IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mr Hans Holthuis
7 June 2001
RADOSLAV BRDANIN & MOMIR TALIC
DECISION ON FILING OF REPLIES
The Office of the Prosecutor:
Ms Joanna Korner
Mr Andrew Cayley
Mr Nicolas Koumjian
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brđanin
MaÓtre Xavier de Roux and MaÓtre Michel Pitron for Momir Talic
1. The accused Momir Talic ("Talic") filed a Preliminary Motion challenging the form of the further amended indictment filed by the prosecution.1 In the course of the Talic Motion, a request was made to fix "a deadline" for filing a reply to the prosecutionís Response "should [Talic] elect to do so".2 The moving party does not, however, have an absolute right to file a reply. Leave to do so is required, and leave will only be granted where the response raises an issue which goes beyond the issues raised by the motion itself.3 The response filed by the prosecution in the present case raises no such new issue.4 Accordingly, leave will not be granted to Talic to file a reply to the Prosecution Response.
2. Following a discussion at a recent Status Conference concerning the validity of the way common purpose had been pleaded in the indictment,5 the prosecution filed an application to amend the indictment further in relation to the allegation of common purpose.6 Talic has now filed a response to the Prosecution Motion.7 He objects to leave being granted to the prosecution to amend, upon two bases: (1) that the proposed amendment does not correct the deficiencies in the common purpose pleaded in the current indictment,8 and (2) that the proposed amendment is itself defective in form.9
3. The fundamental issue in relation to granting leave to amend an indictment is whether the amendment will prejudice the accused unfairly.10 The word "unfairly" is used in order to emphasise that an amendment will not be refused merely because it assists the prosecution quite fairly to obtain a conviction. To be relevant, the prejudice caused to an accused would ordinarily need to relate to the fairness of the trial. Where an amendment is sought in order to ensure that the real issues in the case will be determined, the Trial Chamber will normally exercise its discretion to permit the amendment, provided that the amendment does not cause any injustice to the accused, or does not otherwise prejudice the accused unfairly in the conduct of his defence.11 There should be no injustice caused to the accused if he is given an adequate opportunity to prepare an effective defence to the amended case. Whether any delay resulting from the amendment denies the accused his right to be tried without undue delay will depend upon (i) the circumstances of the particular case,12 including any improper tactical advantage sought by the prosecution,13 and (ii) the exceptional character of criminal proceedings involving war crimes, including the general complexity and difficulties necessarily inherent in the investigation of such crimes.14 There is a need for reasonable judicial flexibility in relation to such amendments.15 Where, however, the proposed amended case is so futile that it would be struck out if it had appeared in the original indictment, the Trial Chamber will not normally exercise its discretion to permit the amendment.
4. One intermediate situation between these two situations occurs where the amendment may clearly have been intended to ensure that the real issues in the case will be determined, but the form in which the amendment is drafted is defective. If the defects in the amendment now alleged by Talic are accepted, that is the present case. There is no utility in refusing an application for leave to amend in such a situation merely because of the form in which the amendment is drafted, provided that the complaint as to form can be determined in the course of the application to amend. Leave to amend can be made subject to compliance with any order concerning the form of the amendment which accompanies the grant of leave.
5. The increasing propinquity of the trial demands that such a course be followed in the present case, and the Trial Chamber proposes to determine the alleged defects of the proposed amendment at the same time as the application to amend. To do so fairly to both parties, the Trial Chamber grants leave to the prosecution to reply to the allegations in the Talic Response that its proposed amendment is defective in form, as if it had been a fresh preliminary motion. Any such reply must be filed within seven days of this decision.
