Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Registrar: Mr. Hans Holthuis
19 October 2001
DECISION ON THE DEFENCE MOTION FOR INDICATING THAT THE FIRST AND SECOND SCHEDULE TO THE INDICTMENT DATED 10TH OCTOBER 2001 SHOULD BE CONSIDERED AS THE AMENDED INDICTMENT
Office of the Prosecutor:
Mr Mark Ierace
Counsel for the Defence:
Ms. Mara Pilipovic
Pending before 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 (“International Tribunal ”) is the “Defence’s Request for Indicating that First and Second Schedule to the Indictment Dated 10th October 2001 Should be considered as the Amended Indictment ” (the “Request”), dated 12 October 2001. This Request objects to the “Prosecutor’s Filing of Revised Schedules to the Indictment” in which the Prosecution presents a revised list of specific shelling and sniping incidents contained in the First and Second Schedules to the indictment.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the parties ,
HEREBY ISSUES ITS WRITTEN DECISION.
1. On 26 March 1999, an indictment was filed against Stanislav Galic for his alleged responsibility as a commander in the shelling and sniping against Sarajevo, from 10 September 1992 to 10 August 1994 (“the Indictment”). He is charged with violations of the laws or customs of war for unlawfully inflicting terror upon civilians (Count 1), crimes against humanity and violations of the laws or customs of war for a campaign of sniper attacks upon the civilian population of Sarajevo (Count 2, murders as crimes against humanity; Count 3, inhumane acts as crimes against humanity, Count 4, attacks on civilians as a violation of the laws or customs of war), and a campaign of artillery and mortar shelling onto civilian areas of Sarajevo (Count 5, murders as crimes against humanity, Count 6, inhumane acts as crimes against humanity; Count 7, attacks on civilians as violations of the laws or customs of war).
2. Two Schedules are annexed to the Indictment (“the Schedules”). The First Schedule lists specific sniping incidents, while the Second Schedule lists specific shelling incidents. Each incident mentioned in the Schedules provides the date and area where the incident took place, as well as the number and the name, if known, of the victims .
3. The Indictment specifies in its paragraph 15 that “[a]ll Counts [...] allege the totality of the campaigns of sniping and shelling against the civilian population but the scale was so great that the Schedules to the individual groups of counts in this indictment set forth only a small representative number of individual incidents for specificity of pleading”. The indictment further states under each group of counts that “specific instances of these attacks include, by way of representative allegations, those matters set forth in the First/Second Schedule to the indictment ”.
4. In the course of the status conference held on 15 March 2001, the Prosecution informed the Chamber and the Defence of its intention to delete some specific incidents listed in the Schedules. It further indicated that it was still considering whether it would add further incidents and, if it decided to do so, would inform the Chamber and the Defence within a month. The Defence took note of the time limit indicated by the Prosecution.1
5. On 10 October 2001, i.e. five days before the deadline set out by the Chamber for the Prosecution to file its pre-trial brief, the Prosecution filed two revised Schedules to the indictment.
6. With respect to the First revised Schedule, the Prosecution added five new incidents, deleted ten incidents and provided further details in four instances. All incidents fall within the period of time covered by the indictment. The first added incident refers to a sniping incident in an area which was not mentioned in the original First Schedule.2 The second , third, fourth and fifth events refer to sniping incidents which took place in areas mentioned in the previous First Schedule within several months of the time mentioned as to the original incidents in those areas.3
7. In the Second revised Schedule, the Prosecution deleted one incident and provided further details and corrections with regard to the remaining incidents. No new incident is described in the Second revised Schedule.
8. The Defence submits that the Schedules form part of the Indictment and that the revised lists amount to an amendment and supplement of the indictment. It asserts that the Prosecution should be ordered to request leave to amend the Indictment, pursuant to Rule 50(A)(i)(c), and the Defence be granted a further period of 30 days in order to possibly file preliminary motions on the form of the indictment pursuant to Rule 50(C). It further requests that the deadline set out by the Chamber for the parties to file their pre-trial Briefs be postponed accordingly.
9. The Trial Chamber must first determine whether the information entailed in the Schedules form an integral part of the indictment.
10. The Chamber notes that Trial Chamber III found, in The Prosecutor v. Damir Dosen and Dragan Kolundzija, that the attachment annexed to the indictment of this particular case formed part of the indictment.4 However, the question as to whether annexes form part of the indictment cannot be answered before considering the content of those annexes.
11. Article 18 of the Statute provides that “the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crimes with which the accused is charged under the Statute”. Rule 47(C) of the Rules of Procedure and Evidence reasserts this requirement and provides that “the indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts and of the crime with which the suspect is charged”.
