Judicial Supplement 23 - The Prosecutor v. Mladen naletilic and Vinko Martinovic

The Prosecutor v. Mladen Naletilic and Vinko Martinovic - Case No. IT-98-34-PT

"Decisions on Vinko Martinovic's Objection to the Amended Indictment and Mladen Naletilic's Preliminary Motion to the Amended Indictment"

14 February 2001
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)

Rule 50 of the Rules of Procedure and Evidence - Decision to allow an amendment - Discretion - Test to be applied.

(1) Pursuant to Rule 50 of the Rules of Procedure and Evidence, the discretion as to whether to allow an amendment is left to the Judge or Trial Chamber.
(2) When contemplating that the accused may require additional time to prepare for trial as a result of an amendment adding a further count, Rule 50(C) merely deals with ensuring that the accused is not prejudiced in the conduct of his or her defence.
(3) The test to be applied to determine if an amendment to an indictment will be accepted is whether it can be shown that the accused has suffered prejudice.

Procedural Background

On 18 December 1998, the Prosecutor filed the original Indictment against Vinko Martinovic and Mladen Naletilic, Count 5 of which referred only to Articles 49 and 50 of Geneva Convention III, and Article 51 of Geneva Convention IV.
On 28 November 2000, the Trial Chamber issued the Decision on Prosecution Motion to Amend Count 5 of the Indictment1, in which the Judges granted leave to the Prosecution to amend Count 5 of the original Indictment by adding a further charge under Article 52 of Geneva Convention III, which deals with dangerous or humiliating labour.
Accordingly, on 4 December 2000, the Prosecutor filed an amended Indictment and on 7 December 2000, each accused pleaded "not guilty" to the new charge.
On 27 December 2000 and 3 January 2001, Vinko Martinovic and Mladen Naletilic objected to the Amended Indictment and submitted that, unless it is advantageous for the accused, an Indictment cannot be amended without new factual allegations or new evidence. They added that the quantity of criminal charges facing the accused cannot be increased at this late stage of the proceedings. Vinko Martinovic and Mladen Naletilic further argued that the criminal laws of the former Yugoslavia, as well as those of Bosnia and Herzegovina and the Republic of Croatia, allow an amendment of the indictment only to include a new offence if supported by new evidence adduced in the course of the proceedings. They also submitted that the accused cannot properly his defence prepare if the indictment is subject to amendment at any moment.
On 18 January 2001, the Prosecutor responded that even before the above-mentioned Decision Vinko Martinovic and Mladen Naletilic had already raised the same objections and that Trial Chamber I had already replied to their submissions.

The Decision

The Trial Chamber rejected the objections of Vinko Martinovic and Mladen Naletilic.

The Reasoning

Trial Chamber I first considered that "discretion as to whether to allow an amendment is left to the Judge or Trial Chamber", pursuant to Rule 50 of the Rules of Procedure and Evidence2.

The Trial Chamber noted that there is nothing in the Rules to suggest that an indictment can be amended only if new factual allegations are added. Furthermore, while Rule 50(B) and (C) expressly addresses the issue of new charges3, the Rule does not specify that new charges must be based solely on new facts. When contemplating that the accused may require additional time to prepare for trial as a result of an amendment adding a further count, the rule merely deals with ensuring that the accused is not prejudiced in the conduct of his or her defence. Although there are no express limits in Rule 50 on the exercise of discretion, when viewing the Statute and Rules as a whole, it is obvious that such discretion must be exercised with regard to the accused's right to a fair trial.
Consequently, the Trial Chamber stated that the question to be decided was "whether the amendment results in any prejudice to the accused."

In determining this issue, "the circumstances of the case as a whole" must be borne in mind.

The Trial Chamber reviewed the principles governing the amendment of indictments in common and civil law States, including Yugoslavia and Bosnia and Herzegovina, and found that most of those surveyed recognise that the fundamental point of reference is whether the accused has suffered any prejudice.

The Trial Chamber also reviewed the case-law of the Tribunal4 and the International Criminal Tribunal for Rwanda5 on the exercise of the discretion set out in Rule 50 and held that the case-law demonstrates that a decision to accept an amendment will ordinarily be granted unless prejudice to the accused can be shown.

The Trial Chamber applied the test laid down and found that "the accused have failed to establish that they have been prejudiced in the preparation of their defence" by the amendment to Count 5.

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1. Summarised and analysed in Judicial Supplement No. 20.
2. "(A) (i) The Prosecutor may amend an indictment:

(a) at any time before its confirmation, without leave;
(b) between its confirmation and the assignment of the case to a Trial Chamber, with the leave of the Judge who confirmed the indictment, or a Judge assigned by the President; and
(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.

(ii) After the assignment of the case to a Trial Chamber it shall not be necessary for the amended indictment to be confirmed.
(iii) 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."
3. On the definition of the notion of a "new charge", see The Prosecutor v. Vinko Martinovic and Mladen Naletilic ("Stela" and "Tuta"), Case No. IT-98-34-PT, Trial Chamber I, Decision on Prosecution Motion to Amend Count 5 of the Indictment, 28 November 2000 (summarised and analysed in Judicial Supplement No. 20); see also The Prosecutor v. Milorad Krnojelac ("Foca - KP-Dom Camp"), Case No. IT-97-25-PT, Trial Chamber II, Decision on Prosecutor's Response to Decision of 24 February 1999, 20 May 1999 (summarised in Judicial Supplement No. 5).
4. The Prosecutor v. Milan Kovacevic, Case No. IT-97-24-AR73, Appeals Chamber, Decision Stating Reasons for Appeals Chamber's Order of 29 May 1998, 2 July 1998; Trial Chamber, Decision on Prosecutor's Request to File an Amended Indictment, 5 March 1998; The Prosecutor v. Radislav Krstic ("Srebrenica"), Case No. IT-98-33-PT.
5. The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Trial Chamber I, Decision on the Prosecutor's Request for Leave to Amend the Indictment, 6 May 1999; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case No. ICTR-97-34-I/ICTR-97-30-I, Trial Chamber III, Decision on the Prosecutor's Motion to Amend the Indictment, 8 October 1999; The Prosecutor v. Eliezer Niyitegeka, Case No. ICTR-96-14-I, Trial Chamber II, Decision on Prosecutor's Request for Leave to File an Amendment Indictment, 21 June 2000.