the confidential and ex
parte material attached
to the Application to the Defence for the Accused and
(2) the Defence to “provide, within five working days of this Order, comments,
if any, which will be limited to 800 words, in addition
to the observations they have already made in their
respective Responses to the Application” and (3) the
Prosecution to seek certification under Rule 73 of
the Rules, if any, before 10 October 2005 in order
to limit any further delay in the commencement of
the trial in this case.
- On 10 October 2005, the Prosecution filed the “Prosecutor’s
Submission in Response to Trial Chamber’s Order
for Disclosure of Material in Support of Proposed
Amendments to the Indictment” whereby it submitted
that it had disclosed almost all of the material
in support of the sought amendments. The same day,
the Petkovic Defence filed the “Urgent Motion for
the Defence for the Accused Petkovic for Clarification
of the Trial Chamber’s Decision of 7 October 2005” whereby
it sought clarifications concerning (1) which proposed
amendments are clarifications, (2) since when the
disclosed material was in the possession of the
Prosecution, (3) whether the additional comments
should pertain only to the disclosed supporting
material and (4) whether it is appropriate to set
a deadline of five days for the Defence to provide
comments.
- The Chamber does not consider that the Petkovic
urgent motion raised substantial matters. The Prosecution
submits in the Application that all proposed amendments
are clarifications and not new charges, therefore
it is logic that the Prosecution does not identify
which portions of the newly disclosed supporting
material pertain to new charges. The issue of the
alleged tardiness of the Prosecution in proposing
amendments to the Indictment is already discussed
in the Petkovic Response. The knowledge of the
exact date at which the Prosecution entered into
the possession of the newly disclosed material does
not bring any substantial weight to the “tardiness
”arguments already raised in the Petkovic Response.
The content of the Order of 7 October 2005 makes clear
that disclosure was for the Defence to make comments,
if any, pertaining to the newly disclosed supporting
material. Finally, the Chamber reaffirms that the
Defence had sufficient time to make appropriate comments,
if any, within the deadline set.
- On 17 October 2005, the Petkovic Defence filed
the “Addendum to the Response
of the Accused Petkovic Defence to the Prosecution’s
Submission of Proposed Amended Indictment and Application
for Leave to Amend, with Necessary introductory Remarks
” (“Addendum”) whereby it makes arguments concerning
the nature of the amendments proposed by the Prosecution
which were already raised in the Petkovic Response5
and submits without further elaboration that the “new
supporting material disclosed to the Defence does
not support the impugned amendments.”6
Rule 50 of the Rules
- The Application is made pursuant to Rule 50
of the Rules of Procedure and Evidence (“Rules”)
which governs the amendment of indictments. Rule
50 (A) provides modalities concerning the competent
judge and time at which an indictment may be amended.
Rule 50 (B) expressly addresses the issue of new
charges, without specifying whether new charges
can only be based upon new facts, and Rule 50 (C)
contemplates that the accused may require additional
time to prepare for trial as a result of an amendment
that involves adding a further count.7
- The first substantive question the rule is
concerned with is the type of amendment which may
be made to an indictment. The Defence opposes the
Prosecution’s submission
that the Proposed Amended Indictment does not add any
new counts or any new “crime
base” and that the “crime base” charged in this case
is exactly the same, and the same twenty-six counts
are charged and that “a motion to amend an indictment
may generally be allowed to clarify or further develop
the factual allegations found in the confirmed indictment,
and to make minor changes to the indictment”.8
- In particular, the Defence for the Accused
complain that the Proposed Amended Indictment includes
new charges because the amendments to paragraphs
27 and 37 of the Indictment are expanding the allegations.9
The Praljak and Prlic Defence assert that in such a
case, the Prosecution must submit supporting material
for those new charges to enable the Chamber to establish
a
prima facie case or if the Chamber finds that the
assertions in paragraphs 27 and 37 of the proposed
amended indictment are not new charges, then the Defence
requests the Prosecution to eradicate these assertions
which are unfounded and unsupported speculations prejudicial
to the Accused.10
- A similar point of contention arose between
the parties in the Halilovic
case and Trial Chamber III reviewed relevant case-law
concerning what constitutes a “new charge” and considered
that “When considering whether a proposed amendment
results in the inclusion of a “new charge,” it is
appropriate to focus on the imposition of criminal
liability on a basis that was not previously reflected
in the indictment. ?…g the key question is, therefore,
whether the amendment introduces a basis for conviction
that is factually and/or legally distinct from any
already alleged in the indictment”.11 In other words,
a new allegation, even without additional factual allegations,
which could be the sole legal basis for an accused’s
conviction is a “new charge” and if a new allegation
does not expose an accused to an additional risk
of conviction, then it cannot be considered as a
new charge.12
- In relation to the addition of new charges
even in the absence of new factual or evidentiary
material, this has been accepted in other cases before
the ICTY and the ICTR.13 For instance, in the
Naletilic and Martinovic case, the Trial Chamber
agreed to add a new charge of “Dangerous or Humiliating
Labour” in the absence of new evidence.14
In the Musema case, the Trial Chamber allowed
a new charge of complicity in genocide as an alternative
to the existing charge of genocide rather than as
an additional count.15 Also, in the
Niyitegeka case, the Trial Chamber said that
new charges could be added to an indictment to “allege
an additional legal theory of liability with no new
acts
”.16 In
sum, although the case-law of the ICTY and the ICTR
on the exercise of the discretion contained in Rule
50 demonstrates that a decision to accept an amendment
will normally be forthcoming unless prejudice can
be shown to the accused, it still remains understood
that amendments prompted by newly discovered evidence
must be supported by prima facie evidence.
