Case No. IT-95-14-R77.2

IN THE TRIAL CHAMBER

Before:
Judge O-Gon Kwon, Presiding
Judge Patrick Robinson
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
7 October 2005

PROSECUTOR

v.

IVICA MARIJACIC
MARKICA REBIC

_______________________________________

DECISION ON PROSECUTION’S MOTIONS TO AMEND THE INDICTMENT

_______________________________________

The Office of the Prosecutor:

Mr. David Akerson

Counsel for Ivica Marijacic:

Mr. Marin Ivanovic

Counsel for Markica Rebic:

Mr. Kresmir Krsnik

    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 (“Tribunal”), is seized of two motions from the Office of the Prosecutor (“Prosecution”) to amend the Indictment against Ivica Marijacic and Markica Rebic, and hereby renders its decision thereon.

    I. Procedural History

  1. The original Indictment against Ivica Marijacic and Markica Rebic (“the Accused ”) was confirmed on 10 February 2005, charging them with one count of Contempt of the Tribunal. On 23 June 2005, in part in response to a Motion to Dismiss the Indictment filed by the accused Ivica Marijacic, the Prosecution filed a “Motion for Leave to Amend Indictment” (“first Motion to Amend”). The Prosecution filed its “Second Motion for Leave to Amend the Indictment” on 29 August 2005 (“second Motion to Amend ”) (the first Motion to Amend and the second Motion to Amend are together referred to as the “Motions to Amend”). On 7 July 2005, the accused Markica Rebic filed a confidential “Response of the Accused Markica Rebic to the Prosecutor’s Motion for Leave to Amend the Indictment” (“Response”) and, on 11 July, the Prosecution filed a confidential “Reply to the Response of the Accused Markica Rebic to the Prosecutor’s Motion for Leave to Amend the Indictment” (“Reply”). No leave was sought by the Prosecution, pursuant to Rule 126 bis of the Rules of Procedure and Evidence of the Tribunal (“Rules”), to file this Reply.

  2. Having also been seized of Motions to Dismiss the Indictment from the Accused, the Trial Chamber issued a “Decision on Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment” on 6 September 2005 (“Decision”). In this Decision, the Trial Chamber ordered the Prosecution to provide copies of the specific order(s) that the Accused are alleged to have violated in contempt of the Tribunal, along with clarification of which parts of those order(s) the Accused have allegedly breached, by 9 September 2005. The Trial Chamber further ordered the Accused to file any remaining responses to the Prosecution’s first Motion to Amend and second Motion to Amend, including any arguments based on the clarifications provided by the Prosecution pursuant to the Decision, by 16 September 2005.

  3. On 9 September 2005, the Prosecution filed a confidential “Response to the Decision on Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment” (“Prosecution’s Response to the Decision”). On 15 September 2005, following receipt of a Request for Extension of Time from the accused Ivica Marijacic, the Trial Chamber issued an Order extending the deadline for submission of further responses from the Accused to the Prosecution’s two Motions to Amend until 23 September 2005. On 21 September, a “Defendant Ivica Marijacic’s Response to the Trial Chamber’s Order of 6 September 2005 Opposing the Prosecution’s Motion to Amend, and Motion Pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction” (“Marijacic Response”) was filed. Similarly, on 23 September, a confidential “Response of the Accused Markica Rebic to the Prosecutor’s Motions to Amend and Prosecution’s Response to the Decision on the Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment and Motion pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction” (“Rebic second Response”) was filed.

  4. The Prosecution filed a “Reply to the Defendant Marijacic’s Response to the Trial Chamber’s Order of 6 September 2005” on 27 September 2005, addressing both the issues raised by the accused Marijacic in response to the Prosecution’s Motions to Amend the Indictment and the new motion challenging jurisdiction. The same day, the Prosecution filed a similar “Reply to the Response of the Accused Markica Rebic to the Prosecutor’s Motions to Amend and Prosecution’s Response to the Decision on the Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment and Motion pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction” (together, these are here referred to as the “Prosecution Replies”). No leave was sought by the Prosecution, pursuant to Rule 126 bis, to file these Replies.

