Case No. IT-04-74-PT

BEFORE THE TRIAL CHAMBER

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

Registrar:
Mr. Hans Holthuis

Decision of:
3 November 2005

PROSECUTOR

v.

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

________________________________________________

DECISION ON MILIVOJ PETKOVIC’S APPLICATION FOR CERTIFICATION TO APPEAL DECISION ON MOTION FOR LEAVE TO AMEND THE INDICTMENT AND FORM OF PROPOSED AMENDED INDICTMENT

________________________________________________

The Office of the Prosecutor:

Mr. Kenneth Scott
Mr. Daryl Mundis

Counsel for the Accused:

Mr Michael Karnavas for the accused Mr. Jadranko Prlic
Mr Tomislav Kuzmanovic for the accused Mr. Bruno Stojic
Mr Slobodan Praljak representing himself in person
Ms Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr Tomislav Jonjic for the accused Mr. Valentin Coric
Mr Fahrudin Ibrisimovic for the accused Mr. Berislav Pusic

 

TRIAL CHAMBER I (“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”);

BEING SEISED of the “Motion of the Defence for the Accused Petkovic for Certification to Appeal the Trial Chamber’s Decision on Prosecution’s Application for Leave to Amend the Indictment and of Defence Complaints on Form of the Indictment”, (“Application ”) filed on 25 October 2005 by the Defence for the accused Milivoj Petkovic (“Defence ” and “Accused”, respectively) in accordance with Rule 73 of the Rules of Procedure and Evidence (“Rules”);

NOTING the “Prosecution’s Response to the Motion of the Defence for Certification of the Trial Chamber’s Decision on the Prosecution’s Application for Leave to Amend the Indictment and of Defence Complaints on Form of Proposed Amended Indictment Filed on 25 October 2005” dated 28 October 2005, whereby the Prosecution submits that the Application is without merits (“Response”);

NOTING that on 1 November 2005 the Defence filed the “Reply of the Defence of the Accused Petkovic to the Prosecution’s Response to the Motion of the Defence for Certification to Appeal the Trial Chamber’s Decision on the Prosecution’s Application for Leave to Amend the Indictment and of Defence Complaints on Form of Proposed Amended Indictment Filed on 25 October 2005” (“Reply”);

CONSIDERING that the Petkovic Defence has not filed the Reply with the leave of the Chamber in accordance with Rule 126 bis; that therefore the Reply is not taken into consideration;

NOTING that Rule 73 of the Rules requires two cumulative criteria to be satisfied for the Chamber to exercise its competence to certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial, and (2) that an immediate resolution of the issue by the Appeals Chamber may materially advance the proceedings;

RECALLING the Chamber’s “Decision on Prosecution Application for Leave to Amend the Indictment and on Defence Complaints on form of Proposed Amended Indictment ” filed on 18 October 2005 (“Impugned Decision”);

NOTING that the Defence submits in support of its Application that the Chamber erred in law and in fact because:

(a) it found that the proposed amendment to paragraphs 60, 150, 151, 153 and 159 of the Indictment are not new charges but clarifications,

(b) it found that “indirect perpetration, as a specific mode of commission of crimes and specific form of liability, was already included in the Indictment,

(c) it found that the Defence “challenged the form of the proposed amendments in its respective submissions”, and

(d) it did not dispose properly and in a timely fashion of the Petkovic Urgent Motion for Clarification;1

CONSIDERING that the Defence alleges that the Chamber erred when discussing those four issues and that an immediate resolution of these issues which significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial may materially advance the proceedings;2

NOTING that the Prosecution responds that:

(a) the amendments to various paragraphs in the Proposed Amended Indictment do not amount to new charges because the amendments introduced in paragraphs 60 and 153 merely correct oversights in cross-referencing of paragraph 229 of the Indictment to the sections of the Indictment titled “Prozor” and “Ljubuski Municipality and Detention Centers” and the existing allegations in paragraphs 151 and 159 entailed charges under counts 1, 6-11, 15-17;3

(b) the Defence’s argument that indirect perpetration was only mentioned two times in paragraphs 221 and 222 of the original indictment is both weak and spurious because these mentions were sufficient to place the Accused on notice regarding the fact that they would be held responsible as indirect perpetrators, and this concept is not novel as indirect participation has been acknowledged from the very first case before the Tribunal, the Tadic case, in which the Trial Chamber stated that “(a) n interpretation of the Statute based on its object and purpose leads to conclusion that the Statute intends to extend the jurisdiction of the International Tribunal to all those “responsible for serious violations of international humanitarian law " committed in the former Yugoslavia (Article 1),4

(c) the Defence's assertion that it had not challenged the form of the proposed amendments in its respective submissions has not been substantiated adequately and should be rejected,5

(d) the Trial Chamber dealt with the Urgent Motion in paragraphs 7 and 8 of the Impugned Decision “advancing specific and clear reasons for its findings” and this was both adequate and timely,6

(e) the fact that the Defence disagrees with the outcome of the Trial Chamber’s reasoning in the Impugned Decision does not alter the fact that the Chamber did not err in fact and law and the Defence has not shown that the Impugned Decision would cause such prejudice as could not be cured by final disposition of the trial , including post-judgment appeal;7

CONSIDERING that in relation to the Defence’s complaint that the Chamber erred in law and in fact because it found that the proposed amendment to paragraphs 60, 150, 151, 153 and 159 of the Indictment are not new charges but clarifications , the Chamber recalls that it applied a test to determine whether the proposed amendments are new charges or clarifications;8 that the Defence does not explain how the Chamber erred in applying this test in relation to paragraphs 60, 150, 151, 153 and 159 of the Proposed Amended Indictment ;