- The second substantive question Rule 50 is
concerned with and which is the second key consideration
for the Chamber in granting leave to amend the indictment, is to ensure that the Accused are not prejudiced
by an amendment of the indictment against them in
the conduct of their defence. In this regard, the
Petkovic Defence complains that “the substantial
portion of the proposed amendments would cause unfair
prejudice to the accused.”17
- Although there are no express limits on the
exercise of the discretion contained in Rule 50,
when viewing the Statute and Rules as a whole, that
discretion must be exercised with regard to the
right of the accused to a fair trial. In particular, depending on the circumstances of the case, the right
of the accused to an expeditious trial, to be promptly
informed of the charges against him, and to have
adequate time and facilities for the preparation
of his defence, potentially arise when considering
objections to an amended indictment.18
Also, when deciding the question of whether the amendment
results in any prejudice to the accused, due consideration
must be given to the “Prosecutor’s unfettered
responsibility to prosecute the accused to the full
extent of the law and to present all relevant evidence
before the Trial Chamber”.19
- Thus, 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. If for instance additional
time to prepare the conduct of the defence is given
to the accused, an amendment does not need to result
in prejudice to the accused.20 The delay to the trial
of the Accused resulting from the amendment should
not be unreasonable in light of the complexity of
the case and when considering the crimes contained
in the existing indictment at the time of his arrest,
so that his right to be promptly informed of the
charges against him is not violated by the amendment.
Such considerations may not be relevant though if
the amendments sought by the Prosecution are not
new charges but clarifications of the factual or
legal basis of the Indictment. Therefore, the Chamber
emphasises that the decision of whether any prejudice
to the Accused will follow from an amendment to
the indictment is taken in light of all aspects
of the case.
The amendments proposed by the Prosecution
- The Prosecution makes the general argument
that the proposed amendments will not cause prejudicial
delay and should be allowed in view of the fact that
the indictment against the Accused, by Tribunal’s
standards, is narrow in scope in that the Proposed
Amended Indictment does not add any new counts or
any new “crime base” and that
in “practically all instances, the proposed amendments
primarily clarify or specify the allegations already
made against the Accused”.21
The Prosecution explains that “for example, an error
was recognised early in these proceedings, concerning
Count 25, in Paragraph 229, in that the citation incorrectly
indicated Article “3(d),” when the correct citation
is Article 3, without the “(
d).” This has now been corrected”.22
- The Prosecution further observes that this
case is “still some months away
from trial (with no firm trial date yet scheduled)
and certainly the Defence cases are more than eighteen
months away. The Prosecution submits that none of
the proposed amendments fundamentally alter the
existing case.”23
- The Defence of the Accused Petkovic argues
that “the substantial portion of
the proposed amendments would cause unfair prejudice
to the accused”24
and that the Prosecution “fails to support the proposed
amendments by any relevant arguments”.25 Inter alia, the
Petkovic Defence submits that unfair prejudice to the
Accused would occur because the nature of the Impugned
proposed amendments is “of the utmost gravity” and
their scope is “broadened to the maximum extent” but
also because the proposed amendments would “inevitably
cause the postponement of the trial, since the new
charges and new forms of liability alleged would trigger
numerous defence motions pursuant to Rule 72 of the
Rules and require adequate time for their consideration” and “the
Defence estimates that in the circumstances it would
need at least year and a half for additional investigation
and preparation.”26
The Petkovic Defence also suggests that “the Prosecution
seeks to amend the Indictment in such substantial
way a year and a half after the initial appearance
of the accused took place without any reasonable explanation
for doing so” and prior notice although
the trial was scheduled to start on 1 December 2005.27
- The Chamber recalls that the showing of whether
amendments to an indictment are brought forward
in a timely manner and do not cause prejudicial delay
must be
“measured within the framework of the overall requirement
of the fairness of the proceedings.”28 The Chamber is satisfied
that in the present case there is no suggestion that
the Prosecution seeks an improper tactical advantage
by filing the Application. Furthermore, the Chamber
is satisfied that the Prosecution seeks to amend the
Indictment following the 22 July 2005 Decision which
allowed the Prosecution to propose amendments to the
Indictment.29
The Chamber will examine whether the amendments sought
are such in scope, having had due regard to the case
as a whole, that, at the outset, the Accused’s right
to a fair trial would be prejudiced if leave to amend
the Indictment was granted.
