Case No. IT-04-74-PT

IN TRIAL CHAMBER I

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr Hans Holthuis

Decision:
18 October 2005

PROSECUTOR

v.

JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV PUSIC

_________________________________________

DECISION ON PROSECUTION APPLICATION FOR LEAVE TO AMEND THE INDICTMENT AND ON DEFENCE COMPLAINTS ON FORM OF PROPOSED AMENDED INDICTMENT

_________________________________________

The Office of the Prosecutor:

Mr Kenneth Scott

Counsel for the Accused:

Mr Michael Karnavas for the accused Mr. Jadranko Prlic
Mr Tomislav Kuzmanovic for the accused Mr. Bruno Stojic
Mr Bozidar Kovacic for the accused Mr. Slobodan Praljak
Ms Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr Tomislav Jonjic for the accused Mr. Valentin Coric
Mr Fahrundin Ibrisimovic for the accused Mr. Berislav Pusic

    Introduction

  1. This Trial Chamber (“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”) is seized of the “Prosecution’s Submission of Proposed Amended Indictment and Application for Leave to Amend” filed on 2 September 2005 (“Application”) and to which are attached the “Proposed Amended Indictment” and ex-parte confidential supporting material.

  2. The Application is made in accordance with the Chamber’s Decision on Defence Preliminary Motions Alleging Defect in the Form of the Indictment dated 22 July 2005 ("22 July 2005 Decision”), in which the Chamber granted in part the Accused’s motions on the form of the indictment1 filed pursuant to Rule 72(A)(ii) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) and ordered the Prosecution to file a new indictment within fourteen days of the filing of this decision in which it should (a) indicate in italics those changes made pursuant to the terms of this decision (b) indicate in bold those amendments for which leave is sought (if any).2

  3. On 4 August 2005, the Prosecution requested an extension of time to submit an amended indictment on the grounds that additional time to conduct extensive efforts to research various items is required and that the ensuing “amendments will in no substantial way affect the crimes or theories of responsibility charged in this case, so that nothing about the anticipated changes prevents the Accused in any way from going forward with or continuing their preparation.”3 The request was granted on 25 August 2005; the Chamber ordered that the amended indictment be filed by 5 September 2005.

  4. On 19 and 20 September 2005, the Defence for each accused in this case filed a Response (or a notice to join a Response) opposing the Application on the grounds that (1) the Prosecution failed to implement all of the Chamber’s orders of July 2005, (2) the proposed indictment include new charges, and (3) there are defects in the form of the Proposed Amended Indictment.4

  5. The Chamber notes that the material in support of the amendments sought by the Prosecution was not disclosed to the Defence with the Application. As a matter of principle, because of the Prosecution’s prosecutorial discretion, the Defence is not involved in the assessment of whether a charge brought by the Prosecution against a suspect - or an accused once the case is before a Trial Chamber - is supported by material establishing a prima facie case. However, in the instant case, the Prosecution submits that the ex-parte confidential material attached to the Application is, in particular, in support of clarifications and not in support of new charges.

  6. On 7 October 2005, the Chamber issued a confidential “Order for Disclosure of Material in Support of Proposed Amendments to Indictment”, whereby it ordered (1) the Prosecution to disclose the confidential and ex parte material attached to the Application to the Defence for the Accused and (2) the Defence to “provide, within five working days of this Order, comments, if any, which will be limited to 800 words, in addition to the observations they have already made in their respective Responses to the Application” and (3) the Prosecution to seek certification under Rule 73 of the Rules, if any, before 10 October 2005 in order to limit any further delay in the commencement of the trial in this case.

  7. On 10 October 2005, the Prosecution filed the “Prosecutor’s Submission in Response to Trial Chamber’s Order for Disclosure of Material in Support of Proposed Amendments to the Indictment” whereby it submitted that it had disclosed almost all of the material in support of the sought amendments. The same day, the Petkovic Defence filed the “Urgent Motion for the Defence for the Accused Petkovic for Clarification of the Trial Chamber’s Decision of 7 October 2005” whereby it sought clarifications concerning (1) which proposed amendments are clarifications, (2) since when the disclosed material was in the possession of the Prosecution, (3) whether the additional comments should pertain only to the disclosed supporting material and (4) whether it is appropriate to set a deadline of five days for the Defence to provide comments.

  8. The Chamber does not consider that the Petkovic urgent motion raised substantial matters. The Prosecution submits in the Application that all proposed amendments are clarifications and not new charges, therefore it is logic that the Prosecution does not identify which portions of the newly disclosed supporting material pertain to new charges. The issue of the alleged tardiness of the Prosecution in proposing amendments to the Indictment is already discussed in the Petkovic Response. The knowledge of the exact date at which the Prosecution entered into the possession of the newly disclosed material does not bring any substantial weight to the “tardiness ”arguments already raised in the Petkovic Response. The content of the Order of 7 October 2005 makes clear that disclosure was for the Defence to make comments, if any, pertaining to the newly disclosed supporting material. Finally, the Chamber reaffirms that the Defence had sufficient time to make appropriate comments, if any, within the deadline set.

  9. On 17 October 2005, the Petkovic Defence filed the “Addendum to the Response of the Accused Petkovic Defence to the Prosecution’s Submission of Proposed Amended Indictment and Application for Leave to Amend, with Necessary introductory Remarks ” (“Addendum”) whereby it makes arguments concerning the nature of the amendments proposed by the Prosecution which were already raised in the Petkovic Response5 and submits without further elaboration that the “new supporting material disclosed to the Defence does not support the impugned amendments.”6

    Rule 50 of the Rules

  10. The Application is made pursuant to Rule 50 of the Rules of Procedure and Evidence (“Rules”) which governs the amendment of indictments. Rule 50 (A) provides modalities concerning the competent judge and time at which an indictment may be amended. Rule 50 (B) expressly addresses the issue of new charges, without specifying whether new charges can only be based upon new facts, and Rule 50 (C) contemplates that the accused may require additional time to prepare for trial as a result of an amendment that involves adding a further count.7

