Case No. IT-02-60-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision of:
17 June 2002

PROSECUTOR
v.
VIDOJE BLAGOJEVIC
DRAGAN JOKIC

____________________________________

DECISION ON PROSECUTION’S MOTION FOR LEAVE TO FILE THIRD AMENDED INDICTMENT ____________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic

 

TRIAL CHAMBER I, SECTION A, (“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”),

BEING SEISED of the “Prosecution’s Motion for Leave to File Third Amended Joinder Indictment,” filed by the Office of the Prosecutor (“Prosecution”) on 26 May 2003 (“Motion”), which followed the separation of the proceedings against Dragan Obrenovic from the proceedings in this case following the acceptance by the Trial Chamber of his plea of guilty to one count of the Amended Joinder Indictment of 27 May 2002 (“Amended Joinder Indictment”) and the dismissal of the remaining counts against him,1

NOTING the “Prosecution’s Motion for Leave to File Second Amended Joinder Indictment” on 13 May 2003 (“First Motion”), which followed the separation of the proceedings against Momir Nikolic from the proceedings in this case following the acceptance by the Trial Chamber of his plea of guilty to one count of the Amended Joinder Indictment and the dismissal of the remaining counts against him,2

NOTING that the amendments proposed in the First Motion have been included in the Motion, and that the First Motion is therefore rendered moot,

NOTING the response filed on behalf of one accused within the time-period specified by the Trial Chamber,3 namely “Dragan Jokic’s Objections to Prosecution’s Motion for Leave to File Third Amended Joinder Indictment” filed on 4 June 2003 (“Jokic Response”),

NOTING the conference held in accordance with Rule 65ter of the Rules of Procedure and Evidence of the Tribunal (“Rules”), on 23 May 2003, with representatives of the Trial Chamber, the Prosecution and the Defence Counsel for the accused Dragan Jokic and Vidoje Blagojevic, at which issues pertaining to the amendment of the Amended Joinder Indictment were discussed,

NOTING the amendments suggested by the Prosecution in the Motion, mainly in relation to deletion of charges and references to Dragan Obrenovic and Momir Nikolic, in light of the pleas of guilt entered by them, as well as modifications in Paragraphs 45, 46.4, 46.9, 46.10, 46.11, 46.12, 47.7, 47.8 and 49,

NOTING that the Prosecution avers that as there are no new charges or counts against the remaining two accused, and no substantial changes to the facts underlying the existing counts, Rules 50(b) and (c) do not apply,4

NOTING the objections in the Jokic Response in relation to amendment of the Amended Joinder Indictment, particularly (i) that the guarantees granted to an accused by the Statute and Rules of the Tribunal are violated by the amendments;5 (ii) the rewording of phrases in Paragraphs 46.9, 46.10, 46.11 and 46.126 changes the level of responsibility of Dragan Jokic and is akin to a new charge against him;7 (iii) there is a lack of specificity in pleading material facts and that the amendments are void for vagueness ;8 and (iv) the substance of the charges against Dragan Jokic have been changed,9

CONSIDERING the principles embodied in the Statute and the Rules, in particular Article 18(4) of the Statute and Rule 47(C) of the Rules, read with Articles 20, 21(4)(a), 21(4)(b), 21(4)(c) of the Statute,10

CONSIDERING that there is an obligation on the part of the Prosecution to state material facts underpinning the charges in the indictment, such that the accused is provided with sufficient detail to prepare his defence,11

CONSIDERING that it is to be determined whether amendments to an indictment result in any prejudice to the accused, having regard to the circumstances of the case as a whole,12

CONSIDERING that the Trial Chamber believes that the Prosecution has provided the material facts underpinning the charges, and that the modifications suggested by the Prosecution in the Motion neither changes the liability of the accused Dragan Jokic, nor rises to the level of a new charge,

CONSIDERING further, that the position of the accused Dragan Jokic and Vidoje Blagojevic remains the same as in the Amended Joinder Indictment, and the Trial Chamber is of the view that both the accused have been on notice in relation to the charges against them and the amendments do not prejudice either of the accused in the preparation and conduct of their defence,

PURSUANT TO Rules 50 and 54 of the Rules,

HEREBY GRANTS the Motion.

 

Done in French and English, the English version being authoritative.

__________________
Judge Liu Daqun
Presiding

Dated this seventeenth day of June 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Separation of Proceedings and Scheduling Order, 23 May 2003.
2 - Separation of Proceedings and Scheduling Order, 9 May 2003; Decision on Motion to Dismiss Charges Against Accused Momir Nikolic, 12 May 2003.
3 - Scheduling Order, 26 May 2003.
4 - Motion, pages 1-2.
5 - It is argued that Article 18 of the Statute of the Tribunal and Rule 47 of the Rules, interpreted along with Articles 21(2), 21(4)(a) and (b) of the Statute, are violated by the amendments. Further, the provisions of Rule 50 are quoted, and it is argued that the 10 days provided by the Trial Chamber to challenge the indictment is insufficient. The right to be informed of charges promptly, the right to an effective defence and the right to be tried without undue delay are all aspects of the right to a fair trial which is guaranteed to an accused, Jokic Response, pages 5-7.
6 - In Paragraphs 46.9, 46.10, 46.11 and 46.12, the previous formulation of the factual allegations was “...under the direction of Dragan Obrenovic in his capacity as Chief of Staff of the Zvornik Brigade and Dragan Jokic,…”. This has been modified to “...under the authority of Dragan Obrenovic in his capacity as Chief of Staff of the Zvornik Brigade and the direction of Dragan Jokic,…”.
7 - It is argued that the superior authority of Dragan Obrenovic is subverted and redirected to Dragan Jokic; further, there is no precedent which enables a chief of engineering to direct operations, Jokic Response, pages 7-10.
8 - Jokic Response, pages 10-11.
9 - It is argued that there is the addition of the common law equivalent of conspiracy in the form of joint criminal enterprise which replaces aiding and abetting, Jokic Response, page 11.
10 - Article 18 of the Statute and Rule 47(C) of the Rules require that an indictment contain a concise statement of facts and crimes with which an accused is charged. Article 20 of the Statute provides the accused the right to a fair and expeditious trial; Article 21(4)(a) of the Statute provides that an accused if to be informed promptly in a language he understands, the nature and cause of the charge against him; Article 21(4)(b) of the Statute provides that the accused is to have adequate time to prepare his defence; Article 21(4)(c) of the Statute provides that an accused is to be tried without undue delay.
11 - Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16-A, Appeals Chamber Judgment, 23 October 2001, paras 88-89. See also, Prosecutor v.Hadzihasanovic, Alagic and Kubura, Case No. IT-01-47-PT, Decision on Form of the Indictment, 7 December 2002, para. 8.
12 - Prosecutor v. Mladen Naletilic & Vinko Martinovic, Case IT-98-34, Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary Motion to the Amended Indictment, 14 February 2001, page 5; See also, Prosecutor v.Milan Kovacevic, Case IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998; Prosecutor v. Simic et al., Case No. IT-95-9-T, Decision on the Prosecution’s Motion for Leave to Amend the Indictment, 20 December 2001.