    II. Submissions of the Parties

    A. The Prosecution

  5. The Prosecution argues that the first Motion to Amend should be granted as “the amendments are of a relatively restricted nature, they do not constitute new charges against the accused, they set forth the Prosecution’s case in more detail, and they will permit the Trial Chamber to ensure that the real issues in the case are determined.”1 It further argues that “there is no prejudice to the accused as the case is still in an early pre- trial phase and the amendments concerned will only assist both accused in their ability to prepare their defences.”2

  6. The proposed amended indictment, attached by the Prosecution to its first Motion to Amend, differs from the original Indictment in the following respects:3

    (i) The first sentence of paragraph 3 on page 2 now reads: “A protected witness gave a statement to the OTP investigators on the first and second of August 1997.”4

    (ii) Paragraph 6 on page 2 is an entirely new paragraph, providing details of the three orders that the Accused are alleged to have violated, being “a. [t]he decision of Trial Chamber I on the requests of the Prosecutor of 12 and 14 May 1997 in respect of the protection of witnesses, dated 6 June 1997; b. [t]he oral orders issued by the Court during the protected witness’ one day testimony before the ICTY on December 16th 1997; and c. [t]he order of the Trial Chamber’s Order for the Immediate Cessation of Protective Measures for Witnesses dated 1 December 2000.”

    (iii) Paragraph 8 on page 3 now reads: “The article reveals that both Ivica Marijacic and Markica Rebic were aware that disclosure and publication of the identity of the protected witness and of his protected testimony were prohibited and in knowing violation of orders of the Trial Chamber.”5

    (iv) Paragraph 10 on page 3 is an entirely new paragraph, which serves to detail the actions of Ivica Marijacic separately from his co-accused. Ivica Marijacic is accused of having “knowingly and wilfully interfered with the administration of justice in three respects by publishing: (a) the identity of the protected witness ; (b) the statement of the witness; and (c) the fact that the witness had testified in non-public proceedings before the Tribunal.”

    (v) Reference to the accused Ivica Marijacic is removed from paragraph 11 on page 3, and it has also been altered to read, “Markica Rebic knowingly and wilfully interfered with the administration of justice in knowing violation of an Order of a Chamber in three respects by disclosing: (a) the identity of the protected witness; (b) the statement and transcript of the witness, and (c) the fact that the witness had testified in non-public proceedings before the Tribunal.”6

    (vi) The actual charge against the Accused in paragraph 12 on page 3 has been altered, so that it reads: “COUNT 1: Contempt of the Tribunal, punishable under this Tribunal’s inherent power, Rule 77(A) and Rule 77(A)(ii) of the Rules of Procedure and Evidence of the Tribunal.”7

  7. The changes proposed in the draft indictment attached to the second Motion to Amend are more substantial, though less numerous than the changes proposed in the first Motion. The second proposed amended indictment incorporates the changes made in the first proposed amended indictment, and adds the following further changes :

    (vii) The charges against the Accused in paragraph 12 on page 3 have been altered again to read: “By these acts and omissions, Ivica Marijacic and Markica Rebic committed or otherwise aided and abetted in the commission of: COUNT 1: Contempt of the Tribunal, punishable under this Tribunal’s inherent power, Rule 77(A), Rule 77 (A)(ii) and Rule 77 (A)(iv) of the Rules of Procedure and Evidence of the Tribunal.”8

  8. The Prosecution submits that these proposed amendments are necessary “to conform the Indictment to the latest interpretation of the law of contempt” following the Judgement issued in Prosecutor v. Beqa Beqaj, on 27 May 2005.9 The Prosecution also argues that leave to amend should be granted as the amendments are of minor importance and do not add any charges against the Accused. It repeats that “there is no prejudice to the Accused as the case is still in an early pre- trial phase.”10