  11. The first substantive question the rule is concerned with is the type of amendment which may be made to an indictment. The Defence opposes the Prosecution’s submission that the Proposed Amended Indictment does not add any new counts or any new “crime base” and that the “crime base” charged in this case is exactly the same, and the same twenty-six counts are charged and that “a motion to amend an indictment may generally be allowed to clarify or further develop the factual allegations found in the confirmed indictment, and to make minor changes to the indictment”.8

  12. In particular, the Defence for the Accused complain that the Proposed Amended Indictment includes new charges because the amendments to paragraphs 27 and 37 of the Indictment are expanding the allegations.9 The Praljak and Prlic Defence assert that in such a case, the Prosecution must submit supporting material for those new charges to enable the Chamber to establish a prima facie case or if the Chamber finds that the assertions in paragraphs 27 and 37 of the proposed amended indictment are not new charges, then the Defence requests the Prosecution to eradicate these assertions which are unfounded and unsupported speculations prejudicial to the Accused.10

  13. A similar point of contention arose between the parties in the Halilovic case and Trial Chamber III reviewed relevant case-law concerning what constitutes a “new charge” and considered that “When considering whether a proposed amendment results in the inclusion of a “new charge,” it is appropriate to focus on the imposition of criminal liability on a basis that was not previously reflected in the indictment. ?…g the key question is, therefore, whether the amendment introduces a basis for conviction that is factually and/or legally distinct from any already alleged in the indictment”.11 In other words, a new allegation, even without additional factual allegations, which could be the sole legal basis for an accused’s conviction is a “new charge” and if a new allegation does not expose an accused to an additional risk of conviction, then it cannot be considered as a new charge.12

  14. In relation to the addition of new charges even in the absence of new factual or evidentiary material, this has been accepted in other cases before the ICTY and the ICTR.13 For instance, in the Naletilic and Martinovic case, the Trial Chamber agreed to add a new charge of “Dangerous or Humiliating Labour” in the absence of new evidence.14 In the Musema case, the Trial Chamber allowed a new charge of complicity in genocide as an alternative to the existing charge of genocide rather than as an additional count.15 Also, in the Niyitegeka case, the Trial Chamber said that new charges could be added to an indictment to “allege an additional legal theory of liability with no new acts ”.16 In sum, although the case-law of the ICTY and the ICTR on the exercise of the discretion contained in Rule 50 demonstrates that a decision to accept an amendment will normally be forthcoming unless prejudice can be shown to the accused, it still remains understood that amendments prompted by newly discovered evidence must be supported by prima facie evidence.

  15. The second substantive question Rule 50 is concerned with and which is the second key consideration for the Chamber in granting leave to amend the indictment, is to ensure that the Accused are not prejudiced by an amendment of the indictment against them in the conduct of their defence. In this regard, the Petkovic Defence complains that “the substantial portion of the proposed amendments would cause unfair prejudice to the accused.”17

  16. Although there are no express limits on the exercise of the discretion contained in Rule 50, when viewing the Statute and Rules as a whole, that discretion must be exercised with regard to the right of the accused to a fair trial. In particular, depending on the circumstances of the case, the right of the accused to an expeditious trial, to be promptly informed of the charges against him, and to have adequate time and facilities for the preparation of his defence, potentially arise when considering objections to an amended indictment.18 Also, when deciding the question of whether the amendment results in any prejudice to the accused, due consideration must be given to the “Prosecutor’s unfettered responsibility to prosecute the accused to the full extent of the law and to present all relevant evidence before the Trial Chamber”.19

  17. Thus, in determining whether any prejudice to the Accused will follow from an amendment to the indictment, regard must be had to the circumstances of the case as a whole. If for instance additional time to prepare the conduct of the defence is given to the accused, an amendment does not need to result in prejudice to the accused.20 The delay to the trial of the Accused resulting from the amendment should not be unreasonable in light of the complexity of the case and when considering the crimes contained in the existing indictment at the time of his arrest, so that his right to be promptly informed of the charges against him is not violated by the amendment. Such considerations may not be relevant though if the amendments sought by the Prosecution are not new charges but clarifications of the factual or legal basis of the Indictment. Therefore, the Chamber emphasises that the decision of whether any prejudice to the Accused will follow from an amendment to the indictment is taken in light of all aspects of the case.

    The amendments proposed by the Prosecution

  18. The Prosecution makes the general argument that the proposed amendments will not cause prejudicial delay and should be allowed in view of the fact that the indictment against the Accused, by Tribunal’s standards, is narrow in scope in that the Proposed Amended Indictment does not add any new counts or any new “crime base” and that in “practically all instances, the proposed amendments primarily clarify or specify the allegations already made against the Accused”.21 The Prosecution explains that “for example, an error was recognised early in these proceedings, concerning Count 25, in Paragraph 229, in that the citation incorrectly indicated Article “3(d),” when the correct citation is Article 3, without the “( d).” This has now been corrected”.22

  19. The Prosecution further observes that this case is “still some months away from trial (with no firm trial date yet scheduled) and certainly the Defence cases are more than eighteen months away. The Prosecution submits that none of the proposed amendments fundamentally alter the existing case.”23

  20. The Defence of the Accused Petkovic argues that “the substantial portion of the proposed amendments would cause unfair prejudice to the accused”24 and that the Prosecution “fails to support the proposed amendments by any relevant arguments”.25 Inter alia, the Petkovic Defence submits that unfair prejudice to the Accused would occur because the nature of the Impugned proposed amendments is “of the utmost gravity” and their scope is “broadened to the maximum extent” but also because the proposed amendments would “inevitably cause the postponement of the trial, since the new charges and new forms of liability alleged would trigger numerous defence motions pursuant to Rule 72 of the Rules and require adequate time for their consideration” and “the Defence estimates that in the circumstances it would need at least year and a half for additional investigation and preparation.”26 The Petkovic Defence also suggests that “the Prosecution seeks to amend the Indictment in such substantial way a year and a half after the initial appearance of the accused took place without any reasonable explanation for doing so” and prior notice although the trial was scheduled to start on 1 December 2005.27

  21. The Chamber recalls that the showing of whether amendments to an indictment are brought forward in a timely manner and do not cause prejudicial delay must be “measured within the framework of the overall requirement of the fairness of the proceedings.”28 The Chamber is satisfied that in the present case there is no suggestion that the Prosecution seeks an improper tactical advantage by filing the Application. Furthermore, the Chamber is satisfied that the Prosecution seeks to amend the Indictment following the 22 July 2005 Decision which allowed the Prosecution to propose amendments to the Indictment.29 The Chamber will examine whether the amendments sought are such in scope, having had due regard to the case as a whole, that, at the outset, the Accused’s right to a fair trial would be prejudiced if leave to amend the Indictment was granted.

