"Decision on Application by Defence for Leave to Appeal"

30 November 2001
Judges David Hunt (Presiding), Mehmet Güney and Theodor Meron

Procedural Background

• On 10 October 2001, the Prosecution filed two "revised" schedules to the indictment of 26 March 1999 which were described as "alterations" made to the two schedules to the indictment.

• In response to the filing of the revised schedules, on 12 October 2001, Stanislav Galic filed a Request for Indicating that the First and Second Schedules to the Indictment dated 10th October 2001 Should be Considered as the Amended Indictment. The accused requested Trial Chamber I to rule that the filing constituted an amendment to the indictment and that the amendment had not been authorised. Stanislav Galic argued that the schedules were an integral part of the indictment, that the alterations constituted "new accusations" and that leave to amend was required.

• On 19 October 2001, the Trial Chamber rendered its Decision in which it either permitted or accepted the "alterations" made to the two schedules. The Trial Chamber drew a distinction between the alteration of a material fact pleaded in the indictment (which constitutes an amendment to the indictment) and the addition or alteration of evidence stated in the indictment (which does not constitute an amendment).

• On 24 October 2001, Stanislav Galic filed the Defence's Request to File an Appeal pursuant to Rule 72(B)(ii) of the Rules of Procedure and Evidence1.
  

The Decision

The Bench refused the application for leave to appeal.

The Reasoning

The Bench pointed out that whatever the nature of the alteration made, it would "necessarily be an amendment to the indictment itself" and that "[t]he distinction drawn by the Trial Chamber was incorrect." It noted that it was "unnecessary for all of the details given in the two schedules to be pleaded as material facts." However, the Bench considered that an indictment pleaded in the very general terms in the body thereof without at least some of the details given in the two schedules would not have given adequate notice to Stanislav Galic of the nature of the case that he had to meet. It also noted that the material facts could only be found in the two schedules and that the "material facts were altered." The Bench referred to the Decision on Preliminary Motion on Form of Amended Indictment rendered by Trial Chamber II on 11 February 2000 in the case The Prosecutor v. Milorad Krnojelac2 and did not doubt that "schedules to an indictment form an integral part" thereof. It concluded that the ruling by the Trial Chamber that the alterations to the "schedules were not amendments because they were not made to material facts was therefore incorrect in any event."

The Bench considered that the error on the distinction drawn between material facts and other facts in determining whether an alteration to the indictment constituted an amendment thereto was "a matter of any consequence" to the general case-law of the Tribunal. However, the Bench was not satisfied that the error made was "of such importance to proceedings before the Tribunal or in international law generally as to warrant its further consideration by five judges of the Appeals Chamber."

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1. "Decisions on preliminary motions are without interlocutory appeal save […] in […] cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber."
2. The Prosecutor v. Milorad Krnojelac ("Foca-KP Dom Camp"), Case No. IT-95-25-PT, Trial Chamber II, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (summarised in Judicial Supplement No. 12).