  9. The parts of the Prosecution Replies that address the Motions to Amend argue that (a) the Accused have not provided any support for their position that there is no basis for the charge of contempt under Rule 77(A)(iv), (b) the Accused have misinterpreted the legal effect of Rule 77(A)(iv), which, in the view of the Prosecution, is that disclosure of a protected witness’s identity amounts to the frustration of the Tribunal’s efforts to protect witnesses, and (c) the Accused have failed to assert any unfair prejudice that would result as a consequence of the proposed amendments. The Prosecution also clarifies that it is not abandoning its claims under Rule 77(A)(ii), but adding a claim under Rule 77(A)(iv) for “otherwise interfering with a witness.”11

    B. The Defence

    (a) The accused Markica Rebic

  10. In his Response, the accused Markica Rebic addresses the proposed amended indictment submitted by the Prosecution in its first Motion to Amend. He argues that the Prosecution has not met the conditions for amendment of an indictment set forth in Rule 50(A )(ii) of the Rules. In particular, he states that the orders identified by the Prosecution, and which the Accused are alleged to have violated, were not addressed to him, as he did not participate in the Blaskic case (this being the case in the course of which the orders were issued) and was not subject to orders in that case. He further argues that there was no way he could have been aware of the orders in the Blaskic case and so could not have violated them “knowingly and wilfully.” Finally, he submits that the allegations against him are “particularly absurd when it comes to the Oral orders issued by the Court during the protected witness’ one day testimony” as this testimony was given in closed session.12

  11. Rebic also objects to the insertion of reference to Rule 77(A) in the proposed amended indictment, on the grounds that “it would not at all be clear for which acts punishable under Rule 77(A) Mr. Rebic would be accused, or in case that the Prosecution intended to propose an indictment for all of the acts described in the Rule 77(A), it would not at all be clear in which way Mr. Rebic is supposed to have committed those acts.”13 He therefore argues that the proposed amendment would not meet the requirements of Rule 47(C) of the Rules.

  12. In his second Response, Rebic re-states his objection to the insertion of reference to Rule 77(A), and also objects to the added reference to Rule 77(A)(iv). He argues that the factual allegations in the Indictment do not support charges under either of these. The remaining matters raised in the second Rebic Response concern a challenge to the jurisdiction of the Tribunal and are the subject of a separate decision of the Trial Chamber.

    (b) The accused Ivica Marijacic

  13. In the Marijacic Response, the accused Ivica Marijacic also objects to the insertion by the Prosecution of reference to Rule 77(A), in general, in the proposed amended indictment. He further objects to the addition of reference to Rule 77( A)(iv), stating that, if the Prosecution is alleging that he violated the protective measures orders of a Trial Chamber, it must proceed pursuant to Rule 77(A)(ii).14 In support of his position, he argues that application of the principle of statutory construction expressio unius est exclusio alterius must result in the conclusion that the judges of the Tribunal intended to exclude from charges of contempt disclosures of information that were not in knowing violation of an order of a Chamber.15 He also argues that the principle that a statute should be interpreted in a manner that gives meaning to each of its provisions is applicable and requires rejection of the Prosecution’s interpretation of Rule 77 and the Tribunal’s “inherent powers.” The basis of his argument is that Rule 77(A)(ii) would be rendered meaningless if the Prosecution was able to charge someone with contempt for disclosing information about a witness in the absence of an order of a Chamber, because the Prosecution would never have to prove knowing violation of an order of a Chamber.16

  14. Marijacic also argues that the Trial Chamber which heard the Blaskic case implicitly rejected the proposition that publication of the testimony of a witness who is not the subject of protective measures can nevertheless constitute interference with the administration of justice and therefore contempt of the Tribunal. He therefore states that this rejection by the Trial Chamber hearing the Blaskic case is irreconcilable with the Prosecution’s argument that publication of the testimony of a witness can constitute contempt even in the absence of an order of a Chamber.17

  15. Marijacic finally argues that the Prosecution’s broad interpretation of Rule 77(A) and the Tribunal’s inherent powers would have a chilling effect on journalists, as they would no longer know what can and cannot be published.18

  16. The remaining matters raised in the Marijacic Response concern a challenge to the jurisdiction of the Tribunal and are the subject of a separate decision of the Trial Chamber.