  22. The Trial Chamber turns now to examine the proposed amendments to the Indictment.

    Proposed amendments in paragraphs referencing the Counts

  23. The Prosecution proposes to make the following amendments referencing the counts of the Indictment:

    (a) references to Counts 12, 13 and 14 (conditions of confinement) which were omitted by oversight are added in paragraph 60 to reflect the crimes alleged in Prozor in paragraph 57. Similar amendments are made in paragraph 153. While paragraphs 148 and 149 refer to the crime of unlawful labour in Ljubuski, paragraph 153 did not refer to Count 18, while paragraph 229 did refer to paragraphs 148 and 149 under Count 18 (unlawful labour);30

    (b) paragraph 229 of the Indictment is amended to correct the reverse situation. In paragraph 229 under Counts 19 and 20 (destruction of property), there was no reference to the destruction of property in Mostar, despite the fact that paragraphs 116 and 118 allege that this crime occurred there. Consequently, this error is corrected by inserting those references in Counts 19 and 20;31

    (c) the amendment in paragraph 229 of the Indictment (Count 25) concerns an error in the citation to Article 3(d), and the amendment deletes the “(d).”32

  24. The Petkovic Defence argues that “the Prosecution seeks to introduce, without justification whatsoever, new charges through paragraphs [ …] 60, 150, 151, 153, 159 and thus considerably extends the 'crime base' of the Indictment.”33

  25. The Chamber is not convinced by the argument of the Defence. The Chamber is satisfied that the proposed amendments are minor, clarify the factual allegations found in the Indictment and do not cause prejudice to the Accused.

  26. The Chamber grants leave to the Prosecution to amend the indictment to include the aforementioned proposed amendments.

    Proposed amendments to figures on number of victims

  27. The Prosecution seeks leave to amend paragraphs 130, 138 and 139 of the Indictment as well as the annexes to the Indictment to reflect a change in number of victims killed or wounded.34

  28. The Prosecution submits that the amendments to the figures on the number of victims are due to a continuing review of the evidence and other considerations, which resulted in some names being deleted from these lists, while other names are added. Additionally, the spellings of some of the victim’s names have been corrected.35 The Prosecution emphasizes that the total figures have not changed significantly, and in the case of paragraph 139, the number has actually been reduced by one,36 and that none of these amendments substantially change the Prosecution case.37

  29. The Defence makes no arguments in relation to those proposed amendments. The Chamber is satisfied that the proposed amendments clarify the factual allegations found in the Indictment and do not cause prejudice to the Accused.

  30. Accordingly, the Chamber grants leave to the Prosecution to amend the indictment to include the aforementioned proposed amendments.

    Proposed amendments in paragraph 16 of the Indictment

  31. The Prosecution proposes to amend paragraph 16 of the Indictment in order to respond to the Accused’s previous request to have more information concerning members of the joint criminal enterprise alleged in the Indictment. The Prosecution also proposes to add a new paragraph 16.1 to make paragraph 16 of the Indictment clearer and in conformity with the evolving Tribunal jurisprudence on joint criminal enterprise and co-perpetration.38

  32. The Prosecution explains that the amendments in paragraph 16 and the addition of a paragraph 16.1 in the Indictment may appear more substantial than the other changes in the Proposed Amended Indictment but that “a comparison of the new language to the prior Paragraph 16 indicates that the vast majority of the language is exactly the same”.39 To the Prosecution, “the single most operative word in Paragraph 16.1 is the word “through” because the paragraph is intended to cover the situation where a joint criminal enterprise is pursued or accomplished, or the crimes therein committed, through persons who may or may not themselves be members of the joint criminal enterprise.”40

  33. The Stojic Defence opposes the addition of the names of Dario Kordic, Tihomir Blaskic and Mladen Naletelic to paragraph 16 (and to new paragraph 16.1) of the Indictment. The Stojic Defence reasons that by adding the names of those persons as known members of the joint criminal enterprise, the Prosecution “enlarged the geographical scope of the case because Tihomir Blaskic and Dario Kordic were indicted for the attack on several places in Central Bosnia, among which the village of Ahmici.”41

  34. The Chamber cannot see how by naming known participants to the alleged join criminal enterprise, the geographical scope of the Accused’s case is being enlarged. The geographical scope of the case against the Accused is clearly set out in the Indictment. It is not a reasonable assumption to consider that because the Prosecution adds names of known members of the joint criminal enterprise - at the previous request of the Defence- and which happen to be the names of persons convicted by the Tribunal, it necessarily ensues that the scope of this case is enlarged to subsume the geographical scope of the cases of those convicted persons.

  35. The Petkovic Defence opposes the addition of a paragraph 16.1 (and paragraphs 218-225) to the Indictment on the grounds that the Prosecution seeks by doing so to introduce “new modes of commission of crimes and new forms of criminal liability against the accused for each particular crime charged – indirect perpetration. This also introduces new charges against the accused, since this particular mode of commission of the crime(s) and corresponding form of liability, including JCE, with the specific actus reus and mens rea requirements. The Prosecution’s assertion that this is done in accordance to the ICTY jurisprudence is incorrect and misleading”.42

  36. Paragraph 16.1 of the Proposed Amended Indictment states as follows:

    16.1. In addition and in the alternative, the members of the joint criminal enterprise, including Franjo Tudjman, Gojko Susak, Janko Bobetko, Mate Boban, JADRANKO PRLIC, BRUNO STOJIC, SLOBODAN PRALJAK, MILIVOJ PETKOVIC, VALENTIN CORIC, BERISLAV PUSIC, Dario Kordic, Tihomir Blaskic and Mladen Naletelic (also known as “Tuta”), and others, implemented the objectives of the joint criminal enterprise through the following organisations and persons, who whey controlled, directly or indirectly : members of the Herceg-Bosna/HVO leadership and authorities (as described in Paragraph 25), including various officials and members of the Herceg-Bosna/HVO government and political structures, at all levels (including in municipal governments and local organisations); various leaders and members of the HDZ ad HDZ-BiH, at all levels; various officers and members of the Herceg-Bosna/HVO forces (as described in Paragraph 25); various members of the armed forces, police, security and intelligence services of the Republic of Croatia; and other persons, both known and unknown.

