"Decision on Review of Indictment"

22 November 2001
Judge Richard May

Procedural Background

On 12 November 2001, the Prosecutor presented an indictment which was submitted to Judge Richard May for review under Article 19 of the Statute1 and Rule 47 of the Rules2.

The Decision

Judge Richard May confirmed the 29 counts in the Indictment.

The Reasoning

Judge May interpreted the purpose of Article 19 of the Statute and Rule 47 as being "to determine whether there is a fit case to justify the commencement of proceedings against the accused on the Indictment and to ensure that there is material to support the allegations in it, thus preventing the commencement of proceedings for which there is no support."3 The Judge referred to the Decision on the Review of the Indictment rendered by Judge Gabrielle Kirk McDonald on 10 November 1995 in The Prosecutor v. Dario Kordic et al.4 and to the Kosovo Decision in which both Judges compared the task of the confirming judge with the function of a grand jury or a committing magistrate in the common law systems and to an investigating or examining magistrate (juge d'instruction) in some civil law systems helping to ensure that the Prosecution will not be frivolous or wilful.

Judge May reiterated that the test to be applied in determining whether a prima facie case5 was established had been the subject of decisions by reviewing Judges of the Tribunal. He specified that "in the leading case on this topic […], Judge Kirk McDonald adopted the test formulated by the International Law Commission in its Draft Statute for an International Criminal Court", i.e. "a prima facie case for this purpose is understood to be a credible case which would (if not contradicted by the Defence) be a sufficient basis to convict the accused on the charge."6 Judge May also reiterated that "[t]his test was followed by Judge Hunt […] albeit slightly re-formulated; to the effect that '[a] prima facie case exists in this situation where the material facts pleaded in the indictment constitute a credible case which would (if not contradicted by the accused) be a sufficient basis to convict him of that charge.'7"

When determining whether to grant leave to the Prosecutor to amend the same Indictment, Judge Hunt commented that there had "been considerable investigation of what constitutes a prima facie case" since the earlier Decision and that the definition was then "differently expressed" although its substance was the same, i.e. "whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question."8 In the instant case, Judge May however considered that this formulation was "based on the test to be applied in determining a motion under Rule 98 bis for judgement for acquittal after the close of the Prosecution case, a later stage of the proceedings than the present review."9 The reviewing Judge noted that "both formulations contain the essential concept that the Prosecutor must provide sufficient evidence which, if it is accepted, would be sufficient for a conviction of the accused."10

Accordingly, Judge May adopted "the test for review as formulated by Judge Kirk McDonald as the more appropriate for this stage of the proceedings." He nevertheless added a caveat, i.e. that the case must be based on evidence which if "accepted by a Trial Chamber, would be a sufficient basis for conviction." The confirming Judge therefore defined a prima facie case as "a credible case which, if accepted and uncontradicted, would be a sufficient basis on which to convict the accused."

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1. "1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial."
2. "(A) An indictment, submitted in accordance with the following procedure, shall be reviewed by a Judge designated in accordance with Rule 28 for this purpose.
(B) The Prosecutor, if satisfied in the course of an investigation that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal, shall prepare and forward to the Registrar an indictment for confirmation by a Judge, together with supporting material.
(C) The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.
(D) The Registrar shall forward the indictment and accompanying material to the designated Judge, who will inform the Prosecutor of the date fixed for review of the indictment.
(E) The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 19, paragraph 1, of the Statute, whether a case exists against the suspect.
(F) The reviewing Judge may:

(i) request the Prosecutor to present additional material in support of any or all counts, or to take any further measures which appear appropriate;
(ii) confirm each count;
(iii) dismiss each count; or
(iv) adjourn the review so as to give the Prosecutor the opportunity to modify the indictment.

