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1. On 24 February 1999, the Trial Chamber gave a decision on a Preliminary Motion by the accused (Milorad Krnojelac) alleging defects in the form of the indictment, filed pursuant to Rule 72 of the Rules of Procedure and Evidence. That Motion was partially successful, in that the prosecution was directed to amend the indictment in certain respects and to file an amended indictment on or before 26 March. On the subsequent application of the prosecution, based upon what was said to be the need to review voluminous documents in order to plead the charges correctly and the illness of one of its counsel,¹ and without objection from the accused, this date was extended to 23 April 1999.²

2. On 23 April, the prosecution filed a document entitled "Prosecutor’s Response to Decision on the Defence Preliminary Motion on the Form of the Indictment", to which was attached a document entitled "Amended Indictment" and certain other documents to which reference need not be made at this stage. The amended indictment itself was not filed separately.

3. The so-called "Response" seeks to explain the amendments which were made and how they are said to comply with the decision of the Trial Chamber given on 24 February. The document –

(i) raises for the determination of the Trial Chamber an issue as to whether Rule 50 of the Rules of Procedure and Evidence is applicable and what further procedures, if any, must be followed for the amended indictment "to become valid";³

(ii) draws attention to a factual error in the original indictment which has been revealed by further investigation; and

(iii) submits that the amended indictment is "in compliance" with the Trial Chamber’s Decision.⁴

4. Rule 50 is concerned with two situations – how an amendment may be made to the indictment, and what happens thereafter. It provides:

(A) The Prosecutor may amend an indictment:

(i) without leave, at any time before its confirmation;

(ii) thereafter, and until the commencement of the presentation of evidence in terms of Rule 85, with leave of the Judge who confirmed the indictment, or a Judge assigned by the President; or

(iii) after the commencement of the presentation of evidence, with leave of the Trial Chamber hearing the case, after having heard the parties.

Rules 47(G) and 53bis relate to the certification, translation and service of the indictment once it has been confirmed.

5. The context in which Rule 50 is being considered here is that, pursuant to Rule 72, the accused has successfully demonstrated a defect in the form of the indictment and the Trial Chamber has directed the prosecution to amend it. In that context, it is convenient to consider first the situation in relation to the making of the amendment. As the original indictment in this case was confirmed by Judge Vohrah on 17 June 1997, and as no evidence has yet been presented in the terms of Rule 85, and upon the assumption that Rule 50(A) does apply in the present context, para (ii) would be the relevant provision.

6. The prosecution submits that leave to amend the indictment need only be obtained from the confirming judge (or another judge assigned by the President) where the amendment is sought by the prosecution, and that Rule 50(A) does not apply where the amendment is made either with the leave or at the direction of a Trial Chamber pursuant to Rule 72.

7. The practice within the Tribunal has not been consistent as to the precise nature of the relief granted when upholding a complaint by an accused in relation to the form of the indictment pursuant to what is now Rule 72. For example, in Prosecutor v Tadic,⁵ the Trial Chamber granted leave to the prosecution to amend the indictment within a limited period. In Prosecutor v Djukic,⁶ the Trial Chamber invited the prosecution to amend the indictment so as to conform with the Statute and the Rules. In Prosecutor v Blaskic,⁷ the Trial Chamber invited the prosecution to supplement the indictment by supplying particulars of the places where certain events were alleged to have occurred and, "as appropriate", it ordered such amendments to be made within a limited period, but it also directly ordered the prosecution to amend the indictment in three ways – by providing sufficient factual indications in support of the types of responsibility invoked, by adding further precision to various allegations made only in general terms and by giving further particulars of other allegations. Subsequently, in the same case,⁸ the Trial Chamber noted that the prosecution had failed by its amendments to provide any further details in support of the types of responsibility involved, and the Trial Chamber stated that it would not fail "to draw all the legal consequences at trial" of the prosecution’s failure to give sufficient notice to the accused of the case he was to meet. In the present case, the prosecution was directed to amend the indictment in certain respects and to file an amended indictment within a limited period.⁹ Another form of relief in an appropriate case may be to strike out any offending part of an indictment and then to grant leave to the prosecution to amend.