  37. Current paragraph 16 of the Indictment first states that “Numerous persons participated in this joint criminal enterprise. Each participant, by his or her acts, omissions, practices or conduct, both individually and in concert with or through other persons, substantially contributed to carrying out the enterprise and accomplishing its purpose”, then lists those participants and finally provides that “These persons led, directed, planned, prepared, encouraged, promoted, instigated, ordered, committed, carried out, facilitated, participated in, contributed to, supported and otherwise acted in furtherance of the joint criminal enterprise.” The apparently major change in proposed paragraph 16.1 is the allegation that the Accused and other persons implemented the objectives of the joint criminal enterprise through organisations and persons [which are listed in current paragraph 16], who whey controlled, directly or indirectly.

  38. The Chamber deems that this addition does not amount to a new charge. The proposed paragraph 16.1 may not constitute in itself a factual basis for a conviction. The Indictment otherwise alleged the criminal responsibility of the Accused for their alleged control over the political, administrative or military entities listed in current paragraph 16 of the Indictment. Such a direct or indirect control over Herceg -Bosna/HVO or HDZ ad HDZ-BiH is alleged in particular in paragraph 17 of the Indictment.

  39. The Chamber is satisfied that the proposed amendments to paragraph 16 and the proposed addition of a paragraph 16.1 to the Indictment clarify the factual allegations found in the Indictment and do not cause prejudice to the Accused.

  40. The Chamber grants leave to the Prosecution to amend the indictment to include the aforementioned proposed amendments.

    Proposed amendments in paragraphs 18-217 of the Indictment

  41. The Prosecution proposes to amend paragraphs 18-217 of the Indictment to mostly correct small errors or clarify the Indictment or, if more than a few words have been added such as in paragraphs 27 and 37 of the Indictment, to make a fuller statement of the facts and circumstances related to this case.43 The Prosecution emphasizes that these amendments do not change the charges or crime base in the case44 and do not cause prejudice to the Accused.45

  42. The Defence opposes the proposed amendments to paragraphs 27 and 37 of the Indictment on the grounds that these amendments expand the allegations against the Accused.46 The Defence explains that paragraph 27 is amended to now claim that there was ongoing cooperation between the Bosnian Croats and Bosnian Serbs during 1992 and 1993 and that paragraph 37 was amended to claim that H-B/HVO authorities engaged in efforts throughout 1993 to transfer thousands of Bosnian Croats from other parts of BiH to western Herzegovina.47 The Stojic Defence summarizes the conclusion reached by the Defence as follows: “since these new allegations are found in the Chapter of the Indictment titled “Statement of facts” in which the Prosecutor described criminal acts of the accused, the Defence arrived at the conclusion that cited allegations are in fact new charges and that in that manner the Prosecution enlarges the crime-base of the ongoing case.”48

  43. Paragraph 27 of the Proposed Amended Indictment, with the part in bold showing the amendment proposed by the Prosecution, reads as follows:

    27. In the spring and early summer of 1992, the Herceg-Bosna/HVO authorities and forces, while asserting their control and engaging in the actions described above, carried out military operations with armed forces of the Government of Bosnia and Herzegovina in Response to JNA and Bosnian Serb military actions in Herzegovina and elsewhere. In connection with or following the Serb forces leaving Mostar, the Herceg-Bosna/HVO-led forces destroyed the city's Serbian Orthodox Church and nearby Serb houses. Many Serbs left Mostar during this time, while others were held in poor conditions in HVO-run detention camps. Notwithstanding the hostilities between the Herceg-Bosna/HVO forces and Bosnian Serb forces in the spring and summer of 1992, there was substantial ongoing co-operation between the Bosnian Croats and Bosnian Serbs following a meeting between Radovan Karadzic and Mate Boban in Graz, Austria, on 6 May 1992, which co-operation continued in the parts of Bosnia and Herzegovina most relevant to this indictment, with minor exceptions through the end of 1993.

  44. The proposed amendment in paragraph 27 qualifies the allegation made in the previous sentence in that it explains that although Herceg-Bosna/HVO authorities and forces carried out military operations with armed forces of the Government of Bosnia and Herzegovina in Response to JNA and Bosnian Serb military actions in Herzegovina and elsewhere, the Bosnian Croats and Bosnian Serbs cooperated until the end of 1993. The Response to the first question the Chamber must respond here, namely whether the allegation that Bosnian Croats and Bosnian Serbs cooperated from spring 1992 to end of 1993 is a new charge in that it may constitute in itself a factual basis for a conviction, is obvious. Such a factual allegation cannot in itself be the sole basis for a conviction. It is not reasonable to assume that because it is alleged that Bosnian Croats and Bosnian Serbs cooperated until the end of 1993, the alleged criminal responsibility of the Accused is expanded. The Chamber acknowledges however that the amendment is a substantial clarification to paragraph 27 of the Indictment.

  45. The proposed amendment to paragraph 27 of the Indictment does not constitute a new charge as claimed by the Defence but is a substantial clarification of the factual allegations found in the Indictment to be read – the Chamber must recall – as a whole.

  46. Paragraph 37 of the Proposed Amended Indictment, with the part in bold showing the amendment proposed by the Prosecution, reads as follows:

    37. In early July, Herceg-Bosna/HVO forces, supported by (and involving) the government and armed forces of the Republic of Croatia, launched a massive campaign to attack, arrest and cleanse Bosnian Muslims from areas claimed to be part of Herceg-Bosna (including the municipalities of Mostar, Prozor, Stolac, Capljina and Ljubuski). From June through September 1993, Herceg-Bosna/HVO forces systematically arrested, mistreated and evicted tens of thousands of Bosnian Muslim men, women, children and elderly from their homes, detained them and/or transferred them to other areas or deported them to other countries. At the same time, the Herceg-Bosna/HVO authorities engaged in efforts throughout 1993 to transfer (or cause the transfer of) thousands of Bosnian Croats from other parts of Bosnia and Herzegovina, and in particular, Central Bosnia, to western Herzegovina.