(G) The indictment as confirmed by the Judge shall be retained by the Registrar, who shall prepare certified copies bearing the seal of the Tribunal. If the accused does not understand either of the official languages of the Tribunal and if the language understood is known to the Registrar, a translation of the indictment in that language shall also be prepared, and shall be included as part of each certified copy of the indictment.
(H) Upon confirmation of any or all counts in the indictment,

(i) the Judge may issue an arrest warrant, in accordance with Sub-rule 55(A), and any orders as provided in Article 19 of the Statute, and
(ii) the suspect shall have the status of an accused.

(I) The dismissal of a count in an indictment shall not preclude the Prosecutor from subsequently bringing an amended indictment based on the acts underlying that count if supported by additional evidence."
3. See also The Prosecutor v. Slobodan Milosevic et al. ("Kosovo"), Case No. IT-99-37-I, Judge David Hunt, Decision on Review of Indictment and Application for Consequential Orders, 24 May 1999 (hereinafter the "Kosovo Decision"), in which the confirming Judge stated that the purpose of Rule 47(E) was "to ensure that there is evidence to support the material facts pleaded in the indictment" and "not to permit the supporting material to fill in any gaps which may exist in the material facts pleaded in the indictment" (para. 2). Judge Hunt further considered that the joint operation of Article 19 of the Statute and Rule 47(E) was that the reviewing judge "must be satisfied that the material facts pleaded in the indictment establish a prima facie case and that there is evidence available which supports those material facts" (para. 3).
4. The Prosecutor v. Dario Kordic et al. ("Lasva River Valley"), Case No. IT-95-14-I, Judge Gabrielle Kirk McDonald, Decision on the Review of the Indictment, 10 November 1995 (hereinafter the "Kordic et al. Decision").
5. See The Prosecutor v. Ivica Rajic ("Stupni Do"), Case No. IT-95-12-I, Judge Rustam Sidhwa, Review of the Indictment, 29 August 1995, in which the confirming Judge commented that "[i]n Latin the expression 'prima facie' means at first sight, or on the face of it, or on first impression." However, Judge Sidhwa considered that "the extended expression 'prima facie case' means the assessment of the case by way of first impression" (page 2) The Judge stated that "the expression 'prima facie case' carries no universal meaning" (page 8).
6. Kordic et al. Decision, page 3.
7. Kosovo Decision, para. 4.
8. The Prosecutor v. Slobodan Milosevic ("Kosovo"), Case No. IT-99-37-I, Judge David Hunt, Decision on Application to Amend Indictment and on Confirmation of Amended Indictment, 29 June 2001 (hereinafter the "Second Kosovo Decision"), para. 3. See also The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (summarised in Judicial Supplement No. 18), para. 3; The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), para. 434; The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (summarised in Judicial Supplement No. 26), para. 36.
9. See also The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber III, Decision on Defence Motions for Judgement of Acquittal, 6 April 2000 (summarised in Judicial Supplement No. 14); The Prosecutor v. Miroslav Kvocka et al. ("Omarska, Keraterm & Trnopolje Camps"), Case No. IT-98-30/1-T, Trial Chamber I, Decision on Defence Motions for Acquittal, 15 December 2000 (summarised in Judicial Supplement No. 21); The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III, Judgement on Defence Motions to Acquit, 3 September 2001 (summarised in Judicial Supplement No. 27); The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Trial Chamber III, Decision, 27 September 2001, paras. 14 and 15.
10. See the Kordic et al. Decision, in which Judge Kirk McDonald considered that "the Judge should make an assessment of whether, from the face of the indictment, it is alleged that the accused committed acts which, if proven beyond a reasonable ground, are crimes as charged and are within the subject matter jurisdiction" of the Tribunal (page 3); The Prosecutor v. Milorad Krnojelac ("Foca-KP Dom-Camp"), Case No. IT-97-25, Trial Chamber II, Decision on Prosecutor's Response to Decision of 24 February 1999, 20 May 1999, in which the Trial Chamber "noted that the confirming judge does not determine the validity of the form of the indictment" (footnote 11); Kosovo Decision, in which Judge Hunt considered that the structure of the Rules "makes it clear that the confirming judge is concerned only with the substance of the indictment, and not with its form" (para. 3); Second Kosovo Decision, para. 6.