CONSIDERING that in relation to the Defence’s complaint that the Chamber erred by finding that “indirect perpetration”, as a specific mode of commission of crimes, was already included in the Indictment, the Chamber notes that the Impugned Decision determines that the notion of indirect perpetration was already alleged in the original Indictment;9 that this fact is acknowledged by the Defence which states that the “term “indirect perpetrator ” appeared two times in paragraphs 221 and 222 of the original indictment; that furthermore the Defence acknowledges that the concept of “indirect perpetration” was not challenged by the Defence in its motion challenging jurisdiction of the Tribunal and explains that it was so because the concept appeared innocuous in the original indictment;10 that the Chamber finds that the Defence may not use the Application to tardily challenge the Tribunal’s jurisdiction over this form of liability, which – the Chamber insists - was already included in the original indictment;

CONSIDERING furthermore that in relation to the addition of the words “indirect perpetration” in the Proposed Amended Indictment, the Defence argues that the Chamber applied the wrong “criterion” when determining whether new charges were brought against the Accused; that one of the “criterion” preferred by the Defence is one among others mentioned in an ICTR decision which determines that a fact is material when it converts unintelligible vague pleadings into an intelligible factual allegation ;11 that such “criterion” is not taken into consideration by Chambers of this Tribunal; that however there is no need in the instant case to determine whether there is a contradiction which needs to be resolved by the Appeals Chamber since it is not claimed now nor was there a complaint made at an earlier stage of the proceedings that the reference to “indirect perpetration ” in the original indictment was “unintelligible” so that the amendments proposed to be made converted “vague pleadings into an intelligible factual allegation”;

CONSIDERING finally in relation to the issue of “indirect perpetration” that an immediate resolution of this issue by the Appeals Chamber may not materially advance the proceedings since the original Indictment which presents a wide range of modes of liability charged cumulatively and alternatively already pleads the facts - which the Defence claims are new charges rather than clarifications - underlying the charges; that under the original Indictment the parties would have had to fully address the factual details of the role, if any, the Accused played in respect of the crimes charged in a way similar to what the parties have to do now under the amended Indictment;12

CONSIDERING that in relation to the Defence’s complaint that the Chamber found that the Defence “challenged the form of the proposed amendments in its respective submissions”, paragraphs 65 and following of the Impugned Decision address complaints concerning the form of the amendments proposed to be made by the Prosecution; that sub-paragraphs (B) and (C) of Rule 50 provide that if the amended indictment includes new charges, a further appearance shall be held and 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; that when the amended indictment does not include new charges - as the Chamber determined in this case - the accused may not file a motion alleging defects in the form of the amended indictment;

CONSIDERING that furthermore the Defence’s argument that it did not wish to make complaints on the form of the proposed amended indictment at this stage of the proceedings is contradicted by the content of its submission concerning the proposed amended indictment where complaints on the form of the proposed amendments are being made; that the Defence’s affirmation that it did not wish to have the Chamber decide on the form of the proposed amended indictment at this stage but only after leave to amend the indictment was granted may be seen as going against the interests of an expeditious trial; that the Chamber addressed the arguments raised by the Defence in relation to the form of the amendments made by the Prosecution in fairness to the accused in this case; that responding to the Defence’s arguments at this stage of the proceedings was therefore not prejudicial to the Accused;

CONSIDERING that the Defence complains that the Chamber did not dispose properly and timely of the Petkovic Urgent Motion for Clarification filed on 10 October 2005 (“Urgent Motion”) and that it did and still does consider the information requested in that Urgent Motion essential; that the Defence was entitled to be provided with the guidance it requested before the filing of comments on the newly disclosed supporting material; that however the Impugned Decision addresses the issues raised in the Urgent Motion and explains why the Urgent Motion does not raise substantial issues ;13 that the Chamber cannot see how the Defence is being prejudiced in such a way that could not be cured by final disposition of the trial, including post-judgment appeal, in view of the reasons provided by the Chamber in the Impugned Decision;

FINDING that the Defence has failed to establish that the two criteria for granting certification are met;

PURSUANT to Rule 73 of the Rules;

HEREBY DENIES the Application.

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

Dated this 3rd Day of November 2005,
At The Hague
The Netherlands

_______________________
Judge Liu Daqun
Presiding Judge, Trial Chamber I

[Seal of the Tribunal]


1 - Application, para. 11.
2 - Application, paras 23-35.
3 - Response, paras 7-12.
4 - Response, paras 13-17.
5 - Response, para. 18.
6 - Response, para. 19.
7 - Response, paras 20-25.
8 - See Impugned Decision, para. 13.
9 - Impugned Decision, para. 38.
10 - Application, para. 16.
11 - The Defence incorrectly states in the Application that such criterion is to be found in Prosecutor v Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000. The Defence refers to this “criterion” for the first time in its Addendum filed on 17 October 2005, and provides there the correct reference: Prosecutor v Muvunyi, Case No. ICTR-2000-55A-PT, Decision on the Prosecutor’s Motion for Leave to File an Amended Indictment, 23 February 2005, para. 39. The Addendum hence argues substantive legal issues.
12 - The parties would have to examine not only the positions the Accused held, but also such aspects as (lines of) communication with co-accused or others allegedly involved in the commission of the crimes, their interactions, the acts of those who were physically committing the crimes and various other aspects.
13 - Impugned Decision, paras 7-9.