"Decision on Preliminary Motion on Form of Amended Indictment"

11 February 2000
Trial Chamber II (Judges Hunt [Presiding], Mumba and Pocar)

Pleading

When considering the content of an indictment and more specifically the extent of particulars needed, one must draw a distinction between the material facts upon which the Prosecution relies (which must be pleaded) and the evidence by which those material facts will be proved (which need not be pleaded)1.

Whether a particular fact is material depends in turn upon the nature of the case which the Prosecution seeks to make: "The materiality of such things as the identity of the victim, the place and date of the events for which the accused is alleged to be responsible, and the description of the events themselves, necessarily depends upon the alleged proximity of the accused to those events"2.

(A) In a case based upon superior responsibility pursuant to Article 7(3), what is most material is:

(i) the relationship between the accused and the others who did the acts for which he is alleged to be responsible; and
(ii) the conduct of the accused by which he may be found (a) to have known or had reason to know that the acts were about to be done, or had been done, by those others, and (b) to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who did them.

However, so far as the acts of the other persons are concerned, although the Prosecution remains under an obligation to give all the particulars it can, "the relevant facts will usually be stated with less precision, and that is because the detail of those acts (by whom and against whom they are done) are often unknown - and because the acts themselves often cannot be greatly in issue"3.

(B) The second situation covers the "aiding and abetting" type of responsibility, namely in cases where it is not alleged that the accused personally did the acts for which he is to be held responsible4. Again, pursuant to Article 7(1), what is most material in such a situation is the conduct of the accused by which he may be found to have planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of those acts. However, the Trial Chamber held that more precision is required in relation to the material facts relating to those acts of other persons than is required for an allegation of superior responsibility. "In those circumstances, what the accused needs to know as to the case he has to meet is not only what is alleged to have been his own conduct but also what are alleged to have been the acts for which he is to be held responsible, subject of course to the prosecution’s ability to provide such particulars. But the precision required in relation to those acts is not as great as where the accused is alleged to have personally done the acts in question"5.

(C) Finally, in a case where it is alleged that the accused personally did the acts in question6, the material facts must be stated with the greatest precision: "the information pleaded as material facts must, so far as it is possible to do so, include the identity of the victim, the place and the approximate date of those acts and the means by which the offence was committed"7.

When pleading a case that alleges that the accused is individually responsible because he personally committed the acts which constitute the crime - which falls within situation (C) - the Trial Chamber made it clear that it is not sufficient for the Prosecution to allege merely a course of conduct on the part of the accused8. Such a course of conduct may be relevant to a case which alleges superior responsibility on the part of the accused for those acts - which falls within situation (A) - and to some extent to a case which alleges individual responsibility because the accused aided and abetted in those acts - which falls within situation (B).

Finally, as stated by the Trial Chamber, the Prosecution "cannot be obliged to perform the impossible"9. "Where appropriate, the prosecution must, of course, make it clear that it has provided the best particulars it can. An inability to provide better particulars will inevitably reduce the value of the evidence of the witnesses who are unable to be more specific, but it does not affect the form of the indictment"10.

The form of pleading adopted by the Prosecution in this case is to plead in general terms that the accused bears three types of responsibility (superior, aiding and abetting and personal11) and then, in relation to individual counts, to plead facts which imply that, in relation to that particular count, personal liability is not being pursued12.

The Trial Chamber declared that "such a form of pleading is likely to cause ambiguity, as the present case has demonstrated. It would be preferable in future cases that an indictment indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged. This would not be necessary where, for example, the nature of the responsibility alleged is the same in relation to every count but, where the nature of the responsibility differs, it should not be left to the accused (and ultimately to the Trial Chamber in the inevitable preliminary motion) to infer from the absence of any facts which indicate a personal responsibility that no such responsibility is being pursued".

Preliminary motion alleging defect in the form of an amended indictment

The opportunity afforded by Rule 50(C) of the Rules of Procedure and Evidence to file a Preliminary Motion alleging defects in the form of an amended indictment is directed to the material added by way of amendment13. That opportunity may not be used to raise issues in relation to the amended indictment which could have been raised in relation to the original indictment but were not although, in an appropriate case, an extension of time to complain of a particular defect may be granted.

________________________________________
1. The Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 february 1999, para. 15.
2. Para. 18.
3. Para. 18. See also The Prosecutor v. Kvocka, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, para. 17.
4. In such a situation, the accused is placed in greater proximity to the acts of other persons for which he is alleged to be responsible than he is for superior responsibility.
5. Para. 18.
6. Which the Trial Chamber called "personal" responsibility.
7. Para. 18.
8. The Trial Chamber stated that the information to be pleaded must, so far as possible, identify the victim(s), the place and the approximate date of the alleged offence and the means by which it was committed. "Alternatively, the prosecution must either withdraw from the charge of individual responsibility the allegation that the accused personally committed these offences or make it clear in the indictment[…] that the individual responsibility of the accused […] is for the acts of others and not for his own acts otherwise than of an aiding and abetting nature only."(para. 21) See also The Prosecutor v. Dosen and Kolundzija, Decision on Preliminary Motions, 10 February 2000 (summarised in this issue of the Judicial Supplement). See also The Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 and The Prosecutor v. Kunarac et al., Decision on the Form of the Indictment, 4 November 1999 (summarised in Judicial Supplement No. 9). See however The Prosecutor v. Kvocka, Decision on the Defence Preliminary Motions on the Form of the Indictment, 12 April 1999 para. 1: "[the] massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes." Finally, see The Prosecutor v. Martinovic, Decision on Defendant Vinko Martinovic’s Objection to the Indictment, 15 February 2000, paras. 14-19.
9. In that regard, see See The Prosecutor v. Kvocka, Decision on the Defence Preliminary Motions on the Form of the Indictment, 12 April 1999 para. 1: "[the] massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes."
10. Para. 57. See also The Prosecutor v. Kunarac and Kovac, Decision on the Form of the Indictment, 4 November 1999 (summarised in Judicial Supplement No. 9).
11. See above.
12. Para. 60.
13. See paras. 15 and 48.