The Prosecutor v. Ratko Mladic - Case No. IT-95-5/18-1

"Order Granting Leave to File an Amended Indictment and Confirming the Amended Indictment"

8 November 2002
Confirming Judge Orie

Procedural Background

· On 24 July 1995, the First Indictment against Ratko Mladic (hereinafter the “First Indictment”) was filed and confirmed by Judge Jorda on 25 July 1995. On 15 November 1995 the Second Indictment against Mladic (hereinafter the “Second Indictment”) was filed and confirmed by Judge Riad on 16 November 1995.

· On 11 October 2002, pursuant to Rule 50 of the Rules of Procedure and Evidence (hereinafter “the Rules”), the Prosecution requested leave to amend the two indictments against Ratko Mladic filed under case numbers IT-95-5-I (for the First Indictment ) and IT-95-18-I (for the Second Indictment). In their place, the Prosecutor submitted a new consolidated indictment (hereinafter the “Amended Indictment”) and requested that it be confirmed.

The Decision

The Confirming Judge granted the Prosecution’s request for leave to file the Amended Indictment and accordingly, pursuant to Article 19 of the Statute of the International Tribunal (hereinafter “the Statute”)¹ and Rule 47 of the Rules,² confirmed the Amended Indictment in respect of each and every count.

The Reasoning

The applicable test for review of the Amended Indictment

The Confirming Judge stressed the necessity to determine whether the Prosecution “has established a prima facie case”,³ before confirming the Indictment submitted pursuant to Articles 18 and 19 of the Statute⁴ and Rule 47 of the Rules. He noted that the Statute does not define the concept of a prima facie case, that reviewing Judges have sometimes determined a test to be applied but have not adopted an unanimous interpretation of the concept. Judge Orie provided some relevant examples.

Judge Sidhwa confirmed the Indictment against Rajic, pursuant to Rule 47 and noted that, in his view, Rule 47 provides an interpretation of Article 19 of the Statute.⁵ This interpretation was accepted by Judge Riad.⁶

Judge Kirk MacDonald was not satisfied that Rule 47, which applies to Article 18 (4) of the Statute, was a satisfactory interpretation of Article 19 of the Statute.⁷ She sought another interpretation and turned to the commentary of Article 27 of the Draft Statute for an International Criminal Court (hereinafter “ICC”), which provides that: “a prima facie case for this purpose is understood to be a credible case which would (if not contradicted by the Defence) be a sufficient basis to convict the accused on the charge”.

This interpretation was subsequently applied by other Confirming Judges.⁸ Judge Hunt, however, quoted various decisions on acquittal and the Delalic Appeal Judgement and considered that the definition of a prima facie case was “whether there is evidence (if accepted) upon which a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”.⁹

In Milosevic et al., Judge May considered that the test for review of an Indictment as formulated in 1995 by Judge Kirk MacDonald was the most appropriate for that stage of the proceedings.¹⁰

Judge Orie noted that the test adopted in the Rome Statute of the ICC was not the same as the one adopted in the Draft Statute and used by Judge Kirk McDonald: he considered that whereas Article 58 of the Statute states that a suspect may be arrested and detained if there are reasonable grounds for believing that he/she committed the crimes charged, Article 61(7) requires sufficient evidence to establish substantial grounds for believing that the accused committed each of the crimes charged in order for him/her to be put on trial.

As Judge Orie could not find a definition uniformly applied of what constitutes a prima facie case, he turned to screening mechanisms in domestic criminal procedures systems which deal with the question of whether there is a strong enough case for a suspect or accused to be tried. The purpose of the screening mechanisms is “to protect the accused against oppressive unfounded charges”, as “[s]tanding trial is a difficult experience and an accused should not be put on trial if, from the outset, a conviction is unlikely”.¹¹

Judge Orie considered that standing trial for offences falling within the jurisdiction of the International Tribunal is “more burdensome than is usually already the case for common crimes”.¹² In his view it is not possible to apply a low standard of proof because “in the legal system of the Tribunal, unlike in most criminal procedure systems, the accused has not yet had the opportunity to contradict or challenge the evidence”.¹³ Accordingly, Judge Orie decided to discharge his duty under Article 19 of the Statute and “allow[ed] the Prosecutor to proceed to trial against the accused on the condition that the Prosecution evidence, if accepted and uncontradicted, sufficiently supports the likelihood of the accused’s being convicted by a reasonable trier of fact”.¹⁴

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1. Article 19 (1) of the Statute (Review of the indictment) provides that: “The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.”
2. Rule 47 (E) of the Rules (Submission of Indictment by the Prosecutor) provides that: “The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 19, paragraph 1, of the Statute, whether a case exists against the suspect.”
3. Para.11.
4. Article 18 (4) of the Statute (“Investigation and Preparation of Indictment”) provides that: “Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber”.
5. Rajic, IT-95-12-I, Review of the Indictment, 29 August 1995.
6. Mrksic et al., IT-95-13-I, Confirmation of the Indictment, 7 November 1995; Karadzic and Mladic, IT-95-5/18/I, Review of the Indictment, 16 November 1995.
7. Kordic et al., IT-095-14-I, Decision on Review of the Indictment, 10 November 1995.
8. See inter alia Milosevic et al., IT-99-37-I, Decision on Application to Amend Indictment and on Confirmation of Amended Indictment, 29 June 2001.
9. Ibid., para.3 (emphasis by Judge Hunt).
10. Milosevic et al., IT-99-37-I, Decision on Review of Indictment, 22 November 2001, Judicial Supplement No. 29.
11. Para. 22.
12. Para. 23.
13. Para. 24.
14. Para. 26