Judicial Supplement 6 - The Prosecutor v. Dragan Kolundzija

The Prosecutor v. Dragan Kolundzija - Case Nos. IT-95-8-I and IT-98-30-PT

"Decision Rejecting Prosecutor’s Request for Leave to Amend Indictments"

Judge Lal Chand Vohrah
6 July 1999

Rule 48 and Sub-rule 50(A)(ii) - joinder of accused by amendment of indictment

The confirming Judge is not competent to consider in ex parte proceedings a request for joinder of accused by amendment of the indictment.

The accused Dragan Kolundzija and Zoran Zigic were initially included in the "Keraterm" indictment (IT-95-8-I) which was confirmed by Judge Vohrah, whereas Miroslav Kvocka, Mladen Radic, Milojica Kos and Zoran Zigic appeared in the "Omarska" indictment (IT-95-4-I). The charges against the latter five were consolidated into a new indictment (IT-98-30-I) confirmed by Judge Vohrah. After the arrival of Kolundzija at the Tribunal, pursuant to Sub-rule 50(A)(ii) of the Rules of Procedure and Evidence, the Prosecution applied to Judge Vohrah for leave to withdraw the accused from the Keraterm indictment and to join him to the IT-98-30-I indictment.

The Decision

Judge Vohrah considered that, pursuant to Rules 47 and 50, the main function of a reviewing Judge is to consider ex parte whether the Prosecution has established a prima facie case against the accused. Rule 48 does provide for the joinder of accused, but the Rules do not indicate a procedure to follow. The practice of the International Criminal Tribunal for Rwanda requires the Prosecutor to submit a motion to the Trial Chambers in inter partes hearings. Judge Vohrah further considered that the initial appearances of Kvocka, Radic, Kos and Zigic took place over a year ago and that their case is at an advanced pre-trial stage.

Having found that he was not competent to consider the Request in ex parte proceedings pursuant to Sub-rule 50(A), Judge Vohrah rejected the Request.