- The Trial Chamber turns now to examine the
proposed amendments to the Indictment.
Proposed amendments in paragraphs referencing the
Counts
- The Prosecution proposes to make the following
amendments referencing the counts of the Indictment:
(a) references to Counts 12, 13 and 14 (conditions
of confinement) which were omitted by oversight
are added in paragraph 60 to reflect the crimes alleged
in Prozor in paragraph 57. Similar amendments are
made in paragraph 153. While paragraphs 148 and
149 refer to the crime of unlawful labour in Ljubuski,
paragraph 153 did not refer to Count 18, while paragraph
229 did refer to paragraphs 148 and 149 under Count
18 (unlawful labour);30
(b) paragraph 229 of the Indictment is amended to correct
the reverse situation. In paragraph 229 under Counts
19 and 20 (destruction of property), there was no
reference to the destruction of property in Mostar,
despite the fact that paragraphs 116 and 118 allege
that this crime occurred there. Consequently, this
error is corrected by inserting those references
in Counts 19 and 20;31
(c) the amendment in paragraph 229 of the Indictment
(Count 25) concerns an error in the citation to
Article 3(d), and the amendment deletes the “(d).”32
- The Petkovic Defence argues that “the Prosecution
seeks to introduce, without justification whatsoever,
new charges through paragraphs [ …] 60, 150, 151,
153, 159 and thus considerably extends the 'crime
base' of the Indictment.”33
- The Chamber is not convinced by the argument
of the Defence. The Chamber is satisfied that the
proposed amendments are minor, clarify the factual
allegations found in the Indictment and do not cause
prejudice to the Accused.
- The Chamber grants leave to the Prosecution
to amend the indictment to include the aforementioned
proposed amendments.
Proposed amendments to figures on number of victims
- The Prosecution seeks leave to amend paragraphs
130, 138 and 139 of the Indictment as well as the
annexes to the Indictment to reflect a change in
number of victims killed or wounded.34
- The Prosecution submits that the amendments
to the figures on the number of victims are due
to a continuing review of the evidence and other
considerations, which resulted in some names being
deleted from these lists, while other names are
added. Additionally, the spellings of some of the
victim’s names have been corrected.35 The
Prosecution emphasizes that the total figures have
not changed significantly, and in the case of paragraph
139, the number has actually been reduced by one,36
and that none of these amendments substantially change
the Prosecution case.37
- The Defence makes no arguments in relation
to those proposed amendments. The Chamber is satisfied
that the proposed amendments clarify the factual
allegations found in the Indictment and do not cause
prejudice to the Accused.
- Accordingly, the Chamber grants leave to the
Prosecution to amend the indictment to include the
aforementioned proposed amendments.
Proposed amendments in paragraph 16 of the Indictment
- The Prosecution proposes to amend paragraph
16 of the Indictment in order to respond to the
Accused’s previous request to have more information
concerning members of the joint criminal enterprise
alleged in the Indictment. The Prosecution also
proposes to add a new paragraph 16.1 to make paragraph
16 of the Indictment clearer and in conformity with
the evolving Tribunal jurisprudence on joint criminal
enterprise and co-perpetration.38
- The Prosecution explains that the amendments
in paragraph 16 and the addition of a paragraph
16.1 in the Indictment may appear more substantial
than the other changes in the Proposed Amended Indictment
but that “a comparison of the new language
to the prior Paragraph 16 indicates that the vast majority
of the language is exactly the same”.39 To the Prosecution,
“the single most operative word in Paragraph 16.1 is
the word “through” because
the paragraph is intended to cover the situation where
a joint criminal enterprise is pursued or accomplished,
or the crimes therein committed, through persons who
may or may not themselves be members of the joint
criminal enterprise.”40
- The Stojic Defence opposes the addition of
the names of Dario Kordic, Tihomir Blaskic and Mladen
Naletelic to paragraph 16 (and to new paragraph 16.1)
of the Indictment. The Stojic Defence reasons that
by adding the names of those persons as known members
of the joint criminal enterprise, the Prosecution “enlarged
the geographical scope of the case because Tihomir
Blaskic and Dario Kordic were indicted for the attack
on several places in Central Bosnia, among which
the village of Ahmici.”41
- The Chamber cannot see how by naming known
participants to the alleged join criminal enterprise,
the geographical scope of the Accused’s case is being
enlarged. The geographical scope of the case against
the Accused is clearly set out in the Indictment.
