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Office of the Prosecutor:

Mr. Dusan Vucicevic
Mr. Anthony D’Amato

I agree with the decision of the Appeals Chamber but would add some remarks on three points. First, other considerations apart, the Trial Chamber does not appear to have taken the position that the new counts could not be joined to the original count within the meaning of the law relating to joinder of offences. Was the Trial Chamber right in not taking that position? Second, if other objections are set aside, was the prosecution, though in possession of sufficient pre-arraignment material to justify the bringing of an earlier motion to amend, entitled to defer bringing such a motion until it had investigated the possibility of adducing "better or alternative forms of evidence"? Third, was the accused entitled to be "promptly" informed of the additional charges at the time of his arrest?

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As to the first point, concerning joinder of offences, the decision of the Trial Chamber spoke of the size of the amendments, a matter dealt with in today’s Reasons for Decision. Despite its use of phrases suggestive of related difficulties, the Trial Chamber did not take the position that the additional counts could not in law be joined to the count charged in the original indictment. If it meant to take such a position, it would have done so. I would understand it, therefore, to be proceeding on the basis that (other considerations apart) joinder was legally possible. Was it right to do so?

Joinder of offences is of course possible, within limits. Additional charges must bear a reasonable relationship to the matrix of facts involved in the original charge. The test of the relationship is laid down by Rule 49 of the Tribunal's Rules of Procedure and Evidence, which provides that "[t]wo or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the said crimes were committed by the same accused". That language recognises both the convenience to each side of trying several charges together and the injustice which might enure to the accused if he was required to answer unrelated charges at the same time.

What is the result of striking a balance between these two factors? Rule 49 appears to have taken its inspiration from the "same transaction" test used in the federal system of the United States of America. It has been said that under "the 'same transaction' test, it is proper ... to join offenses which are closely related in that they were interrelated parts of a particular criminal episode". (Wayne R. La Fave and Jerold H. Israel, Criminal Procedure, 2nd ed., p. 762). So, the question is whether all of the counts, old and new, represent interrelated parts of a particular criminal episode.

The original count charged the accused with the offence of genocide committed between April 1992 and January 1993 through a number of methods, including military violence directed against people and property. The additional charges relate in substance to the same campaign of destruction, the same people, the same period of time, the same area. All the counts, old and new, concern interrelated parts of a particular criminal episode. It is not necessary for all of the facts to be identical. It is enough if the new charges cannot be alleged but for the facts which give rise to the old. And this, I think, is the case. Had the Trial Chamber thought otherwise, it would have said that the additional counts could not be joined within the meaning of the law relating to joinder of offences. It did not. It was right.

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As to the second point, concerning the timing of the motion to amend, the Trial Chamber correctly understood the prosecution to be saying that it was, from the beginning of the case, in possession of enough material to support the making of the amendments. But I am not persuaded that this meant, as the Trial Chamber thought, that there was no justification for waiting. A prosecutor, though in possession of enough material to file charges, may be justified in holding his hand until the results of further investigations are in.

There is no need to furnish details in support of the proposition, often affirmed, that the investigative problems of the Tribunal are more complex and difficult than those connected with the work of a national criminal court. That circumstance makes it appropriate, in a general way, to recall the words used by the European Commission of Human Rights in connection with questions of time relating to war crimes. After noting that proceedings which had taken more than eleven years had lasted "a very long time", it said:

"[T]he exceptional character of criminal proceedings involving war crimes committed during World War II renders, in the Commission's opinion, inapplicable the principles developed in the case-law of the Commission and the Court of Human Rights in connection with cases involving other criminal offences". [X. v. Federal Republic of Germany, Application/Requete No. 6946/75)76, at pp. 115-116].

Differences with the instant case are obvious, particularly in relation to the fact that the investigations in the cited case had to be conducted long after the event; but that circumstance does not altogether neutralise the point of the remark. In relation to the present matter, the point is understood this way: not that the principles of the case-law are irrelevant, but that the application of the principles has to take account of the peculiarities and difficulties of unearthing and assembling material for war crimes prosecutions conducted in relation to the territories of the former Yugoslavia. The resulting need for reasonable judicial flexibility is apparent.

In this case, as mentioned above, the Trial Chamber correctly concluded that prosecuting counsel accepted that the proposed amendments could have been sought on the basis of available pre-arraignment material. But the Trial Chamber did not reject his statement that the prosecution was also looking for "better or alternative forms of evidence"; the Presiding Judge spoke of the prosecution being earlier in possession of "most of the supporting material...", i.e., not all. What happened was that the Trial Chamber proceeded on the view that, once the prosecution had enough material, it had little or no justification for seeking a later amendment.

But was that correct? The fact that the prosecution has enough material to justify the presentation of charges does not prevent it from waiting until it has investigated further. Additional material could conceivably be to the benefit of the accused. No doubt, national systems vary; but I take the prevailing common law position to be that set out in a 1977 opinion of the United States Supreme Court, delivered by Mr Justice Marshall and reading in parts as follows:

"[T]he Due Process Clause does not permit courts to abort criminal proceedings simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining 'due process', to impose on law enforcement officials our 'personal and private notions' of fairness and to 'disregard the limits that bind judges in their judicial function'. ... Our task is more circumscribed. We are to determine only whether the action complained of - here, compelling respondent to stand trial after the Government delayed indictment to investigate further - violates ... 'fundamental conceptions of justice ...' which define 'the community's sense of fair play and decency'...". (United States v. Lavasco, 431 U.S. 783(1977), at p. 790)."