    III. The Rules

  17. The following provisions of the Rules, relating to contempt of the Tribunal and to the amendment of indictments, are relevant to the present case:

    Rule 77
    Contempt of the Tribunal

    (A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

    (i) being a witness before a Chamber, contumaciously refuses or fails to answer a question;

    (ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber;

    (iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber;

    (iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or about to give evidence in proceedings before a Chamber, or a potential witness; or

    (v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber.

    (B) Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties.

    [...]

    (E) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis mutandis to proceedings under this Rule.

    [...]

    Rule 50
    Amendment of Indictment

    (A) (i) The Prosecutor may amend an indictment:

    [...]

    after the assignment of the case to a trial Chamber, with the leave of that Trial Chamber or a Judge of that Chamber, after having heard the parties.

    Independently of any other factors relevant to the exercise of the discretion, leave to amend an indictment shall not be granted unless the Trial Chamber or Judge is satisfied there is evidence which satisfies the standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment.

    [...]

    (B) If the amended indictment includes new charges and the accused has already appeared before a Trial Chamber in accordance with Rule 62, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges.

    (C) The accused shall have a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of the new charges and, where necessary, the date for trial may be postponed to ensure adequate time for the preparation of the defence.

    IV. Discussion

  18. Amendment of an indictment is governed by Rule 50 of the Rules, which is applicable in contempt cases by virtue of Rule 77(E). This Trial Chamber has concluded elsewhere that “the test for whether leave to amend will be granted is whether allowing the amendments would cause unfair prejudice to the accused.”19 It has also stated that “in determining whether any prejudice to the accused will follow from an amendment to the indictment, regard must be had to the circumstances of the case as a whole.”20

  19. The decision on whether to grant a motion to amend an indictment is a discretionary one of the Trial Chamber (or a Judge), so long as it is satisfied that there is evidence supporting the amendment that establishes a prima facie case against the accused, as required by Article 19(1) of the Statute. In the jurisprudence of the Tribunal “a prima facie case on any particular charge exists in this situation where the material facts pleaded in the indictment constitute a credible case which would (if not contradicted by the accused) be a sufficient basis to convict him of that charge.”21 The prima facie case test is to be applied by judges reviewing indictments pursuant to Rule 47 and has also been incorporated into the consideration of amendments to an indictment by virtue of Rule 50(A)(ii). Thus, the judge who reviewed the original Indictment in the present case must have satisfied himself that there was a prima facie case for the charges contained in it and it is not for the Trial Chamber to revisit that determination. It follows that it is only if a particular amendment proposed by the Prosecution amounts to a new charge that the Trial Chamber must satisfy itself that a prima facie case for that amendment is established.

  20. The Trial Chamber must, therefore, consider each of the amendments proposed by the Prosecution in its two Motions to Amend to determine whether they would cause unfair prejudice to the Accused. An important issue that arises in its consideration is whether any of the amendments constitute new charges against the Accused, which would not only trigger the procedures set out in Rule 50(B) and (C), but would also require an assessment of whether the Prosecution has established a prima facie case for these new charges.

    (a) First proposed amendment

  21. The first proposed amendment listed above is simply the correcting of a fact – the protected witness was interviewed by the Prosecution’s investigators on both 1 and 2 August 1997. This is supported by the Witness Statement of the witness that records the “Dates of Interviews” as 1 and 2 August 1997. Neither of the Accused has challenged this proposed amendment and the Trial Chamber does not consider that its addition would cause unfair prejudice to the Accused.

    (b) Second proposed amendment

  22. The second proposed amendment is the addition of a paragraph listing the three orders issued in the course of the Blaskic proceedings that the Accused are alleged to have breached. While this amendment was proposed in the first Motion to Amend, which was filed by the Prosecution prior to the Trial Chamber’s Decision on the Motions to Dismiss, it is important to note that, in that Decision, the Chamber stated that it is necessary for the Indictment to specify which orders the accused are alleged to have violated.22 As a result, the second proposed amendment provides further specification of the basis for the existing charge against the accused. However, it does not add any new charges, nor does it add any new factual allegations as the basis of the existing charge. Thus, the Trial Chamber need not, at this stage, examine the content of the particular orders alleged to be violated by the accused and specified in the proposed amended indictment to determine whether a prima facie case against the Accused is established. Indeed, when the original Indictment was confirmed by Judge Orie, he must have been satisfied that the Prosecution had established a prima facie case against the Accused for the contempt charge as originally formulated, and it is not for this Trial Chamber to revisit his decision.