It is not a reasonable assumption to consider that
because the Prosecution adds names of known members
of the joint criminal enterprise - at the previous
request of the Defence- and which happen to be the
names of persons convicted by the Tribunal, it necessarily
ensues that the scope of this case is enlarged to
subsume the geographical scope of the cases of those
convicted persons.
- The Petkovic Defence opposes the addition of
a paragraph 16.1 (and paragraphs 218-225) to the
Indictment on the grounds that the Prosecution seeks
by doing so to introduce “new modes of commission
of crimes and new forms of criminal liability against
the accused for each particular crime charged – indirect
perpetration. This also introduces new charges against
the accused, since this particular mode of commission
of the crime(s) and corresponding form of liability,
including JCE, with the specific actus reus and
mens rea requirements. The Prosecution’s assertion
that this is done in accordance to the ICTY jurisprudence
is incorrect and misleading”.42
- Paragraph 16.1 of the Proposed Amended Indictment
states as follows:
16.1. In addition and in the alternative, the members
of the joint criminal enterprise, including Franjo
Tudjman, Gojko Susak, Janko Bobetko, Mate Boban, JADRANKO
PRLIC, BRUNO STOJIC, SLOBODAN PRALJAK, MILIVOJ PETKOVIC,
VALENTIN CORIC, BERISLAV PUSIC, Dario Kordic, Tihomir
Blaskic and Mladen Naletelic (also known as “Tuta”),
and others, implemented the objectives of the joint
criminal enterprise through the following organisations
and persons, who whey controlled, directly or indirectly
: members of the Herceg-Bosna/HVO leadership and authorities
(as described in Paragraph 25), including various
officials and members of the Herceg-Bosna/HVO government
and political structures, at all levels (including
in municipal governments and local organisations);
various leaders and members of the HDZ ad HDZ-BiH,
at all levels; various officers and members of the
Herceg-Bosna/HVO forces (as described in Paragraph
25); various members of the armed forces, police, security
and intelligence services of the Republic of Croatia;
and other persons, both known and unknown.
- Current paragraph 16 of the Indictment first
states that “Numerous persons
participated in this joint criminal enterprise. Each
participant, by his or her acts, omissions, practices
or conduct, both individually and in concert with
or through other persons, substantially contributed
to carrying out the enterprise and accomplishing
its purpose”, then lists those participants and finally
provides that “These persons led, directed, planned,
prepared, encouraged, promoted, instigated, ordered,
committed, carried out, facilitated, participated
in, contributed to, supported and otherwise acted
in furtherance of the joint criminal enterprise.”
The apparently major change in proposed paragraph 16.1
is the allegation that the Accused and other persons
implemented the objectives of the joint criminal enterprise
through organisations and persons [which are listed
in current paragraph 16], who whey controlled, directly
or indirectly.
- The Chamber deems that this addition does not
amount to a new charge. The proposed paragraph 16.1
may not constitute in itself a factual basis for
a conviction. The Indictment otherwise alleged the
criminal responsibility of the Accused for their
alleged control over the political, administrative
or military entities listed in current paragraph
16 of the Indictment. Such a direct or indirect control
over Herceg -Bosna/HVO or HDZ ad HDZ-BiH is alleged
in particular in paragraph 17 of the Indictment.
- The Chamber is satisfied that the proposed
amendments to paragraph 16 and the proposed addition
of a paragraph 16.1 to the Indictment clarify the
factual allegations found in the Indictment and
do not cause prejudice to the Accused.
- The Chamber grants leave to the Prosecution
to amend the indictment to include the aforementioned
proposed amendments.