"It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt...". (Ibid., p. 791).

"In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely 'to gain tactical advantage over the accused', ...precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of 'fair play and decency,' a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of 'orderly expedition' to that of `mere speed'... This the Due Process Clause does not require".(Ibid., p. 795).

Those remarks demand respect both as regards the general question of the extent to which a court should permit itself to disagree with the judgement of a prosecutor as to when he should move, and as regards the particular question of the right of a prosecutor, who has a sufficiency of evidence on which to lay charges, to defer laying them until better or alternative forms of proof are made available to him through further investigations. Subject to considerations of fairness and expedition, I cannot think of any reason for treating the principle of the remarks as inapplicable to the institution of charges by way of addition to those set out in a pending indictment.

If, for the reasons given by this Chamber, the question of gaining a tactical advantage is excluded, then what remains is a principle which recognises that the prosecution has a right not to institute charges as soon as it has enough material to do so; it may competently defer doing so until it has inquired into the possibility of obtaining better or alternative forms of evidence. I do not see that this principle, of importance to the investigation and prosecution of crimes of concern to the international community, was considered by the Trial Chamber. Basically, it proceeded on the view that, enough evidence being available at the beginning, an amendment to include the additional charges in the indictment should have been sought at that stage and not later. In my respectful opinion, that approach was not adequate.

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As to the third and final point, concerning the requirement to disclose charges promptly to an arrested person, the argument is that, where the prosecution brings an indictment for only some of the charges which it was then in a position to bring, it was required promptly then to disclose the other charges to the accused by reason of Article 9(2) of the International Covenant on Civil and Political Rights ("ICCPR"), and that, not having done so, it is prohibited from later seeking an amendment of the indictment for the purpose of including them.

Article 9(2) of the ICCPR reads: "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him". Defence counsel argued that "any" means "all", not "some". I agree. The purpose of the provision being to put the arrested person in a position to challenge the lawfulness of his arrest, all of the grounds on which the arrest was made are important. Consequently, the context indicates that the appropriate meaning of "any" is "all", this, like "every", being one of the meanings of the word "any". (Stroud's Judicial Dictionary of Words and Phrases, 5th ed., Vol. 1, p. 139, item 3; and Black's Law Dictionary with Pronunciation, 6th ed., p. 94).

But the same reasoning which leads to the conclusion that "any" means "all" shows that "all" refers to the charges which were relied upon to curtail the accused's liberty by arresting him. The additional charges were not so relied upon. The liberty of the accused was curtailed by an arrest made pursuant to the unique count presented in the confirmed indictment. In seeking confirmation, the prosecution signalled an intent to amend the indictment to include other charges in the event of an arrest. But the other charges were yet to come; they did not form the basis on which the liberty of the accused was curtailed.

As has been repeatedly explained and as has been mentioned above, Article 9(2) of the ICCPR is part of the machinery for putting an arrested person in a position to challenge the lawfulness of his arrest, such a challenge being visualised by Article 9(4), which provides that "[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful". In contrast with Article 9(2), Article 14(3)(a), which also requires the provision of information, is intended to enable a person, whether or not arrested, to take steps to defend himself if he is charged. This is why, as it has been held, the degree of specificity required under the former is lower than that required under the latter. For the purpose of Article 9(2), it is enough that the substance of the charge has been conveyed in general terms and without regard to any particular form, this (depending on the special features of the case) being all that is needed to enable the arrested person to challenge the curtailment of his liberty. For the purpose of Article 14(3)(a), more needs to be done, the requirement being to inform the accused "promptly and in detail in a language which he understands of the nature and cause of the charge against him". (See, similarly, Article 21(4)(a) of the Statute of the Tribunal).

Likewise, there can be cases in which, although no formal charge has been presented, there can be a failure to inform an arrested person promptly of a charge. A person may be arrested on the basis of allegations constituting the substance of a charge even though no formal charge has been presented. To enable him to challenge the lawfulness of the arrest, he must be promptly informed of the charge even though it has not as yet been formally laid. Consequently, in response to a complaint that there has been such a failure to inform, it is not sufficient to say that, no charge having been formally made, no question can arise of a failure to inform the arrested person promptly of the charge. The cases in the books illustrate that fact. I disagree with the submission of the prosecution to the contrary and uphold the opposing argument of the defence.

But, although the fact that a formal charge has not been presented is not a sufficient answer to a complaint of breach of the requirement to inform an arrested person promptly of any charges, the assumption is that the charges to which the requirement applies are charges which were relied on to curtail the liberty of the accused. Cases in which the requirement was held to have been breached although no formal charge had been made involved an arrest made on the basis of allegations which in substance constituted a charge. The arrest in this case was not made on the basis of the allegations constituting the new charges.

Test it this way: If the original charge was sufficient to justify the arrest, then (barring other considerations) that is an end to any challenge to the lawfulness of the arrest. The original lawfulness of the arrest is not retrospectively invalidated by any deficiency in the additional charges. On the other hand, if the original charge did not provide legal justification for the arrest, the deficiency cannot be retrospectively made good by the additional charges.

Either way, the additional charges are not relevant to the lawfulness of the arrest. Since the reason for the requirement to inform the arrested person of any charges is to enable him to challenge the lawfulness of the arrest, it follows that the requirement does not apply to the additional charges.

Done in English and French, the English text being authoritative.

Mohamed Shahabuddeen

Dated this 2nd day of July 1998

At The Hague

The Netherlands

[Seal of the Tribunal]