Case No. IT-99-36-R77

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Registrar:
Mr. Hans Holthuis

Decision:
6 February 2004

PROSECUTOR

v.

RADOSLAV BRDJANIN

CONCERNING ALLEGATIONS AGAINST MILKA MAGLOV

____________________________________

DECISION ON MOTION BY AMICUS CURIAE PROSECUTOR TO AMEND ALLEGATIONS OF CONTEMPT OF THE TRIBUNAL

____________________________________

Amicus Curiae Prosecutor:

Ms. Brenda J. Hollis

Respondent:

Ms. Milka Maglov

 

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 ("the Tribunal");

BEING SEISED OF the "Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal" ("Motion"), filed on 12 January 2004, in which the Amicus Curiae Prosecutor seeks leave to amend the allegations of contempt against Milka Maglov ("Respondent");

NOTING the "Order Instigating Proceedings against Milka Maglov" ("Order"), filed on 8 May 2003, in which this Trial Chamber ordered the Amicus Curiae Prosecutor to prosecute the Respondent for:

  1. the alleged intimidation of the Witness, pursuant to Rule 77(A)(iv) of the Tribunalís Rules of Procedure and Evidence ("Rules"), and

  2. the alleged disclosure of the identity of the Witness to a member of the public, in violation of an order of the Chamber, pursuant to Rule 77(A)(ii);

NOTING that, in her Motion, the Amicus Curiae Prosecutor seeks leave to amend the allegations against the Respondent as follows (added language appears in bold font):

  1. Intimidating, or otherwise interfering with, the Witness, pursuant to Rule 77(A)(iv); or, alternatively,
  2. Attempting to intimidate, or otherwise interfere with, the Witness, pursuant to Rule 77(B); and
  3. Disclosing the identity and/or whereabouts of the Witness to a member of the public, in violation of an order of the Chamber, pursuant to Rule 77(A)(ii);

CONSIDERING that in the Motion, the Amicus Curiae Prosecutor argues, that (1) the requested amendments are necessary "to address exigencies of proof relating to definitions of terms contained in Rule 77 and to the forms of liability which may apply in this matter"; (2) no substantial new charges are added, rather, the requested amendments purely consist of alternative forms of liability prescribed by law; (3) the proposed amendment would not unduly delay the proceedings; thereby ensuring that the Respondentís conduct can be characterised appropriately by the Trial Chamber and serving a just outcome of the proceedings;

NOTING the "Response of the Accused to the Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal" ("Response"), filed by the Respondent on 26 January 2004;

CONSIDERING that in her Response, the Respondent objects to the amendment of the allegations on the grounds that (1) the term "otherwise interfering with the Witness", which the Amicus Curiae Prosecutor wishes to insert, is, as it stands, exceedingly vague, and amounts to a violation of the principle nullum crimen sine lege certa; (2) "an attempt to intimidate is impossible in a criminal legal sense because it can only be a finished act"; and (3) adding to the existing allegation of disclosure of "identity" that of the "whereabouts" of the Witness would entail a series of new issues and therefore protract proceedings considerably;

NOTING that in accordance with Rule 77(E) of the Rules, Parts Four to Eight of the Rules shall apply mutatis mutandis to the contempt proceedings;

NOTING Rule 50(A)(i)(c) pursuant to which the Prosecution 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;

CONSIDERING that, in the absence of specific standards set out in the Rules, it is a matter of discretion of the Trial Chamber seised of the case whether or not to allow an amendment to the allegations; this discretion must, however, be exercised taking into account the right of the Respondent to a fair and expeditious trial, to be promptly informed of the charges against her and to have adequate time and facilities to prepare her defence; 1

FINDING, to the extent that the Amicus Curiae Prosecutor seeks leave to amend the allegation of "intimidation" pursuant to Rule 77(A)(iv) to expressly include "or otherwise interfering with" the Witness, that this term was designed as a residual clause referring to acts rising to the same level of gravity;

FINDING FURTHER that it would be undesirable for this category to be exhaustively enumerated and consequently create opportunities for evasion of the letter of the prohibition; and further that there would be no violation of the nullum crimen principle;

FINDING, insofar as the Amicus Curiae Prosecutor requests to, in the alternative, find the Respondent liable for "attempting to intimidate, or otherwise interfere with" the Witness, that the pleading of an attempted crime based on the same facts as the allegedly committed crime will not render the allegations defective since the attempt of a crime is a constituent part of its commission, and it is therefore reasonable for the Respondent to prepare a defence facing the allegations in their concrete, i.e., alternative, form;

FINDING, to the extent that the Amicus Curiae Prosecutor seeks leave to insert the specification of "and/or whereabouts" in the allegation that the Respondent disclosed the identity of the Witness, that it is inconceivable that the disclosure of "whereabouts" by itself could, in the absence of any further information, constitute an act of contempt, and therefore, the word "or" would be redundant, but otherwise, that there would be no harm done to the Respondentís ability to defend herself;

FINDING FURTHERMORE that the aforementioned amendments, if incorporated in the allegations, would not lead to a considerable delay of the proceedings;

FOR THE FOREGOING REASONS

PURSUANT to Rule 72 of the Rules

GRANTS THE MOTION save for the change with respect to par. 3 below;

and ORDERS the amicus curiae to prosecute Milka Maglov for:

1. Intimidating, or otherwise interfering with, the Witness, pursuant to Rule 77(A)(iv); or, alternatively,

2. Attempting to intimidate, or otherwise interfere with, the Witness, pursuant to Rule 77(B); and

3. Disclosing the identity and whereabouts of the Witness to a member of the public, in violation of an order of the Chamber, pursuant to Rule 77(A)(ii).

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

Dated this sixth day of February 2004,
At The Hague
The Netherlands

_____________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. See Prosecutor v. Brdjanin and Talic, Case No. IT-99-36, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, par. 50.