Proposed amendments in paragraphs 18-217 of the
Indictment
- The Prosecution proposes to amend paragraphs
18-217 of the Indictment to mostly correct small
errors or clarify the Indictment or, if more than
a few words have been added such as in paragraphs
27 and 37 of the Indictment, to make a fuller statement
of the facts and circumstances related to this case.43
The Prosecution emphasizes that these amendments do
not change the charges or crime base in the case44 and do not cause
prejudice to the Accused.45
- The Defence opposes the proposed amendments
to paragraphs 27 and 37 of the Indictment on the
grounds that these amendments expand the allegations
against the Accused.46 The Defence explains that
paragraph 27 is amended to now claim that there was
ongoing cooperation between the Bosnian Croats and
Bosnian Serbs during 1992 and 1993 and that paragraph
37 was amended to claim that H-B/HVO authorities
engaged in efforts throughout 1993 to transfer thousands
of Bosnian Croats from other parts of BiH to western
Herzegovina.47 The Stojic Defence summarizes
the conclusion reached by the Defence as follows: “since
these new allegations are found in the Chapter of
the Indictment titled “Statement of facts” in which
the Prosecutor described criminal acts of the accused,
the Defence arrived at the conclusion that cited allegations
are in fact new charges and that in that manner the
Prosecution enlarges the crime-base of the ongoing
case.”48
- Paragraph 27 of the Proposed Amended Indictment,
with the part in bold showing the amendment proposed
by the Prosecution, reads as follows:
27. In the spring and early summer of 1992, the Herceg-Bosna/HVO
authorities and forces, while asserting their control
and engaging in the actions described above, carried
out military operations with armed forces of the
Government of Bosnia and Herzegovina in Response
to JNA and Bosnian Serb military actions in Herzegovina
and elsewhere. In connection with or following the
Serb forces leaving Mostar, the Herceg-Bosna/HVO-led
forces destroyed the city's Serbian Orthodox Church
and nearby Serb houses. Many Serbs left Mostar during
this time, while others were held in poor conditions
in HVO-run detention camps. Notwithstanding the
hostilities between the Herceg-Bosna/HVO forces
and Bosnian Serb forces in the spring and summer
of 1992, there was substantial ongoing co-operation
between the Bosnian Croats and Bosnian Serbs following
a meeting between Radovan Karadzic and Mate Boban
in Graz, Austria, on 6 May 1992, which co-operation
continued in the parts of Bosnia and Herzegovina
most relevant to this indictment, with minor exceptions
through the end of 1993.
- The proposed amendment in paragraph 27 qualifies
the allegation made in the previous sentence in
that it explains that although Herceg-Bosna/HVO authorities
and forces carried out military operations with
armed forces of the Government of Bosnia and Herzegovina
in Response to JNA and Bosnian Serb military actions
in Herzegovina and elsewhere, the Bosnian Croats
and Bosnian Serbs cooperated until the end of 1993.
The Response to the first question the Chamber must
respond here, namely whether the allegation that
Bosnian Croats and Bosnian Serbs cooperated from
spring 1992 to end of 1993 is a new charge in that
it may constitute in itself a factual basis for
a conviction, is obvious. Such a factual allegation
cannot in itself be the sole basis for a conviction.
It is not reasonable to assume that because it is
alleged that Bosnian Croats and Bosnian Serbs cooperated
until the end of 1993, the alleged criminal responsibility
of the Accused is expanded. The Chamber acknowledges
however that the amendment is a substantial clarification
to paragraph 27 of the Indictment.
- The proposed amendment to paragraph 27 of the
Indictment does not constitute a new charge as claimed
by the Defence but is a substantial clarification
of the factual allegations found in the Indictment
to be read – the Chamber must recall
– as a whole.
- Paragraph 37 of the Proposed Amended Indictment,
with the part in bold showing the amendment proposed
by the Prosecution, reads as follows:
37. In early July, Herceg-Bosna/HVO forces, supported
by (and involving) the government and armed forces
of the Republic of Croatia, launched a massive campaign
to attack, arrest and cleanse Bosnian Muslims from
areas claimed to be part of Herceg-Bosna (including
the municipalities of Mostar, Prozor, Stolac, Capljina
and Ljubuski). From June through September 1993,
Herceg-Bosna/HVO forces systematically arrested,
mistreated and evicted tens of thousands of Bosnian
Muslim men, women, children and elderly from their
homes, detained them and/or transferred them to other
areas or deported them to other countries. At
the same time, the Herceg-Bosna/HVO authorities
engaged in efforts throughout 1993 to transfer (or
cause the transfer of) thousands of Bosnian Croats
from other parts of Bosnia and Herzegovina, and in
particular, Central Bosnia, to western Herzegovina.
- The amendment proposed to be made in paragraph
37 of the Indictment is a clarification of the factual
allegations contained in the sentence preceding the
amendment. Such a factual allegation cannot in itself
be the sole basis for a conviction of the Accused.
The allegation that the Herceg-Bosna/HVO authorities
detained or transferred tens of thousands of Bosnian
Muslim men, women, children and elderly from their
homes is substantiated by the proposed amendment
which alleges that in parallel to the transfer, inter
alia, of tens of thousands of Bosnian Muslims,
tens of thousands of Bosnian Croats were transferred
from other parts of Bosnia and Herzegovina, in particular
Western Herzegovina.
- The proposed amendment to paragraph 37 of the
Indictment does not constitute a new charge as claimed
by the Defence and is a clarification of the factual
allegations found in the Indictment.