8. There is no difference in substance between granting leave to the prosecution to amend the indictment and ordering or directing the prosecution to amend it. In either such case, any application made to the confirming judge pursuant to Rule 50(A) for leave to make the particular amendments which have already been permitted or directed by a Trial Chamber would serve no useful purpose, and the Trial Chamber is satisfied that such a procedure is not contemplated by the wording of the rule. The submission of the prosecution in relation to Rule 50(A) is therefore correct. It is unnecessary in this case to determine whether the same would be the consequence of a mere invitation by a Trial Chamber to the prosecution to amend, although common sense would seem to dictate that it should be the same.

9. What happens next depends upon whether the amendments do or do not go beyond what was permitted or directed by the Trial Chamber.

10. If the amendments made by the prosecution do go beyond what was permitted or directed by the Trial Chamber and add new charges, Rule 50(A) does apply, and leave to make those amendments is required. Such leave must be sought from the confirming judge or another judge assigned by the President. The reason why the Trial Chamber which heard the Motion by the accused pursuant to Rule 72 cannot also grant leave to add new charges at this stage lies in the structure of the Rules of Procedure and Evidence. The Rules adopt a division of functions which exists in both common law and civil law systems – between, on the one hand, the functions of the grand jury (or committing magistrate) in the common law system or the juge d’instruction in some civil law systems and, on the other hand, the functions of the trial judges.

11. Every indictment submitted by the prosecution must be reviewed by a judge for confirmation in accordance with Rule 47 prior to the service of the indictment. That judge is required by Rule 47(E) to examine each count of the indictment in order to determine whether a case exists against the person or persons against whom the count is laid. The judge must be satisfied that the count contains a prima facie case against the accused,¹⁰ in the sense that it pleads a credible case which would (if not contradicted by the accused) be a sufficient basis to convict him on the charge.¹¹ This review is performed ex parte and, once performed, the confirming judge becomes ineligible to sit as a member of the Trial Chamber for the trial of that accused.¹² The intention of this division of functions is to avoid any contamination spreading from the ex parte nature of the confirming procedure to the Trial Chamber.

12. Once evidence has been presented before the Trial Chamber, it is not practicable for the confirming judge to continue to be the authority from whom leave to amend in order to add new charges must be sought. Many amendments at that stage are in any event made simply to ensure that the indictment properly reflects the evidence which has already been given. But, even when that is not the case and the amendment involves new evidence, no confirming judge can be in as good a position at that stage as the Trial Chamber is to deal with amendments to the indictment. That is why para (iii) has been added to Rule 50(A). The need to confirm the indictment remains where an application for leave to amend is granted,¹³ although the review which must be undertaken by the Trial Chamber for that purpose is performed inter partes, in open court in the presence of the accused, and the amended indictment may be confirmed only after hearing both parties.¹⁴ The possibility of contamination spreading from the ex parte nature of the confirming procedure is therefore effectively eliminated.

13. If the amendments made by the prosecution do not go beyond what was permitted or directed by the Trial Chamber in relation to defects found in the form of the indictment, and so do not add new charges, leave to amend need not be sought from the confirming judge or other judge assigned by the President pursuant to Rule 50(A), as earlier stated. Is there nevertheless still a requirement that the amended indictment be reviewed? Such a review could not practicably be performed by the Trial Chamber which granted leave to amend, because all three judges would thereafter automatically become ineligible to sit as members of the Trial Chamber for the trial of the accused.¹⁵ And, as no new charges have been added, a review would serve no useful purpose. The Trial Chamber is satisfied that such a procedure is not contemplated by the wording of the rule in this situation.

14. If at any stage the amendments to the indictment do include new charges, Rule 50(B) requires the accused to enter a plea on the new charges.

15. An issue would appear to arise in the present case as to whether some of the amendments now made by the prosecution do go beyond what was directed by the Trial Chamber’s decision and thus require such leave and confirmation pursuant to Rule 50(A) and the entry of a new plea pursuant to Rule 50(B). Before referring to the nature of those amendments, however, it is necessary to say something concerning the procedure which has been followed by the prosecution in this case.

16. First, it is inappropriate for any party to file a so-called "Response" to a decision of the Tribunal unless one is expressly sought by that decision. If a party wishes to obtain advice as to any procedure to be followed as a consequence of that decision, then that party should file a Motion seeking a determination of the issue which arises, allowing the other party or parties to file a response to that Motion.