  47. The amendment proposed to be made in paragraph 37 of the Indictment is a clarification of the factual allegations contained in the sentence preceding the amendment. Such a factual allegation cannot in itself be the sole basis for a conviction of the Accused. The allegation that the Herceg-Bosna/HVO authorities detained or transferred tens of thousands of Bosnian Muslim men, women, children and elderly from their homes is substantiated by the proposed amendment which alleges that in parallel to the transfer, inter alia, of tens of thousands of Bosnian Muslims, tens of thousands of Bosnian Croats were transferred from other parts of Bosnia and Herzegovina, in particular Western Herzegovina.

  48. The proposed amendment to paragraph 37 of the Indictment does not constitute a new charge as claimed by the Defence and is a clarification of the factual allegations found in the Indictment.

  49. The Defence further claims that “If the Chamber finds that the assertions in paragraphs 27 and 37 of the proposed amended indictment are not new charges, then the Defence requests the Prosecution to eradicate these assertions which are unfounded and unsupported speculations prejudicial to the Accused”.49

  50. In relation to the amendments proposed to be made in paragraphs 27 and 37 of the Indictment, the Chamber is satisfied that the allegations made in those paragraphs, for instance the reference to a meeting between Mate Boban and Radovan Karadzic on 6 May 1992 in Graz and the transfer (or cause the transfer of) thousands of Bosnian Croats from other parts of Bosnia and Herzegovina are supported by material disclosed only to the Chamber (ex-parte confidential supporting material attached to the Application). The Chamber is satisfied that the Prosecution does not make “assertions which are unfounded and unsupported speculations” as claimed by the Defence.

  51. The Chamber rejects the Defence’s objections and is satisfied that the proposed amendments in paragraphs 27 and 37 of the Indictment clarify the factual allegations found in the Indictment and do not cause prejudice to the Accused.

  52. The Trial Chamber grants leave to the Prosecution to amend paragraphs 18-217 of the Indictment as proposed by the Prosecution.

    Amendment to paragraphs 218 to 226 of the Indictment (Criminal Responsibility Section)

    16. The Prosecution asserts that “in light of continuing developments and assessments of Tribunal jurisprudence it has revised paragraphs 218 to 226 of the Indictment and proposes amendments to make clearer the various forms and aspects of joint criminal enterprise, co-perpetration and indirect perpetration”.50

    19. To the Prosecution, the substantial majority of the text in the proposed paragraphs 218 to 226 was already contained in the original paragraphs and the proposed amendments are in the interests of justice and do not prejudice the Defence.51

  53. The Petkovic Defence opposes the amendments to paragraphs 218-220 in the Proposed Amended Indictment on the grounds that they “affect radically the core of the Indictment as far as the criminal responsibility of the accused under 7(1) is concerned”. The Petkovic Defence also opposes the amendments to paragraph 221 which broaden “the scope of criminal responsibility attached to each accused” and to paragraphs 218 -225 because they introduce indirect perpetration as a new mode of liability.52

  54. At the outset, the amendments in paragraph 218 of the Proposed Amended Indictment appear substantial. Current paragraph 218 of the Indictment alleges that:

    218. The crimes charged in this indictment were part of the joint criminal enterprise described in Paragraphs 15, 16 and 17 and were committed in the course of the enterprise, or were the reasonable and foreseeable consequences of implementing or attempting to implement the criminal enterprise. The joint criminal enterprise was in existence at the time of the commission of the crimes charged in this indictment, and at the time of the participatory conduct of each of the accused in furtherance thereof.

    Paragraph 218 of the Proposed Amended Indictment is twice longer and alleges that the Accused planned, instigated, ordered or committed the crimes charged in this Indictment, pursuant to Article 7(1) of the Statute. The paragraph then continues detailing all possible legal or factual requisites for criminal liability under Article 7(1) to arise. The last sentence of this new paragraph alleges that the Accused acted with the requisite state of mind and finally alleges that the Accused “acted with the mutual awareness of the substantial likelihood that crimes would occur as a direct consequence of the pursuit of the common goal.”

  55. Paragraph 218 of the Proposed Amended Indictment only now alleges criminal responsibility under Article 7(1) and exclude – at this stage – criminal responsibility under the joint criminal responsibility theory. A review of the following paragraphs shows that the Prosecution has rearranged the order of the allegations concerning the Accused’s criminal responsibility under article 7(1) of the Statute. Paragraphs 218-220 of the Proposed Amended Indictment allege the criminal responsibility of the Accused under Article 7(1) and paragraphs 221-227 of the Proposed Amended Indictment allege the criminal responsibility of the Accused under Article 7(1) but more specifically under the joint criminal enterprise theory.

  56. Paragraph 219 alleges that the Accused and other perpetrators or actors involved in the crimes charged acted with the knowledge and state of mind required for the commission of each crime charged in this indictment. Paragraph 219 of the Proposed Amended Indictment reformulates this allegation with different wordings.

  57. Current paragraph 220 of the Indictment alleges that “Pursuant to Article 7 (1) of the Statute, each of the accused is criminally responsible for the crimes charged in this indictment which he planned, instigated, ordered or committed, or in the planning, preparation or execution of which he aided and abetted. As part of his responsibility, each accused is also charged as a co-perpetrator and/or indirect perpetrator”. This paragraph is substantially amended to now allege that, in addition or the alternative, the Accused are charged with and criminally responsible for each crime he substantially aided and abetted and that they had the requisite mens rea.53 This amendment is in line with the rearrangement of the order of paragraphs mentioned in paragraph 51 of this present decision.