  23. The Trial Chamber does not consider that the addition of the second proposed amendment would cause unfair prejudice to the Accused and, indeed, the Prosecution was ordered in our Decision on the Motions to Dismiss the Indictment to provide the information contained in this proposed amendment.

    (c) Third and fourth proposed amendments

  24. The third proposed amendment is connected to the fourth, insofar as it provides further details on the specific action allegedly committed by the accused Marijacic. Marijacic is alleged to have “published” information that was “disclosed” by Rebic. Both Accused are alleged to have known that publication and disclosure were prohibited and in violation of orders of the Trial Chamber. The addition of the words “publication” and “publishing” in the third and fourth proposed amendments, with specific reference to Marijacic, serves to clarify the form his unlawful disclosure of information took, and therefore does not amount to a new charge against him.

  25. The deletion of the word “knowing” from paragraph 8 does not substantially alter the meaning of the paragraph as it already states that the Accused acted with awareness of both the prohibited nature of their actions and that their actions were in violation of orders of the Trial Chamber. The insertion of the word “prohibited” may be superfluous, for if the Accused were aware that their actions were in violation of orders of the Trial Chamber, then they also knew that their actions were prohibited. However, the addition of this word does not constitute a new charge, and the Chamber does not consider that the third and fourth proposed amendments would cause unfair prejudice to the Accused.

    (d) Fifth proposed amendment

  26. In light of the fourth proposed amendment, the fifth proposed amendment seeks to remove reference to the accused Marijacic from the following paragraph. The paragraph therefore specifies the action allegedly taken by Rebic, namely the disclosure of the specified information. Rebic is accused of disclosing not only the statement of the protected witness, but also now the transcript of his testimony before the Tribunal. Paragraph 6 of the original Indictment states that Rebic provided Marijacic with the identity of the protected witness, copies of his statement to Prosecution investigators, and the transcript of his testimony in the Blaskic proceedings. However, paragraph 9 of the original Indictment, which comes immediately before the actual charge and which lists the three things the two Accused are alleged to have done “in knowing violation of an order of a Chamber” makes no mention of disclosure of the transcript of the protected witness’ testimony before the Tribunal. The proposed amendment might, therefore, be considered as adding a new factual allegation underlying the offence of contempt.

  27. This Trial Chamber has held elsewhere that “where [a] new allegation could be the sole action or omission of the Accused that justifies his conviction, that amendment is a “new charge” for the purposes of Rule 50.”23 In the present case, the action allegedly committed by Rebic was the disclosure of certain information and the addition of the transcript to the list of items allegedly disclosed by him does not add substantively to his “action.” Moreover, the Trial Chamber is of the view that the reference to disclosure of the transcript by Rebic in paragraph 6 of the Indictment gave sufficient notice to this accused of the allegations against him, and does not consider that the added reference to the transcript in the proposed amended indictment constitutes an entirely new factual allegation. It does not, therefore, amount to a new charge against the accused Rebic. In addition, neither of the Accused have objected to the addition of reference to the transcript and the Trial Chamber does not consider that it would cause unfair prejudice to the Accused.

  28. The deletion of the text “in knowing violation of an Order of a Chamber” from paragraph 11 seems to be part of the Prosecution’s attempt to move away from emphasis on Rule 77 (A)(ii) in favour of a broader focus on Rule 77(A) as a whole, and the Tribunal’s inherent power to prosecute and punish contempt, which is discussed below. The Trial Chamber does not consider that the deletion of this text substantially alters the meaning of the paragraph nor the nature of the charges against the Accused, nor does it cause them unfair prejudice.