12. The Tribunal has interpreted these rules as requiring that the indictment entails a “concise statement of the facts of the case and of the crime with which the suspect is charged”.5
13. The Tribunal has further recognised on several occasions that, although the particular indictment should have provided as much detail as possible, the massive scale of the crimes with which it had to deal made it impracticable to require a high degree of specificity.6
14. The Kupreskic & al. Trial Judgement, referring to the crime of persecution , however emphasised that “the Prosecution cannot merely rely on a general charge of ‘persecution’ in bringing its case. This would be inconsistent with the concept of legality. To observe the principle of legality, the Prosecution must charge particular acts [...]. These acts should be charged in sufficient detail for the accused to be able to fully prepare their defence”.7 This also stems from the right of the Defence, according to Article 21.4(a) of the Statute, “to be informed promptly and in detail [...] of the nature and cause of the charge against him”.
15. In view of these requirements, Trial Chamber II distinguished between material facts, which should all be contained in the indictment, and evidence adduced at trial to prove the material facts, which are not required to appear in the indictment .8 While alteration of any material fact qualifies as an amendment of the indictment, addition or alteration of evidence does not. However, there should be clear limits to the possibility for the Prosecution to add victims and incidents even if considered of mere evidentiary value.
16. Trial Chamber II used two criteria to determine whether a particular incident and the identity of a victim was a material fact or evidence: the degree of proximity of the accused to the crime alleged and the generality of the offence charged.9 An incident not pleaded in the indictment could be admitted as evidence if the crime alleged is general and the accused person is remote in proximity from the crime alleged. Such incident could indeed corroborate the facts included in the indictment and help establish the existence of a consistent pattern of conduct, as envisaged in Rule 93 of the Rules of Procedure and Evidence. Trial Chamber II specified however that admissibility of such evidence was subject to sufficient notice given to the Defence: where “the Prosecution seeks to lead evidence of an incident which supports the general offence charged, but the particular incident has not been pleaded in the indictment in relation to that offence, the admissibility of the evidence depends upon the sufficiency of the notice which the accused has been given that such evidence is to be led in relation to that offence”.10
17. The Chamber thus considers that while the Prosecution was bound to provide details about some of the sniping and shelling incidents in the Indictment, it was under no obligation to list all of the specific incidents.
18. The Chamber however finds that the Prosecution is not at liberty to amend the Schedules and that the Chamber has to verify whether the alterations brought to the Schedules amount to an amendment.
19. The Chamber accepts that the Prosecution has deleted some incidents from the original Schedules. The elements added to the Second Schedule merely add to or correct specific information which was already contained in the original Schedule. For this reason, the Chamber finds that the changes added to the Second Schedule do not constitute a change of the material facts charged against the accused and do not alter the plea entered by the accused at his initial appearance. Further, the changes added do not prejudice the preparation of the Defence who was informed from the outset of the incidents which would be presented at trial.
20. With respect to the incidents added to the First Schedule, the Chamber finds that the added incidents which refer to approximately the same area and time frame as those incidents mentioned in the original First Schedule do not alter the plea entered by the accused. Consequently, the incidents 2, 3, 8 and 16 are admitted.
21. Incident 1 is said to have taken place in an area not mentioned in the original First Schedule. The Chamber considers that the addition of incident 1 in the First Schedule amounts to an amendment to the indictment for which leave to amend should have been requested by the Prosecution, pursuant to Rule 50 of the Rules of Procedure and Evidence.
22. The Chamber emphasises that it goes contrary to a sound administration of justice to indefinitely authorise leave to amend the indictment. In the present case, the Chamber notes that the amendment was submitted several months after the Prosecution announced its intention to do so and only few days before the deadline set forth by the Chamber for the submission by the Prosecution of its pre-trial brief. To admit the amendment would necessarily disrupt the Scheduling Order issued on 5 October 2001 and unduly postpone the start of the trial. A sound administration of justice thus requires that the indictment be stabilised. For those reasons, the Chamber cannot authorise an amendment to the indictment at this stage of the proceedings .
23. The Chamber recognises however that this incident can be used by the Prosecution as corroborating evidence of a consistent pattern of conduct, pursuant to Rule 93, provided that sufficient notice is given to the Defence, a requirement which is met here.
For the foregoing reasons,
PURSUANT TO Article 21 of the Statute and Rule 50 of the Rules of Procedure and Evidence,
THE TRIAL CHAMBER HEREBY
ADMITS the alterations brought to the Schedules and, in particular, the added incidents numbered 2, 3, 8 and 16 in the First revised Schedule;
REJECTS the added incident numbered 1 in the First revised Schedule and
RECOGNISES that the incident numbered 1 can be used as corroborating evidence of a consistent pattern of conduct.
Done in English and French, the English version being authoritative.
Done this 19 October 2001
At The Hague,
(Seal of the Tribunal]