  58. Paragraphs 221-223 of the Indictment are amended to reflect the current state of the case-law of the Tribunal on the theory of joint criminal enterprise – form 1. Similarly, paragraphs 224-225 of the Indictment which continue to allege that the Accused are liable for having participated in systems of ill-treatment and paragraph 226 of the Indictment which continue to allege that, in addition or in the alternative, the Accused are liable for having aided and abetted the ill-treatments systems, are also amended to reflect the current state of the case-law concerning the theory of joint criminal enterprise – form 2. The amendments do not introduce a new form of liability, namely indirect perpetration, as claimed by the Petkovic Defence nor are the charges in those paragraphs expanded. Current paragraph 220 of the Indictment already alleges that “As part of his responsibility, each accused is also charged as a co-perpetrator and/or indirect perpetrator”. Secondly, the Chamber notes that the Prosecution seeks to clarify the legal and factual prerequisites for criminal liability under the theory of joint criminal enterprise – form 2.

  59. Paragraph 227 of the Indictment alleges that the Accused are liable for all natural and foreseeable consequences of the joint criminal enterprise (joint criminal enterprise – form 3).54 The amendments sought are in conformity with the case-law of the Tribunal on this issue.

  60. The Chamber finds that the amendments sought by the Prosecution in the above -mentioned paragraphs are not new charges but are merely clarifications concerning legal and factual elements required to be proved for criminal liability under Article 7(1) to arise. Furthermore, the Chamber notes that the added details in paragraphs 118-227 of the Proposed Amended Indictment are in favour of the Accused who are better informed of the Prosecution’s case.

  61. The Chamber is satisfied that the proposed amendments clarify the legal and factual allegations found in the Indictment and do not cause prejudice to the Accused.

  62. The Chamber grants leave to the Prosecution to amend the indictment to include the aforementioned proposed amendments.

  63. In sum, the Chamber finds that the all the amendments sought by the Prosecution are acceptable and do not cause unfair prejudice to the Accused’s right to a fair trial. Accordingly, the Petkovic Defence’s request to have additional time (18 months ) to prepare the Defence if the Prosecution is granted leave to amend the Indictment is rejected.

  64. The Chamber turns now to the Defence’s complaints concerning the form of the Proposed Amended Indictment.

    The form of the Proposed Amended Indictment

  65. The Defence submits that the Prosecution failed to submit an amended indictment in full compliance with the 22 July 2005 Decision because:

    (a) paragraph 17 of the Indictment has been superficially amended and paragraph 39 of the indictment was not amended as ordered by the Chamber to further specify the exact alleged role of each Accused as ordered;55

    (b) the Prosecution has not submitted a chart recalling the military or governmental structure involved in the commission of the underlying crimes by municipality or detention centre.56

    (c) the correct personal data of the Accused were not provided as ordered by the Chamber;57

    (d) the proposed amended indictment “fails to adequately inform the Accused or specify the exact nature and conduct which is being charged and which the Accused will need to defend”,58

    (e) the amendments “additionally contribute to the vagueness of the Indictment.”59

  66. In relation to the Defence’s complaints that paragraph 17 of the Indictment has only been superficially amended and that paragraph 39 of the indictment was not amended as ordered by the Chamber in its 22 July 2005 Decision, the Chamber recalls that this Decision states the following:

    27. The Chamber is not fully satisfied that the paragraphs mentioned by the Prosecution as describing the role of the Accused sufficiently describe their alleged role in the alleged events. Paragraphs 17 and 39 are the most relevant ones and they do not permit, in the Chamber’s view, the Defence to adequately prepare. As stated above, paragraph 17 of the Indictment is impermissibly vague in that it states that the accused participated in the JCE “in one or more of the following ways” without attaching one or more ways to a specific accused. Each Accused should be in a position to determine from the Indictment what exact conduct or participatory act he allegedly had. Paragraph 39 alleges that the acts listed were committed by all Accused and to that extent is clear. However, it is unclear what role or conduct each Accused had in respect of the offences charged.

  67. The Chamber carefully reviewed the amendments made by the Prosecution to paragraph 17 of the Indictment and considers that it cannot be said that the Indictment was only superficially amended. The Chamber is satisfied that the added sub-paragraphs 17.1 through 17.6 allow each Accused to be sufficiently informed of his alleged role or conduct in the alleged joint criminal enterprise. Accordingly, the Prosecution has complied with the terms of the 22 July 2005 Decision concerning paragraph 17 of the Indictment.

  68. In relation to paragraph 39 of the Indictment, the 22 July 2005 Decision considered that “Paragraph 39 alleges that the acts listed were committed by all Accused and to that extent is clear”; hence the Prosecution was not required to amend paragraph 39 of the Indictment. The Defence’s assumption that the Prosecution should have amended paragraph 39 may originate from a misreading of paragraph 27 of the 22 July 2005 Decision.

  69. The objections of the Defence concerning paragraphs 17 and 39 the Proposed Amended Indictment are dismissed.

  70. In relation to the Defence’s complaints that the Prosecution has not submitted a chart recalling the military or governmental structure involved in the commission of the underlying crimes by municipality or detention centre, the 22 July 2005 Decision instructed the Prosecution as follows:

    47. […] the Chamber is of the view that a chart recalling the military or governmental structure involved in the commission of the underlying crimes by municipality or detention centres may assist the Defence to prepare more effectively. Such chart needs not to be attached to the Indictment however but be submitted to the Defence in a separate filing.

  71. The Defence appears to have misunderstood the Decision which instructs the Prosecution to file the chart in a separate filing. The Decision does not indicate that such a separate filing needs to be done at the time of the submission of the Proposed Amended Indictment. The assumption made by the Defence is not correct. However the Chamber reminds the Prosecution that such a filing must be done before the filing of the pre-trial brief to allow an effective preparation of the defence of the Accused.

  72. The objections of the Defence concerning the filing of a chart with the Proposed Amended Indictment are dismissed.

  73. Upon the Defence’s previous complaints that the Accused’s personal data and positions, including the exact time-frame, should be specified or corrected in the Indictment, the 22 July 2005 Decision stated that:

    15. The Chamber accepts that the Accused’s personal data and positions must be stated as accurately as possible in the Indictment. The Prosecution is directed to make appropriate amendments to the Indictment, with the assistance of the Defence, to correct details concerning the Accused’s personal data. In relation to the Accused official positions, including the relevant time-frame, those matters will have to be resolved at trial as they concern alleged control or powers exercised by the accused which will need to be proved at trial.