    (e) Sixth and seventh proposed amendment

  29. The sixth and seventh amendments raise questions about the scope of the crime of contempt before the Tribunal. In particular, these proposed amendments relate to the underlying forms of commission of the crime of contempt and the modes of liability. Where the difference between the underlying forms of commission enumerated is substantive, and where an accused could be found guilty on the basis of one form of commission and not guilty on the basis of another, then there are in essence multiple charges. In such cases, the Trial Chamber must consider whether the Prosecution has established a prima facie case against the Accused for the added underlying form of commission. Similarly, the addition of a new form of liability (aiding and abetting in the commission of contempt) amounts to a new charge for which a prima facie case must be established.

  30. The Trial Chamber will first address the proposed addition of reference to Rule 77(A) and Rule 77(A)(iv) to paragraph 12 of the amended indictment and then turn to a consideration of the addition of “aiding and abetting” in the commission of contempt.

    (i) Rule 77(A) and Rule 77(A)(iv)

  31. The inherent power of the Tribunal to prosecute and punish individuals for contempt is well established in the jurisprudence of the Tribunal.24 Rather than being an exhaustive articulation of the crime, Rule 77 of the Rules expresses “only the general contours” of contempt.”25 As indicated by the language contained at the beginning of paragraph (A) of Rule 77, individuals who knowingly and wilfully interfere with the administration of justice by the Tribunal may be found in contempt when they engage in conduct including those forms listed in sub-paragraphs (i) to (v), but these forms of commission do not constitute an exclusive list. It is therefore possible for a person to be charged with contempt of the Tribunal under the inherent power of the Tribunal articulated in Rule 77(A) where there is evidence of knowing and wilful interference with its administration of justice that does not fit within one of the categories articulated in sub-paragraphs (i) to (v). Similarly, it may be possible for an individual to be charged with contempt of the Tribunal under one of the sub -paragraphs of Rule 77(A), and also charged under the general power expressed in the opening language of Rule 77(A), if additional facts are alleged that indicate action by the accused person that cannot be fit within one of the sub-paragraphs (i) to (v). It follows also that a person can be charged with contempt under more than one of the sub-paragraphs (i) to (v) where there is evidence of forms of conduct that can fit within more than one of these sub-paragraphs.

  32. The Prosecution does not explain in its first Motion to Amend what the reason is for its insertion of “Rule 77(A)” into paragraph 12. Whereas previously the Accused were charged with contempt punishable under the inherent power of the Tribunal and Rule 77(A)(ii) (disclosure of information relating to proceedings in knowing violation of an order of a Chamber), by its proposed amendment the Prosecution maybe seeks to include the possibility of the application of Rule 77(A) as a separate charge. It is unclear what the basis of such a possible extension could be, as there is nothing in the material filed that suggests that the Accused engaged in any action that falls outside the scope of one of the sub-paragraphs of Rule 77( A), namely Rule 77(A)(ii). Indeed, the material filed suggests that the actions of the Accused fall within Rule 77(A)(ii), as originally charged in the Indictment, and there are no allegations of additional conduct on the part of the Accused that does not fall within the scope of that sub-paragraph.

  33. The position in relation to the proposed addition of reference to Rule 77(A )(iv) is similar. The Prosecution could charge an accused person with contempt punishable under Rule 77(A)(ii) and 77(A)(iv) were it to provide a separate factual basis for the additional underlying form of commission. If it is relying on the same factual basis, but is not certain whether the Trial Chamber will find that all of the elements of one form of commission are proven, it may alternatively, or indeed cumulatively, charge the accused person on the basis of a second form of commission. In the present case, the Prosecution could charge the Accused on the basis of Rule 77(A)(ii) and/or 77(A)(iv).

