IN THE TRIAL CHAMBER

Before:
Judge Richard George May, Presiding
Judge Lal Chand Vohrah
Judge Florence Ndepele Mwachande Mumba

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
5 March 1998

PROSECUTOR

v.

MILAN KOVACEVIC

___________________________________________________________

DECISION ON PROSECUTORíS REQUEST TO FILE AN AMENDED INDICTMENT

____________________________________________________________

The Office of the Prosecutor:

Mr. Grant Niemann
Mr. Michael Keegan
Ms. Hildegard Uertz-Retzlaff
Mr. Morten Bergsmo

Counsel for the Accused:

Mr. Dusan Vucicevic
Mr. Anthony DíAmato

I. INTRODUCTION

1. Pending before this Trial Chamber of the International Criminal Tribunal for the former Yugoslavia ("the International Tribunal") is a Request for Leave to File an Amended Indictment ("the Request for Leave to Amend"), filed by the Office of the Prosecutor ("the Prosecution") on 28 January 1998, pursuant to Rules 50 and 73 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"). On 5 February 1998 the Defence filed a Motion for extension of time, which request was granted by the Trial Chamber on 9 February 1998. The Defence filed its Reply to Prosecutorís Request to File an Amended Indictment on 20 February 1998, followed by a corrigendum filed on 23 February 1998 (together "the Reply"). On 26 February 1998 the Prosecution sought leave to respond to the Defence Reply, submitting its proposed response with that application ("the Response").

The Trial Chamber heard oral argument on 27 February 1998 at which time the Trial Chamber accepted the submission of the Response and issued its oral decision, refusing the Request for Leave to Amend, and reserving the written decision to a later date.

Following the oral decision of the Trial Chamber, the Defence withdrew its Motion to Strike Portions of the Indictment, filed on 11 September 1997, which had been held over pending the determination of the Request for Leave to Amend.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,

HEREBY ISSUES ITS WRITTEN DECISION.

II. ANALYSIS

A. Background

2. A draft Amended Indictment is attached to the Request for Leave to Amend. The existing Indictment ("Indictment") against the accused Milan Kovacevic was confirmed by Judge Odio Benito on 13 March 1997. The accused was arrested and transferred to the custody of the International Tribunal on 10 July 1997 on the basis of that Indictment. At his Initial Appearance held on 30 July 1997, the accused pleaded "not guilty" to a single charge of complicity in genocide, a breach of Article 4 of the Statute of the International Tribunal.

3. The Prosecution first indicated its intention to amend the Indictment at the confirmation proceedings held on 13 March 1997. The Defence was notified of this intention on 11 July 1997, at the first meeting between the Prosecution and the Defence after the arrest of the accused. This prompted the Defence to file a Motion to Clarify Standards Implicit in Rule 50 on 10 September 1997, to which the Prosecution responded on 24 September 1997. In its Decision on this Motion, the Trial Chamber held that the issues involved were not for the Trial Chamber but for the plenary to consider. Rule 50 was subsequently amended in plenary, effective 12 November 1997.

4. Thus the Prosecution had already notified the Defence and the Trial Chamber of its intention to amend the Indictment. However, the scope of the amendment was only revealed when the Request for Leave to Amend and the draft Amended Indictment were filed on 28 January 1998. The draft Amended Indictment seeks to add 14 counts to the single count of complicity in genocide. These counts cover Articles 2, 3, and 4 of the Statute, and are based on substantially expanded factual allegations. The Indictment contains 8 pages, whereas the draft Amended Indictment contains 18 pages.

B. Submissions

5. The Request for Leave to Amend does not provide any reasons for the proposed amendment. The Prosecutionís reasons are set out in the Response, in which the Prosecution submits:

(a) the proposed amendment is inappropriate in the light of the evidence presented, which clearly establishes a prima facie case for each proposed change;

(b) the Request for Leave to Amend is brought in accordance with Rule 50 and the practice of national jurisdictions;

(c) the standard and manner of review and the obligation of the confirming Judge(s) remain the same under the revised Rule 50 as under Article 19 of the Statute and Rule 47;

(d) the accused has no right to receive the supporting materials, or to challenge the substance of the amendment at this stage of the proceedings;

(e) from the outset of the proceedings, the Prosecution has given ample notice of its intention to amend;

(f) the "new charges" are based on the same basic events and general facts;

(g) Article 9 (2) of the International Covenant on Civil and Political Rights ("the Covenant") of 1966 was complied with at the time of the arrest of the accused, and therefore is no longer applicable;

(h) the Trial Chamber may only refuse leave if the accused would be substantially prejudiced in exercising his right to a fair trial; and this would not occur if the Defence were allowed extra time to prepare.

At the hearing on 27 February 1998, the Prosecution addressed the issue of delay, asserting:

(a) there has been no undue delay;

(b) any delay has been justified in the particular circumstances of the case, e.g., due to the change in the composition of the Trial Chamber, and in order to await the decision on the accusedís application for provisional release.