- The Defence further claims that “If the Chamber
finds that the assertions in paragraphs 27 and 37
of the proposed amended indictment are not new charges,
then the Defence requests the Prosecution to eradicate
these assertions which are unfounded and unsupported
speculations prejudicial to the Accused”.49
- In relation to the amendments proposed to be
made in paragraphs 27 and 37 of the Indictment,
the Chamber is satisfied that the allegations made
in those paragraphs, for instance the reference
to a meeting between Mate Boban and Radovan Karadzic
on 6 May 1992 in Graz and the transfer (or cause
the transfer of) thousands of Bosnian Croats from
other parts of Bosnia and Herzegovina are supported
by material disclosed only to the Chamber (ex-parte confidential
supporting material attached to the Application).
The Chamber is satisfied that the Prosecution does
not make “assertions
which are unfounded and unsupported speculations” as
claimed by the Defence.
- The Chamber rejects the Defence’s objections and
is satisfied that the proposed amendments in paragraphs
27 and 37 of the Indictment clarify the factual allegations
found in the Indictment and do not cause prejudice
to the Accused.
- The Trial Chamber grants leave to the Prosecution
to amend paragraphs 18-217 of the Indictment as
proposed by the Prosecution.
Amendment to paragraphs 218 to 226 of the Indictment
(Criminal Responsibility Section)
16. The Prosecution asserts that “in light of continuing
developments and assessments of Tribunal jurisprudence
it has revised paragraphs 218 to 226 of the Indictment
and proposes amendments to make clearer the various
forms and aspects of joint criminal enterprise, co-perpetration
and indirect perpetration”.50
19. To the Prosecution, the substantial majority of
the text in the proposed paragraphs 218 to 226 was
already contained in the original paragraphs and
the proposed amendments are in the interests of
justice and do not prejudice the Defence.51
- The Petkovic Defence opposes the amendments
to paragraphs 218-220 in the Proposed Amended Indictment
on the grounds that they “affect radically the core
of the Indictment as far as the criminal responsibility
of the accused under 7(1) is concerned”. The
Petkovic Defence also opposes the amendments to paragraph
221 which broaden “the
scope of criminal responsibility attached to each accused” and
to paragraphs 218 -225 because they introduce indirect
perpetration as a new mode of liability.52
- At the outset, the amendments in paragraph
218 of the Proposed Amended Indictment appear substantial.
Current paragraph 218 of the Indictment alleges that:
218. The crimes charged in this indictment were part
of the joint criminal enterprise described in Paragraphs
15, 16 and 17 and were committed in the course of
the enterprise, or were the reasonable and foreseeable
consequences of implementing or attempting to implement
the criminal enterprise. The joint criminal enterprise
was in existence at the time of the commission of
the crimes charged in this indictment, and at the
time of the participatory conduct of each of the
accused in furtherance thereof.
Paragraph 218 of the Proposed Amended Indictment is
twice longer and alleges that the Accused planned,
instigated, ordered or committed the crimes charged
in this Indictment, pursuant to Article 7(1) of
the Statute. The paragraph then continues detailing
all possible legal or factual requisites for criminal
liability under Article 7(1) to arise. The last
sentence of this new paragraph alleges that the
Accused acted with the requisite state of mind and
finally alleges that the Accused
“acted with the mutual awareness of the substantial
likelihood that crimes would occur as a direct consequence
of the pursuit of the common goal.”
- Paragraph 218 of the Proposed Amended Indictment
only now alleges criminal responsibility under Article
7(1) and exclude – at this stage – criminal responsibility
under the joint criminal responsibility theory.
A review of the following paragraphs shows that
the Prosecution has rearranged the order of the allegations
concerning the Accused’s criminal responsibility
under article 7(1) of the Statute. Paragraphs 218-220
of the Proposed Amended Indictment allege the criminal
responsibility of the Accused under Article 7(1)
and paragraphs 221-227 of the Proposed Amended Indictment
allege the criminal responsibility of the Accused
under Article 7(1) but more specifically under the
joint criminal enterprise theory.
- Paragraph 219 alleges that the Accused and
other perpetrators or actors involved in the crimes
charged acted with the knowledge and state of mind
required for the commission of each crime charged
in this indictment. Paragraph 219 of the Proposed
Amended Indictment reformulates this allegation
with different wordings.
- Current paragraph 220 of the Indictment alleges
that “Pursuant to Article 7
(1) of the Statute, each of the accused is criminally
responsible for the crimes charged in this indictment
which he planned, instigated, ordered or committed,
or in the planning, preparation or execution of
which he aided and abetted. As part of his responsibility,
each accused is also charged as a co-perpetrator
and/or indirect perpetrator”. This paragraph is
substantially amended to now allege that, in addition
or the alternative, the Accused are charged with
and criminally responsible for each crime he substantially
aided and abetted and that they had the requisite
mens rea.53 This amendment is
in line with the rearrangement of the order of paragraphs
mentioned in paragraph 51 of this present decision.
