Judicial Supplement 5 - The Prosecutor v. Milorad Krnojelac

The Prosecutor v. Milorad Krnojelac (Case No. IT-97-25-PT)

"Decision on Prosecutor’s Response to Decision of 24 February 1999"

20 May 1999
Trial Chamber II (Judges Hunt [Presiding], Cassese and Mumba)

Rules 15, 50, 72 - status of an indictment amended on direction or with leave of the Trial Chamber.

Where, prior to the commencement of the trial, the Prosecution has amended defects in the indictment either with the leave or at the direction of a Trial Chamber pursuant to Rule 72 of the Rules of Procedure and Evidence, it is neither required by Sub-rule 50(A)(ii) to apply to the confirming Judge for leave nor to have the indictment reviewed.

Where, however, the amendments go beyond what was permitted or directed and also go on to add new charges against the accused, the Prosecution is required to apply to the confirming Judge for leave to amend and to have the amended indictment reviewed by that Judge.

Where the count against the accused is pleaded only in terms of the Statute, leaving it to the material facts pleaded in respect of that count to reveal the specific details which are required, and where the indictment is amended by inserting entirely new factual allegations, those amendments may amount effectively to new charges notwithstanding that the count remains the same.

Unless the issue is raised by the Trial Chamber proprio motu, it is not its function to approve of the form of an amended indictment unless and until there is some complaint by the accused that the form of the indictment is defective.

On 23 April 1999, the Prosecution filed a response (hereinafter "the Response") to the Trial Chamber’s Decision on the Defence Preliminary Motion on the Form of the Indictment of 24 February 1999. In the Response, the Prosecution sought to explain amendments made to the indictment, submitting inter alia that the amended indictment complies with the Trial Chamber’s Decision. As a preliminary point, the Trial Chamber held it inappropriate for a party to file a response to a Trial Chamber decision unless one is expressly sought by that decision. Where a party seeks advice from the Trial Chamber on the procedure to be followed, it should file a motion to which the other party may respond.

The Decision

The Trial Chamber noted that the practice of the Tribunal regarding the relief granted to the Prosecution to amend an indictment has not been consistent. It held, however, that there is no difference in substance between granting leave to the Prosecution or ordering or directing it to amend an indictment. Common sense would seem to dictate that this should be the same in the case of a Trial Chamber’s invitation. If the changes do not go beyond what was permitted or ordered by the Trial Chamber and if no new charges have been added, a review of the indictment would serve no useful purpose. A review by the Trial Chamber would also be unpractical because the Judges would automatically be disqualified pursuant to Rule 15.

If the amendments go beyond what was permitted or directed, the Trial Chamber is not competent to grant leave to the Prosecution to make them. The Rules of Procedure and Evidence clearly distinguish between the functions of a reviewing and confirming Judge and a Trial Chamber. Pursuant to Sub-rule 47(E), an indictment must be submitted to a Judge for review who shall confirm it if satisfied that a prima facie case exists. After the ex parte review, pursuant to Sub-rule 15(C), that Judge is ineligible to sit as a member of the Trial Chamber hearing the accused’s case. Where evidence has already been presented to the Trial Chamber, however, the Trial Chamber is in the best position to consider granting leave to amend the indictment, as provided in Sub-rule 50(A)(iii). The contamination spreading from the ex parte confirmation procedure is effectively limited since the review takes place inter partes and in open session during which both parties must be heard.

The Trial Chamber recalled that, pursuant to Sub-rule 50(B), the accused must be given the opportunity to enter a new plea on any new charges.

The Trial Chamber did not consider whether the amendments in the case in point complied with its directions. However, the Prosecution’s Response suggested that new charges may have been added although no new counts had been. In some cases the Trial Chamber considered it at least arguable that new factual situations were inserted in support of existing counts, either in substitution or in addition to the original factual allegations.

The Trial Chamber held that the Prosecution’s assumption that it may obtain the Trial Chamber’s approval of the amendment is incorrect. Instead, the Trial Chamber granted leave to the Prosecution to file the amended indictment within seven days of the present Decision should it determine that no new charges had been included. Where the Prosecution accepted that new charges had been included in the indictment, the Trial Chamber granted leave to apply for a variation of the time-limit within which to file the amended indictment to allow an application to the confirming Judge or to any other Judge assigned by the President.1 The accused was granted leave, pursuant to Rule 72, to file a preliminary motion complaining of any defects within thirty days of the filing of the amended indictment.

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1. On 17 June 1999, the Prosecution withdrew the previously filed amended indictment and applied for a variation of the time-limit to submit a new amended indictment for confirmation.