Judicial Supplement 8 - The Prosecutor v. Radoslav Brdjanin

The Prosecutor v. Radoslav Brdjanin - Case No. IT-99-36-PT

"Decision on Motion to dismiss Indictment"

5 October 1999
Trial Chamber II (Judges Cassese (Presiding), Mumba and Hunt)

Sub-rule 72(A)(i) and Rule 47 of the Rules of Procedure and Evidence; Articles 15, 18(4) and 19 of the Statute - challenge to decision of confirming Judge; whether challenge goes to jurisdiction of the Tribunal; supporting material; confirmation of indictment; prima facie case; whether open to Trial Chamber to review decision of confirming Judge.

1) A mistaken finding that there is a prima facie case against the accused would not be sufficient to establish that the confirming Judge did not properly follow the confirming procedure.
2) Only the indictment needs to disclose a prima facie case. The jurisdiction of the Tribunal depends on whether the indictment has pleaded sufficient material facts to establish a prima facie case against the accused in relation to the charge or charges against him. It does not depend on whether the supporting material provided by the Prosecutor to the confirming Judge supports that charge.
3) There is no provision in the Rules of Procedure and Evidence permitting the Trial Chamber to review the decision of the confirming judge.

The Issue

On 31 August 1999, Radoslav Brdjanin filed a "Motion to Dismiss Indictment" ("Motion") alleging that none of the material presented by the Prosecution to the confirming judge in support of the indictment pursuant to Sub-rule 47(B) provides support for the allegations. The accused submitted that the indictment should therefore be dismissed.

The Decision

In the absence of any basis in the Statute or the Rules of Procedure and Evidence (hereinafter "the Rules") upon which the Trial Chamber could review the decision taken by the confirming Judge, the Trial Chamber dismissed the Motion.

The Reasoning

The accused argued that Judge Rodrigues, the confirming Judge, erred in his finding that the supporting material provided a prima facie case against him and that, as a consequence, the Statute and the Rules "were not properly followed since an indictment was confirmed where there was no supporting evidence in the supporting material."1 The Trial Chamber rejected this argument, since the accused himself failed to produce any evidence that the procedure had not been followed on this occasion. In addition, the Trial Chamber pointed out that, even if the supporting material did not establish a prima facie case, "an error made by the judge in the resulting decision which he made does not establish that he did not properly follow the procedure."2 Form and substance are two different matters.

The accused's second argument was that the Tribunal has jurisdiction to try him on any count in an indictment only when the supporting material supports the existence of that count and that, in his case, evidence was insufficient. This Trial Chamber rejected this argument. It started by emphasising that the jurisdiction of a criminal court to try a particular person upon indictment is traditionally founded upon, and invoked by, the indictment itself which must plead as material facts the fundamental elements of its jurisdiction, namely its competence as to subject-matter, persons, territory and time3.

The accused argued that the Tribunal's Statute and Rules impose requirements over and beyond that traditional threshold. He contended that the material contained in the supporting material must actually support the existence of the counts. The Trial Chamber did not agree with the accused. It stated that, "so far as the Statute itself is concerned, it is only an indictment which needs to disclose a prima facie case"4, and that the insufficiency of the supporting material is irrelevant to the issue of the Tribunal's jurisdiction5.

The Rules do not and could not state anything different6. The supporting material, as referred to in Sub-rule 47(E), must ensure that there is material available to support the facts pleaded in the indictment but may not be used "to fill any gaps which may exist in the material facts so pleaded when determining whether a prima facie case exists in accordance with Article 19.1 of the Statute."7 Whether there is evidence to support any charge pleaded in the indictment is an issue to be determined by the Trial Chamber, at the conclusion of the trial or (if the issue is raised) at the close of the prosecution case8.

The main purpose of the review and confirmation of the indictment is to justify the issuance of an arrest warrant9, not to limit the Tribunal's jurisdiction.

No provision in the Rules of Procedure and Evidence exists which would permit the Trial Chamber to review the decision of the confirming Judge. As pointed out by the Trial Chamber, "care is taken in the Rules to keep the functions of the confirming judge and of the Trial Chamber apart [...] to avoid any contamination spreading from the ex parte nature of the confirming procedure to the Trial Chamber."10

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1. Paragraph 8.
2. Paragraph 8.
3. The principle elements of the ICTY's jurisdiction are set out in Articles 1 to 8 of its Statute.
4. Paragraph 12. See Articles 18.4 and 19.1 of the Statute.
5. Paragraph 20.
6. Paragraph 12: "The Rules cannot themselves alter what is provided by the Statute."
7. Paragraph 13. See also Prosecutor v. Krnojelac Case IT-925-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, par. 15 (summarised in Judicial Supplement No. 2).
8. Paragraph 15.
9. Article 19.2.
10. Paragraphs 21 and 22.