  34. Whether the Accused are charged in the cumulative or the alternative, the addition of references to new forms of commission requires the Trial Chamber to be satisfied that the Prosecution has established a prima facie case against them. The relevance of Rule 77(A)(iv) to the facts of the present case is not immediately apparent and it is therefore difficult to conclude that a prima facie case has been established for a charge under Rule 77(A)(iv). In its Replies, the Prosecution appears to be relying upon an interpretation of “otherwise interfering with a witness ” which it has taken from an Appeals Chamber judgement on contempt in the Aleksovski case.26 In that case, as an example of the kind of conduct that might be considered to constitute contempt drawn from the United Kingdom, the Appeals Chamber mentions the publication of a witness’ identity where protective measures have been granted, “where contempt is based not upon the violation of an order granting protective measures but because the disclosure interfered with the administration of justice.”27 The Prosecution seeks to use this quotation in support of an argument that publication of a protected witness’s identity amounts to “interfering with a witness” although the quoted text would seem more supportive of the charge under Rule 77(A) in general.

  35. The Trial Chamber therefore rejects the proposed addition of Rule 77(A)(iv), as there are no material facts pleaded in the amended indictment that constitute a credible case which would (if not contradicted by the accused) be a sufficient basis to convict the Accused of threatening, intimidating, causing any injury or offering a bribe to, or otherwise interfering with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness.28

  36. In addition, the Trial Chamber is not satisfied that there are material facts pleaded in the amended indictment that constitute a credible case which would (if not contradicted by the accused) be a sufficient basis to convict the Accused under Rule 77(A) as a charge separate from that made under Rule 77(A)(ii). The Prosecution has provided no explanation, nor any distinct factual basis for its proposed addition of Rule 77(A). If, as appears to be the case, the Prosecution is alleging the commission of contempt under of Rule 77(A) on the basis of the same facts as for the commission of contempt under Rule 77(A)(ii), the addition of a specific reference to Rule 77(A) is unnecessary. As form of commission of the crime of contempt articulated in Rule 77(A), Rule 77(A)(ii) incorporates the general language and requirements of Rule 77(A).

    (ii) Aiding and abetting the commission of contempt

  37. In the Beqaj case, the accused was charged with participating in: count 1, contempt; count 2, attempted contempt; and count 3, incitement to contempt of the Tribunal. Elsewhere in the indictment, he was alleged to have “incited, attempted to commit, committed or otherwise aided and abetted in the commission of contempt of the Tribunal.”29 In its final judgement in that case, Trial Chamber I concluded that count 1 of the indictment encompassed the two forms of responsibility of “commission” and “aiding and abetting.”30 The Trial Chamber went on to find the accused guilty under count 1 of contempt, and not guilty of attempted contempt and incitement to contempt. It did not, however, specify whether it had found him guilty of committing contempt or of aiding and abetting contempt.

  38. It is not clear from its judgement whether Trial Chamber I considered that “aiding and abetting” is a form of responsibility that is within the jurisdiction of the Tribunal with regard to contempt, as it did not discuss the matter. However, “aiding and abetting” contempt is not contemplated within Rule 77. The question is, therefore, raised whether it is possible for the Tribunal to prosecute or convict a person of aiding and abetting contempt. The Appeals Chamber has taken the view that each of the formulations in Rule 77(A) to (D) falls within, but does not limit, the inherent power of the Tribunal to prosecute and punish contempt.31 It has also found that “the content of [the Tribunal’s] inherent power may be discerned by reference to the usual sources of international law.”32

  39. This Trial Chamber concludes that, while Rule 77 does not on its face contemplate aiding and abetting contempt, the prosecution of an individual for this form of liability must fall within the inherent power of the Tribunal as a lesser form of commission liability.

  40. Applying the test in the Halilovic Decision, the addition of “aiding and abetting ” would introduce a basis for conviction that is factually and legally distinct from any already alleged in the Indictment, and it must therefore be considered as a new charge. The Trial Chamber is not, however, satisfied that the Prosecution has established a prima facie case against either of the Accused for aiding and abetting the commission of contempt, as it has provided no information about whom they are alleged to have aided and abetted or what their actions were that constituted aiding and abetting the commission of the crime. For this reason, the Trial Chamber rejects the proposed addition of aiding and abetting liability proposed by the Prosecution.

