IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
12 December 2005
DECISION GRANTING PROSECUTION MOTION TO AMEND INDICTMENT
The Office of the Prosecutor
Mr. Chester Stamp
Mr. Karim Agha
Mr. Frederic Ossogo
Counsel for Momcilo Perisic
Mr. James Castle
THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the “Tribunal”) is seized of a motion filed by the Prosecution seeking to amend the indictment filed against Momcilo Perišic (“Indictment”) and hereby renders a decision thereon.
1. On 26 September, the Prosecution filed a motion seeking “leave to amend the indictment in order to correct one typographical error in paragraph 49, that is, to substitute ‘146 civilians’ for ‘121 six civilians’” (“Motion”).1
2. At the status conference held on 25 October 2005, Judge Robinson asked the Accused’s defence counsel whether he had any objection to the Motion. Defence counsel said that he did not.2
3. Under Rule 50 of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Prosecutor may amend an indictment “after the assignment of the case to a Trial Chamber, with the leave of that Trial Chamber.” A Chamber will “normally exercise its discretion to permit the amendment, provided that the amendment will not prejudice the accused unfairly.”3
4. Two factors in particular are considered when determining whether amending an indictment would cause unfair prejudice: (1) notice, or whether the Accused is given an adequate opportunity to prepare an effective defence; and (2) whether granting the amendments will result in undue delay.4
5. Since pre-trial proceedings have just begun in this case, amending the indictment, even if it were to include new charges, would neither deny the Accused an adequate opportunity to prepare his defence nor cause undue delay. This conclusion is not contested by the Defence, since there was no objection to the Motion.
6. In addition, the Chamber considers that, since the “amendment” to the Indictment sought by the Prosecution is in effect the correction of a clerical error, there is no “new charge” being made against the Accused5 and there is also no need for the Chamber to comply with the provisions of Rule 50 (A) (ii).
7. For these reasons, the Trial Chamber, pursuant to Rule 50, GRANTS the Motion.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this 12th day of December 2005
At The Hague, The Netherlands
[Seal of the Tribunal]