- Paragraphs 221-223 of the Indictment are amended
to reflect the current state of the case-law of
the Tribunal on the theory of joint criminal enterprise – form
1. Similarly, paragraphs 224-225 of the Indictment
which continue to allege that the Accused are liable
for having participated in systems of ill-treatment
and paragraph 226 of the Indictment which continue
to allege that, in addition or in the alternative, the Accused are liable for having aided and abetted
the ill-treatments systems, are also amended to
reflect the current state of the case-law concerning
the theory of joint criminal enterprise – form 2.
The amendments do not introduce a new form of liability,
namely indirect perpetration, as claimed by the Petkovic
Defence nor are the charges in those paragraphs
expanded. Current paragraph 220 of the Indictment
already alleges that “As part of his responsibility,
each accused is also charged as a co-perpetrator
and/or indirect perpetrator”. Secondly, the Chamber
notes that the Prosecution seeks to clarify the
legal and factual prerequisites for criminal liability
under the theory of joint criminal enterprise – form
2.
- Paragraph 227 of the Indictment alleges that
the Accused are liable for all natural and foreseeable
consequences of the joint criminal enterprise (joint
criminal enterprise – form 3).54 The amendments
sought are in conformity with the case-law of the Tribunal
on this issue.
- The Chamber finds that the amendments sought
by the Prosecution in the above -mentioned paragraphs
are not new charges but are merely clarifications
concerning legal and factual elements required to
be proved for criminal liability under Article 7(1)
to arise. Furthermore, the Chamber notes that the
added details in paragraphs 118-227 of the Proposed
Amended Indictment are in favour of the Accused who
are better informed of the Prosecution’s case.
- The Chamber is satisfied that the proposed
amendments clarify the legal and factual allegations
found in the Indictment and do not cause prejudice
to the Accused.
- The Chamber grants leave to the Prosecution
to amend the indictment to include the aforementioned
proposed amendments.
- In sum, the Chamber finds that the all the
amendments sought by the Prosecution are acceptable
and do not cause unfair prejudice to the Accused’s
right to a fair trial. Accordingly, the Petkovic
Defence’s request to have additional time (18 months
) to prepare the Defence if the Prosecution is granted
leave to amend the Indictment is rejected.
- The Chamber turns now to the Defence’s complaints
concerning the form of the Proposed Amended Indictment.
The form of the Proposed Amended Indictment
- The Defence submits that the Prosecution failed
to submit an amended indictment in full compliance
with the 22 July 2005 Decision because:
(a) paragraph 17 of the Indictment has been superficially
amended and paragraph 39 of the indictment was not
amended as ordered by the Chamber to further specify
the exact alleged role of each Accused as ordered;55
(b) the Prosecution has not submitted a chart recalling
the military or governmental structure involved
in the commission of the underlying crimes by municipality
or detention centre.56
(c) the correct personal data of the Accused were not
provided as ordered by the Chamber;57
(d) the proposed amended indictment “fails to adequately
inform the Accused or specify the exact nature and
conduct which is being charged and which the Accused
will need to defend”,58
(e) the amendments “additionally contribute to the
vagueness of the Indictment.”59
- In relation to the Defence’s complaints that paragraph
17 of the Indictment has only been superficially
amended and that paragraph 39 of the indictment was
not amended as ordered by the Chamber in its 22
July 2005 Decision, the Chamber recalls that this
Decision states the following:
27. The Chamber is not fully satisfied that the paragraphs
mentioned by the Prosecution as describing the role
of the Accused sufficiently describe their alleged
role in the alleged events. Paragraphs 17 and 39
are the most relevant ones and they do not permit,
in the Chamber’s view, the Defence to adequately
prepare. As stated above, paragraph 17 of the Indictment
is impermissibly vague in that it states that the
accused participated in the JCE “in one or more of
the following ways” without
attaching one or more ways to a specific accused. Each
Accused should be in a position to determine from
the Indictment what exact conduct or participatory
act he allegedly had. Paragraph 39 alleges that
the acts listed were committed by all Accused and
to that extent is clear. However, it is unclear
what role or conduct each
Accused had in respect of the offences charged.
- The Chamber carefully reviewed the amendments
made by the Prosecution to paragraph 17 of the Indictment
and considers that it cannot be said that the Indictment
was only superficially amended. The Chamber is satisfied
that the added sub-paragraphs 17.1 through 17.6
allow each Accused to be sufficiently informed of
his alleged role or conduct in the alleged joint
criminal enterprise. Accordingly, the Prosecution
has complied with the terms of the 22 July 2005
Decision concerning paragraph 17 of the Indictment.
- In relation to paragraph 39 of the Indictment,
the 22 July 2005 Decision considered that “Paragraph
39 alleges that the acts listed were committed by
all Accused and to that extent is clear”; hence
the Prosecution was not required to amend paragraph
39 of the Indictment. The Defence’s assumption that
the Prosecution should have amended paragraph 39
may originate from a misreading of paragraph 27
of the 22 July 2005 Decision.