  74. The Stojic Defence complains that although the Prosecution added the fact that “General Bobetko assigned him as Acting Officer in charge of logistical support at Forward Command Post in Grude”, the fact that the accused Stojic “was assigned as a civilian and was not a military person during the relevant period” was omitted.60 The Praljak Defence submits that some personal data of the accused Praljak remain erroneous such as his date of birth, his nickname and several elements of his curriculum vitae and functions held tempore crimines (sic).61 The Prlic Defence submits that some personal data of the accused Prlic remain erroneous but does not provide any examples.62

  75. The Chamber recalls that the official positions of the Accused, including the relevant time-frame, are matters to be resolved at trial. The civilian status of Stojic or Praljak’s functions held tempore crimini are therefore matters for trial resolution. In relation to erroneous personal data in the Indictment, such as Praljak’s date of birth or nickname, the Chamber instructed the Prosecution to correct those data with the assistance of the Defence. Although it is to be noted that the Prosecution could have approached the Defence in relation to those issues, the Defence seems to have assumed that such assistance could not have been offered spontaneously.

  76. The Chamber instructs the Defence to provide the Prosecution with the personal data of the accused Praljak and Prlic, and of any other accused whose personal data is not correct, in order to have those data included in the Proposed Amended Indictment.

  77. The Defence complains that the Proposed Amended Indictment “fails to adequately inform the Accused or specify the exact nature and conduct which is being charged and which the Accused will need to defend” since the “Accused is left to decipher whether acts or conduct that are contained or asserted in the “Statement of the Case” are part and parcel of or distinct from the actual crimes charged in the Chapter “Counts 1 to 26”.63

  78. The 22 July 2005 Decision has already addressed this complaint – albeit formulated in a different manner - in its paragraphs 62-64 and has recalled that the Indictment must be read as a whole.

  79. The Defence finally complains that the amendment in the Proposed Amended Indictment “additionally contribute to the vagueness of the Indictment.”64

  80. The Chamber disagrees with this statement and finds that on the contrary the amendments sought by the Prosecution, by clarifying the legal and factual basis of the Indictment which is already very detailed, better inform the Accused of the Prosecution’s case. In particular, paragraphs 218-227 of the Proposed Amended Indictment better inform the Accused of the legal elements required to be proved by the Prosecution for criminal responsibility under Article 7(1) of the Statute to arise.

    FOR THE FOREGOING REASONS, pursuant to Rules 50 and 72 of the Rules of Procedure and Evidence,

    GRANTS the Application,

    INSTRUCTS the Defence to assist the Prosecution in providing relevant personal data of the Accused.

    DISMISSES all other objections of the Defence for the Accused on the form of the Proposed Amended Indictment.

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

Dated this eighteenth day of October 2005
At The Hague,
The Netherlands.

____________________
Judge Liu Daqun
Presiding

[Seal of the Tribunal]