17. Secondly, the submission in the so-called "Response" in the present case that the proposed amended indictment is "in compliance" with the decision of the Trial Chamber appears to assume that, without more, it now becomes the function of the Trial Chamber to determine whether that document does or does not comply with that decision. In effect, it assumes that the prosecution may now obtain the Trial Chamber’s approval of the form of the new pleading. That assumption is quite wrong.

18. The Trial Chamber is, of course, entitled to raises the issue proprio motu. But, unless it does so, it is never the function of a Trial Chamber to approve of the form of an indictment unless and until there is some complaint by the accused that the form of that indictment (original or amended) is defective. If an indictment has been amended only as permitted or directed by the Trial Chamber following a preliminary Motion pursuant to Rule 72, then it should be filed and served. If the accused believes that there remain defects, or that there are new defects, he must file a new Motion in which he makes his complaint.¹⁶ Then and only then does it become the function of the Trial Chamber to determine whether or not the form of the amended indictment is defective.

19. The Trial Chamber has not given any consideration as to whether the amendments now made in the proposed amended indictment comply with the directions which it gave. However, when reading the explanatory material in the so-called "Response" of the prosecution, the Trial Chamber has obtained the impression that the prosecution may have taken the opportunity to add new charges for which leave is required pursuant to Rule 50(A). It is true, as the prosecution says, that no new counts have been added to the indictment. But that is only because of the pleading style adopted by the prosecution in this case; each count has been pleaded only in the terms of the Statute, and thus in terms of absolute generality, leaving it to the material facts pleaded in respect of that count to reveal the specific details which are required (such as the identity of the victim, the place and the approximate date of the alleged offence and the means by which the offence was committed)¹⁷ and which should, strictly, have been pleaded in the count itself.

20. In some cases in the proposed amended indictment, it is at least arguable that there has been an insertion of entirely new factual situations in support of existing counts, either in substitution for or in addition to the factual situations which had been pleaded in the original indictment.¹⁸ Even though the count remains pleaded in the same terms of the Statute, these substitutions may nevertheless amount effectively to new charges. It may well be that, such has been the nature of the changes made, leave to amend will be required. If that be so, the amended indictment will have to be reviewed and the accused will have to enter a new plea on those charges. At this stage, the Trial Chamber merely raises these issues for the consideration of the parties. It does not express any concluded view as to those issues, preferring to determine them if and when they are raised and after considering the submissions of both parties.

21. What is to be done in the present case, therefore, is as follows:

(1) The prosecution must determine what stand it takes in relation to the proposed amended indictment. If it takes the stand that it has not pleaded new charges in the way described, it must file the amended indictment within seven days of the date of this decision.

(2) If the accused challenges the prosecution’s stand that the proposed amended indictment has not pleaded such new charges, he must, within thirty days of the filing of the amended indictment, file a Motion to strike out those passages from that amended indictment which he asserts do plead new charges as having been added without leave.

(3) If the prosecution accepts that it has pleaded new charges in the way described, it must apply to the confirming judge (Judge Vohrah), or to another judge assigned by the President, for leave to amend pursuant to Rule 50, and the remaining procedures provided by that rule will follow. It must also apply to this Trial Chamber within seven days of the date of this decision for a variation of the time limit for filing the amended indictment already imposed by its order of 25 March 1999 to enable that application to be made and a review carried out.

(4) If the accused asserts that there remain defects, or that there are new defects in any amended indictment filed, he must, within thirty days of the filing that amended indictment, file a Motion to complain of those defects.

22. For the foregoing reasons, TRIAL CHAMBER II DECIDES that –

1. Leave is granted to the prosecution, within seven days of the date of this decision, to file the proposed amended indictment or to apply for a variation of the time limit imposed by the order made on 25 March to enable an application for leave to amend to be made and a review carried out pursuant to Rule 50.

2. Leave is granted to the accused, within thirty days of the filing of an amended indictment, to file a preliminary Motion pursuant to Rule 72 in relation to that amended indictment if he be so advised.

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

Dated this 20^th day of May 1999
At The Hague
The Netherlands

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David Hunt
Presiding Judge