    III. Disposition

  41. Pursuant to Rule 50 of the Rules, the Trial Chamber hereby GRANTS the Motions to Amend in the following respects:

    (a) The first proposed amendment is granted in full;

    (b) The second proposed amendment is granted in full;

    (c) The third proposed amendment is granted in full;

    (d) The fourth proposed amendment is granted in full;

    (e) The fifth proposed amendment is granted in full; and

    DENIES the Motions to Amend in the following respects:

    (f) The sixth proposed amendment is denied;

    (g) The seventh proposed amendment is denied.

  42. Pursuant to Rule 54, the Trial Chamber ORDERS as follows:

    (1) The Prosecution shall file an amended Indictment within seven days of the date of this Decision.

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

______________
Judge O-Gon Kwon
Presiding

Dated this seventh day of October 2005
At The Hague
The Netherlands

  • [Seal of the Tribunal]


    1 - First Motion to Amend, para. 6
    2 - Ibid, para. 7
    3 - Pages and paragraph numbers refer to the proposed amended indictment attached by the Prosecution to its first Motion to Amend.
    4 - New text emphasised
    5 - New text emphasised, deleted text struck through.
    6 - New text emphasised, deleted text struck through.
    7 - New text emphasised.
    8 - New text emphasised.
    9 - Second Motion to Amend, para. 5.
    10 - Ibid, para. 6
    11 - Prosecution’s Reply to Defendant Marijacic’s Response to the Trial Chamber’s Order of 6 September 2005, para. 19.
    12 - Reply, at para. 9
    13 - Reply, at para. 13.
    14 - Marijacic Response, at para. 5
    15 - Ibid, at para. 8
    16 - Ibid, at para. 10
    17 - Ibid, at para. 6
    18 - Ibid, at para. 11.
    19 - Prosecutor v. Sefer Halilovic, IT-01-48-PT, Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment, 17 December 2004, (“Halilovic Decision”) para. 22.
    20 - Prosecutor v. Zeljko Meakic, Momcilo Gruban, Dusan Fustar, Predrag Banovic and Dusko Knezevic, IT-02-65-PT, Decision on the Consolidated Indictment, 21 November 2002, p.3, referring to Prosecutor v. Naletilic & Martinovic, IT-98-34-PT, Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary Motion to the Amended Indictment, 14 February 2001.
    21 - Prosecutor v. Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Odjanic and Vlajko Stojiljkovic, IT-99-37-I, Decision on Review of Indictment and Application for Consequential Orders, 24 May 1999, para. 4.
    22 - The filing by the Prosecution of its first Motion to Amend immediately after a motion to dismiss the Indictment was filed by one of the Accused that challenged the fact that the original Indictment did not specify which orders the Accused were alleged to have violated, significantly hindered the prompt resolution of pre-trial motions in the present case and is not to be encouraged. It is better practice on the part of the Prosecution to respond to a motion to dismiss of this nature by indicating that it is willing to make certain changes to the indictment and, following resolution of that matter, to file a subsequent motion to amend the indictment. Had this procedure been followed in the present case, it might also have avoided the additional filing of the second Motion to Amend.
    23 - Halilovic Decision, para. 34.
    24 - See, e.g. Prosecutor v. Dusko Tadic, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, and Prosecutor v. Beqa Beqaj, Case No. IT-03-66-T-R77, Judgement on Contempt Allegations, 27 May 2005.
    25 - Prosecutor v. Beqa Beqaj, Case No. IT-03-66-T-R77, Judgement on Contempt Allegations, 27 May 2005, para. 9
    26 - Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Ante Nobilo against Finding of Contempt, 30 May 2001
    27 - Ibid, at para. 40.
    28 - See the test for establishment of a prima facie case, discussed in para. 19.
    29 - Prosecutor v. Beqa Beqaj, Case No. IT-03-66-T-R77, Indictment, 29 October 2004, para. 2, emphasis added.
    30 - Prosecutor v. Beqa Beqaj, Case No. IT-03-66-T-R77, Judgement on Contempt Allegations, 27 May 2005, para. 23
    31 - Prosecutor v. Dusko Tadic, IT-94-1-A-R77, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, para. 26
    32 - Ibid, at para. 13.