- The objections of the Defence concerning paragraphs
17 and 39 the Proposed Amended Indictment are dismissed.
- In relation to the Defence’s complaints that the
Prosecution has not submitted a chart recalling
the military or governmental structure involved in
the commission of the underlying crimes by municipality
or detention centre, the 22 July 2005 Decision instructed
the Prosecution as follows:
47. […] the Chamber is of the view that a chart recalling
the military or governmental structure involved in
the commission of the underlying crimes by municipality
or detention centres may assist the Defence to prepare
more effectively. Such chart needs not to be attached
to the Indictment however but be submitted to the Defence
in a separate filing.
- The Defence appears to have misunderstood the
Decision which instructs the Prosecution to file
the chart in a separate filing. The Decision does
not indicate that such a separate filing needs to
be done at the time of the submission of the Proposed
Amended Indictment. The assumption made by the Defence
is not correct. However the Chamber reminds the
Prosecution that such a filing must be done before
the filing of the pre-trial brief to allow an effective
preparation of the defence of the Accused.
- The objections of the Defence concerning the
filing of a chart with the Proposed Amended Indictment
are dismissed.
- Upon the Defence’s previous complaints that the
Accused’s personal data and
positions, including the exact time-frame, should be
specified or corrected in the Indictment, the 22
July 2005 Decision stated that:
15. The Chamber accepts that the Accused’s personal
data and positions must be stated as accurately as
possible in the Indictment. The Prosecution is directed
to make appropriate amendments to the Indictment,
with the assistance of the Defence, to correct details
concerning the Accused’s personal data. In relation
to the Accused official positions, including the relevant
time-frame, those matters will have to be resolved
at trial as they concern alleged control or powers
exercised by the accused which will need to be proved
at trial.
- The Stojic Defence complains that although
the Prosecution added the fact that
“General Bobetko assigned him as Acting Officer in
charge of logistical support at Forward Command Post
in Grude”, the fact that the accused Stojic “was assigned
as a civilian and was not a military person during
the relevant period” was omitted.60 The
Praljak Defence submits that some personal data of
the accused Praljak remain erroneous such as his date
of birth, his nickname and several elements of his curriculum
vitae and functions
held tempore crimines (sic).61 The
Prlic Defence submits that some personal data of the
accused Prlic remain erroneous but does not provide
any examples.62
- The Chamber recalls that the official positions
of the Accused, including the relevant time-frame,
are matters to be resolved at trial. The civilian
status of Stojic or Praljak’s functions held tempore
crimini are therefore matters
for trial resolution. In relation to erroneous personal
data in the Indictment, such as Praljak’s date of
birth or nickname, the Chamber instructed the Prosecution
to correct those data with the assistance of the
Defence. Although it is to be noted that the Prosecution
could have approached the Defence in relation to
those issues, the Defence seems to have assumed
that such assistance could not have been offered
spontaneously.
- The Chamber instructs the Defence to provide
the Prosecution with the personal data of the accused
Praljak and Prlic, and of any other accused whose
personal data is not correct, in order to have those
data included in the Proposed Amended Indictment.
- The Defence complains that the Proposed Amended
Indictment “fails to adequately
inform the Accused or specify the exact nature and
conduct which is being charged and which the Accused
will need to defend” since the “Accused is left to
decipher whether acts or conduct that are contained
or asserted in the “Statement of the
Case” are part and parcel of or distinct from the actual
crimes charged in the Chapter
“Counts 1 to 26”.63
- The 22 July 2005 Decision has already addressed
this complaint – albeit formulated
in a different manner - in its paragraphs 62-64 and
has recalled that the Indictment must be read as
a whole.
- The Defence finally complains that the amendment
in the Proposed Amended Indictment
“additionally contribute to the vagueness of the Indictment.”64
- The Chamber disagrees with this statement and
finds that on the contrary the amendments sought
by the Prosecution, by clarifying the legal and factual
basis of the Indictment which is already very detailed,
better inform the Accused of the Prosecution’s case.
In particular, paragraphs 218-227 of the Proposed
Amended Indictment better inform the Accused of
the legal elements required to be proved by the Prosecution
for criminal responsibility under Article 7(1) of
the Statute to arise.
FOR THE FOREGOING REASONS, pursuant to Rules
50 and 72 of the Rules of Procedure and Evidence,
GRANTS the Application,
INSTRUCTS the Defence to assist the Prosecution
in providing relevant personal data of the Accused.
DISMISSES all other objections of the Defence
for the Accused on the form of the Proposed Amended
Indictment.
Done in both English and French, the English text being
authoritative.