1 - Indictment filed on 3 March 2004 (“Indictment”).
A name = "2">2 - Preliminary Motion to Dismiss the Defective Indictment Against Jadranko Prlic Pursuant to Rule 72(A)(ii), 15 December 2004; Bruno Stojic’s Preliminary Motion on the Defects in the Form of the Indictment, 15 December 2004; The Accused Slobodan Praljak’s Motion to Strike the Indictment for Vagueness or to Provide Particulars, 15 December 2004; The Accused Milivoj Petkovic’s Preliminary Motion on the Form of the Indictment, 15 December 2004; The Accused Valentin Coric’s Motion on the Form of the Indictment, 15 December 2004; Berislav Pusic’s Preliminary Motion on the Flaw in the Form of the Indictment Rule 72a(ii), 14 December 2004.
3 - Submission Concerning the Trial Chamber’s Order Dated 22 July 2005 and Motion for Extension of time, 4 August 2005.
4 - Prlic’s Response to Prosecution’s submission of proposed amended indictment and application for leave to amend, 19 September 2005 (“Prlic Response”); Stojic’s opposition to Prosecutor’s submission of proposed amended indictment and application for leave to amend, 19 September 2005 (“Stojic Response”); Praljak’s Response to Prosecution’s submission of proposed amended indictment and application for leave to amend, 19 September 2005 (“Praljak Response”); Petkovic’s Response to Prosecution’s submission of proposed amended indictment and application for leave to amend, 19 September 2005 (“Petkovic Response”); Coric’s notice of joinder to Petkovic’s Response to Prosecution’s submission of proposed amended indictment and application for leave to amend, 19 September 2005; Confidential motion on behalf of Berislav Pusic to join the Response of Petkovic to the Prosecution’s submission of proposed amended indictment and application for leave to amend, 20 September 2005.
5 - See Addendum, paras 9-17 and 19. The PetkovicDefence argues, inter alia, that “the Prosecution’s Application for Leave to Amend did not articulate any comprehensible reasons or grounds justifying the proposed amendments” (para. 10), that “the Prosecution did not clearly distinguish the amendments or changes that could be regarded as “clarifications” from those that introduce or amount to new charges” (para. 12), that the proposed amendments in paragraphs 16.1, 27, 37, 60, 150, 151, 153, 159 and 218-225 are new charges (para. 14).
6 - Addendum, para. 18.
7 - (A) (i) The Prosecutor may amend an indictment: […] (c) 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. Independently of any other factors relevant to the exercise of the discretion, leave to amend an indictment shall not be granted unless the Trial Chamber or Judge is satisfied there is evidence which satisfies the standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment. Further confirmation is not required where an indictment is amended by leave. Rule 47 (G) and Rule 53 bis apply mutatis mutandis to the amended indictment. (B) If the amended indictment includes new charges and the accused has already appeared before a Trial Chamber in accordance with Rule 62, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges. (C) The accused shall have a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of the new charges and, where necessary, the date for trial may be postponed to ensure adequate time for the preparation of the defence.
8 - Application, para. 7 (footnotes omitted).
9 - Praljak Response, paras 12-19, Prlic Response, paras 9-16, Stojic Response, paras 14-17, Petkovic Response, para. 27, the PetkovicDefence argues in particular that paragraphs 16, 27, 37, 60, 150, 151, 153, 159 and 218-225 of the Proposed Amended Indictment amount to new charges.
10 - Praljak Response, paras 18-19, Prlic Response, paras 10-16. See also Stojic Response, para. 18. The Chamber recalls that the Application is filed with ex parte confidential supporting material which is not disclosed to the Defence at this stage.
11 - Prosecutor v. Sefer Halilovic, Case No. IT-01-48-PT, Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment, 17 December 2004, para. 30.
12 - Ibid, para. 35.
13 - See Prosecutor v Krstic, Case No. IT-98-33-PT, Amended Indictment, 27 October 1999.
14 - Prosecutor v Naletilic and Martinovic (“Naletilic case”), Case No. IT-98-34-PT, Decision on Prosecution Motion to Amend Count 5 of the Indictment, 28 November 2000.
15 - See Prosecutor v Musema, Case No. ICTR-96-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 18 November 1998.
16 - See Prosecutor v Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000.
17 - Petkovic Response, sub-title B, para. 19
18 - See Naletilic case.
19 - See for example, Prosecutor v Musema, Case No. ICTR096-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 6 May 1999.In Prosecutor v Kabiligi and Ntabakuze, Case No. ICTR-97-34-I/ICTR-97-30-I, Decision on the Prosecutor’s Motion to Amend the Indictment, 8 October 1999.
20 - See Prosecutor v Kovacevic, Case No. IT-97-24-PT, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998.
21 - Application, para. 7 (footnotes omitted).
22 - Application, para. 6.
23 - Application, para. 18.
24 - Petkovic Response, sub-title B, para. 19
25 - Petkovic Response, paras 14-18.
26 - Petkovic Response, para. 32.
27 - Petkovic Response, para. 32.
28 - Prosecutor v Kovacevic, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, para. 31.
29 - See Disposition of 22 July 2005 Decision.
30 - Application, para. 8. The Prosecution submits that “the purpose of this amendment is to bring paragraph 60 into conformity with paragraph 229, which lists all counts and refers to the paragraphs where the allegations related to these counts can be found. There is a reference to paragraph 57 in paragraph 229 (under Counts 12, 13 and 14)”, Application, footnote 7.
31 - Application, para. 9.
32 - Application, para. 10.
33 - Petkovic Response, para. 31.
34 - See the Confidential Amended Annex, with reference to paragraphs 66, 130 (2x), 138, 139 and 177.
35 - Application, para. 11. An overview of these amendments is set out in a confidential attachment to the Application.
36 - In paragraph 130 of the Proposed Amended Indictment, 54 victims became 56; in paragraph 38 of the Proposed Amended Indictment, 13 victims became 15; and in paragraph 139 of the Proposed Amended Indictment, 39 victims became 38.
37 - Application, paras 12-13.
38 - Application, paras 14-15.
39 - Application, para. 15.
40 - Application, para. 15. The Prosecution explains further that “the changes do not substantially change the roles of the Accused as members of the joint criminal enterprise because under the original Paragraph 16 and in the proposed Paragraph 16 and Paragraph 16.1, each of the accused is a member of the joint criminal enterprise”, Application, para. 15.
41 - Stojic Response, para. 14.
42 - Petkovic Response, para. 30.ii.
43 - Application, para. 14.
44 - See, e.g., paragraphs 27, 37, 45, 67, 114, 150, 151, 159,160, 168, 183, 184, 188, 196 and 200 of the Indictment, Application, footnote 11.
45 - Application, para. 14.
46 - Praljak Response, paras 12-19, Prlic Response, paras 9-16, Stojic Response, paras 14-17, Petkovic Response, para. 31.
47 - Praljak Response, para. 14.
48 - Stojic Response, para. 17.
49 - Praljak Response, paras 18-19, Prlic Response, paras 10-16. See also Stojic Response, para. 18.
50 - Application, para. 16. In particular, additional language has been added to the second half of Paragraph 218, in light of Tribunal jurisprudence dealing with indirect perpetration through structures of power controlled and used by the accused. Again, the Prosecution believes or intended that this form of responsibility was covered in the original Paragraph 222 (in connection with such words as “indirect perpetrator”, Application, para. 17.
51 - Application, para. 16-19.
52 - Petkovic Response, para. 30.
53 - The Proposed Amended paragraph 220 states that “In addition or in the alternative, each accused is charged with and criminally responsible for each crime which he substantially aided and abetted, in its planning, preparation or execution, pursuant to Article 7(1). Each accused acted with the knowledge that the acts performed or omitted would assist the commission of the crime or was aware of the substantial likelihood that his acts would assist the commission of the crime. In aiding and abetting such crimes, each accused acted with the requisite state of mind and intent, and other perpetrators, including those who physically committed the crime, also acted with or shared, to the extent necessary, the requite state of mind”.
54 - This paragraph states now that “In addition or in the alternative, as to any crime charged in this indictment which was not within the objective or an intended part of the joint criminal enterprise, such crime was the natural and foreseeable consequence of the joint criminal enterprise and of implementing or attempting to implement the enterprise and each accused was aware of the risk of such crime or [possible:deleted] consequence and, despite this awareness, willingly took that risk in joining and/or continuing ?joined and continued: deletedg in the enterprise and is therefore responsible for the crime charged.” 
55 - Petkovic Response, paras 7-12, Praljak Response, paras 7-11, Prlic Response, paras 4-8,Stojic Response, para. 12.
56 - Petkovic Response, paras 7, 13, Praljak Response, para. 6, Prlic Response, para. 3, Stojic Response, para. 11.
57 - Praljak Response, para. 5, Prlic Response, para. 2, Stojic Response, para. 10.
58 - Praljak Response, para. 16, see also Stojic Response, para. 13.
59 - Petkovic Response, para. 32.
60 - Stojic Response, para. 10.
61 - Praljak Response, para. 5 and footnote 11.
62 - Prlic Response, para. 2.
63 - Praljak Response, para. 16, see also Stojic Response, para. 13.
64 - Petkovic Response, para. 32.