6. The Defence submits that the Request for Leave to Amend should be denied on the following grounds:

(a) the Prosecution should not be entitled to amend the Indictment in this fashion seven months after the arrest of the accused;

(b) to do so would be contrary to the right of the accused set out in Article 9 (2) of the Covenant to be informed promptly of any charges against him at the time of arrest;

(c) the Trial Chamber should not condone the arbitrary and opportunistic behaviour displayed by the Prosecution in withholding the amendment;

(d) the Trial Chamber should set an example in upholding the principles of international human rights by defending the rights of the accused;

(e) the supporting materials do not give rise to a prima facie case, as certain elements of the Prosecution case, such as intent on the part of the accused to participate in a plan to commit genocide, and the position of the accused as a civilian in the chain of command of the military and police forces, are not adequately demonstrated;

(f) the Trial Chamber lacks jurisdiction under Article 3 of the Statute over certain acts committed in the context of an internal armed conflict.

C. Applicable Law

7. Rule 50 (A) was adopted in its current form on 12 November 1997 and reads as follows:

The Prosecutor may amend an indictment, without leave, at any time before its confirmation, but thereafter, until the initial appearance of the accused before a Trial Chamber pursuant to Rule 62, only with leave of the Judge who confirmed it. At or after such initial appearance amendment of an indictment may only be made by motion before that Trial Chamber pursuant to Rule 73. If leave to amend is granted, Rule 47 (G) and Rule 53 bis apply mutatis mutandis to the amended indictment.

Prior to this time, the power to grant leave to amend an indictment before the commencement of trial lay with the confirming Judge, rather than by way of motion to the Trial Chamber seised of the matter. This is therefore the first time a Trial Chamber has had to consider the application of Rule 50 in its amended form. Prior practice of the International Tribunal as to the amendment of indictments is thus of little assistance to the Trial Chamber in the current matter.

8. The Prosecution accepts that the power to amend is not unlimited, and that the accused must be guaranteed a fair trial. However, this is not the only relevant right of the accused. Article 20, paragraph 1, of the Statute guarantees the right of the accused to a fair and expeditious trial. This right is further reflected in Article 21, paragraph 4 (c), which protects the right of the accused to be tried without undue delay. These Articles reflect the general principles found in international human rights law. The Trial Chamber also notes Articles 20, paragraph 2, and 21, paragraph 4 (a), of the Statute which provide for the accused to be informed promptly of the charges against him.

9. Both parties have referred to Article 9 (2) of the Covenant which provides:

Article 9 (2): Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

10. National legal systems generally permit amendments both before and during trial. Civil law systems and the common law systems treat the process differently. In many civil law systems, indictments are subject to judicial scrutiny by the investigating judge before the trial. Due to the inquisitorial nature of those systems, amendments are not as contentious as in the common law system, but if new allegations are based on different facts, it is common for the prosecutor to bring a separate indictment on those allegations.

11. In some common law jurisdictions amendments have been allowed even during late stages of trial, provided that the amendment will not cause injustice to the accused. For example, the Court of Appeal in England said in R. v. Johal and Ram:

[T]he longer the interval between arraignment and amendment, the more likely it is that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby.

This principle, which is reflected in a number of other common law jurisdictions, is not limited to the notion that the accused must have extra time to prepare his case to have a fair trial. It also includes the notion that the accused should not be misled as to the charges against him. The Scottish system disallows certain types of amendments altogether. The Criminal Procedure (Scotland) Act of 1995 provides:

s. 96 (2): Nothing in this section shall authorise an amendment which changes the character of the offence charged . . . .

III. REASONS

12. The Trial Chamberís reasons for refusing this Request for Leave to Amend are as follows:

(a) The proposed amendment (consisting of 14 added counts, and factual allegations which would increase the size of the Indictment from 8 to 18 pages) is so substantial as to amount to a substitution of a new indictment; an amendment of this proportion should have been made much more promptly (and not nearly a year after confirmation; and seven months after the arrest of the accused).

(b) The amendment sought is not the result of the subsequent acquisition of materials unavailable at the time of confirmation of the Indictment, nor are all the added counts covered by the factual allegations in the original Indictment. The reasons given by the Prosecution do not justify the delay in bringing this request. The fact remains that the Prosecution knew the whole case against the accused long before it was made known to the accused. The Prosecution should have made every effort to bring the whole case against the accused before the confirming Judge, so as to avoid any impression that the case against the accused was constructed subsequent to his arrest, and to adhere to the principle of equality of arms.

(c) To allow what amounts to the substitution of a new indictment at this late stage in the proceedings would infringe the right of the accused to be informed promptly of the charges against him, thus placing him at a disadvantage in the preparation of his defence. The only way to redress the unfairness suffered by the accused would be to allow the Defence substantial additional time to prepare his defence. The date for trial is set for 11 May 1998. The Defence has indicated that it would require another seven months for preparation, a period which does not seem unreasonable. The trial date would therefore be postponed at least until the autumn of this year, thus depriving the accused of his right to an expeditious trial.

(d) The accused continues to be held in custody. His application for provisional release was rejected. It is in the interests of justice that his trial should begin.

(e) The Trial Chamberís rejection of the Request for Leave to Amend renders further discussion on the substance of the amendment and other issues raised by the Prosecution inappropriate. In conclusion, the Trial Chamber deplores the delay in filing this request and trusts that no Trial Chamber in the future will be faced so late with an application of this kind.

IV. DISPOSITION

For the foregoing reasons

PURSUANT TO RULES 50 AND 73

THE TRIAL CHAMBER REFUSES the Prosecutorís Request for Leave to File an Amended Indictment of 28 January 1998.

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

_____________________________
Richard May
Presiding Judge

Dated this fifth day of March 1998
At The Hague
The Netherlands

[Seal of the Tribunal]