6. It is nevertheless necessary to point out that the Talic Response has not restricted its allegations of pleading defects to the proposed amendment. The only alleged defects which do apply to the proposed amendment are that:
(1) there is no definition of the "unlawful means" through which the criminal enterprise (in which the accused are alleged to have participated) effected the permanent removal of the majority of Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian State;16 and
(2) the state of mind of the accused now pleaded by the prosecution in its proposed amendment is insufficient.17
The remaining defects alleged in the Talic Response relate to the indictment as it is currently pleaded. Two of these alleged defects are merely repetitions of defects already alleged in the original Talic Motion: the indictment fails to define the alleged participation by Talic in the criminal enterprise, and criminal responsibility cannot be deduced solely from his position.18 Whether such defects exist has yet to be determined in the disposition of the Talic Motion. Three allege for the first time a further defect in the indictment as it is currently pleaded:
(i) no link is shown between the establishment of the Assembly of Bosnian Serbs and the criminal enterprise;19
(ii) the alleged participants in the criminal enterprise are so broadly formulated as to include the entire Bosnian Serb people, so that the participants are not identified;20 and
(iii) the indictment provides no details of Talicís intention to participate voluntarily in the criminal enterprise or of his knowledge of its existence.21
7. These alleged defects which are raised for the first time would not be permitted in a fresh preliminary motion, unless an extension of time to object to the form of the original indictment were granted.22 The first and second of the alleged defects raised for the first time are not of such a nature as to warrant an extension of time, and they will not be considered by the Trial Chamber in its determination of the Talic Motion. The third does raise an issue of some possible significance, and an extension of time is granted to Talic to raise it out of time. The reply by the prosecution, if advantage is taken of the leave granted, need deal only with the two alleged defects in the proposed amendment and the third of the new alleged defects of the current indictment.
8. Accordingly, the Trial Chamber:
(a) refuses leave to Talic to file a reply to the Prosecution Response,
(b) extends the time for the complaint specified in par 2.2 of the Talic Response to be made, and
(c) grants leave to the prosecution to file a reply to the Talic Response within seven days.
Done in English and French, the English text being authoritative.
Dated this 7th day of June 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1 - Preliminary Motion Based
on the Defects in the Form of the Indictment Dated 12 March 2001, 5 Apr
2001 ("Talic Motion").
2 - Talic Motion, Section V: Conclusion, last paragraph.
3 - Prosecutor v Brdanin, Further Decision on Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brđanin, 9 Dec 1999, pars 2-4; Prosecutor v Brdanin and Talic, Decision on Motions by Momir Talic (1) to Dismiss the Indictment, (2) for Release, and (3) for Leave to Reply to Response of Prosecution to Motion for Release, 1 Feb 2000, par 17.
4 - Prosecutionís Response to "Preliminary Motion Based on the Defects in the Form of the Indictment Dated 12 March 2001" Filed by the Accused Momir Talic, 3 May 2001 ("Prosecution Response").
5 - Status Conference, 18 May 2001, Transcript pp 313-316.
6 - Prosecutionís Supplementary Response to "Preliminary Motion Based on the Defects in the Form of the Indictment Dated 12 March 2001" Filed by the Accused Momir Talic and Request for Leave to Amend the Further Amended Indictment, 22 May 2001 ("Prosecution Motion"), par 5.
7 - Response to the Prosecutorís Request for Leave to Amend the Further Amended Indictment, 1 June 2001 ("Talic Response").
8 - Ibid, Section III: Discussion, third paragraph.
9 - Ibid, pars 1-2.
10 - cf Prosecutor v Naletilic and Martinovic, Case IT-98-34-PT, Decision on Vinko Martinovicís Objection to the Amended Indictment and Mladen Naletilicís Preliminary Motion to the Amended Indictment, 14 Feb 2001, pp 4-7.
11 - Ibid, pp 4, 7.
12 - Prosecutor v Kovacevic, Case IT-97-24-AR73, Decision Stating Reasons for Appeals Chamberís Order of 29 May 1998, 2 July 1998, par 30.
13 - Ibid, par 32.
14 - Ibid, Separate Opinion of Judge Mohamed Shahabuddeen, p 4.
15 - Ibid, Separate Opinion of Judge Mohamed Shahabuddeen, p 4.
16 - Talic Response, Section III, par 1.1.
17 - Ibid, par 2.3.
18 - Ibid, par 2.1; cf Talic Motion, Section III: The Deficiencies in the Facts Ascribed to General Talic, par 1.b.
19 - Talic Response, Section III, par 1.2.
20 - Ibid, par 1.3.
21 - Ibid, par 2.2.
22 - Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb 2000, par 15.