Case No.: IT-04-83-PT

IN THE TRIAL CHAMBER

 

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

Registrar:
Mr. Hans Holthuis

Order of:
28 April 2006

PROSECUTOR

v.

RASIM DELIC

_________________________________________________

ORDER ON AMENDED INDICTMENTS AND CHALLENGES THERETO

_________________________________________________

Office of the Prosecutor

Mr. Daryl Mundis
Ms. Tecla Henry-Benjamin
Mr. Matthias Neuner
Mr. Kyle Wood

Counsel for Rasim Delic

Ms. Vasvija Vidovic
Ms. Quincy Whitaker

 

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"),

BEING SEIZED of the Prosecutionís partly confidential "Submission of Amended Indictment pursuant to Trial Chamber Decision of 13 December 2005", filed on 20 January 2006 ("January 2006 Motion to Amend"), in which the Prosecution submits an amended Indictment ("January 2006 Proposed Amended Indictment") purporting to implement several changes ordered by the Trial Chamber in its decision of 13 December 2005 ("December 2005 Decision"),1

BEING ALSO SEIZED of the "Corrigendum to Prosecutionís Submission of Amended Indictment pursuant to Trial Chamber Decision of 13 December 2005", filed on 23 January 2006 ("January 2006 Corrigendum"), in which the Prosecution proposes to correct an "unintentionally misleading" sentence in the January 2006 Motion to Amend,2

BEING ALSO SEIZED of the "Second Defence Motion Alleging Defects in the Form of the Indictment", filed on 17 February 2006 ("February 2006 Defence Challenge"), in which the Defence of Rasim Delic ("Defence") claims that the January 2006 Proposed Amended Indictment contains a number of "remaining defects" which, "despite the ruling of the Trial Chamber [of 13 December 2005], have not been cured by the submission by the Prosecution of the Amended Indictment",3 and requests the Trial Chamber to order the Prosecution "to cure these defects and accordingly file a further Amended Indictment",4

BEING ALSO SEIZED of the partly confidential "Prosecution Response to the Second Defence Motion Alleging Defects in the Form of the Indictment", filed on 28 February 2006 ("February 2006 Prosecution Response"), in which the Prosecution proposes one change to the 20 January Proposed Amended Indictment in response to the February 2006 Defence Challenge, but otherwise requests that the Trial Chamber dismiss the challenge in its entirety,5

BEING ALSO SEIZED of the partly confidential "Prosecutionís Submission of Proposed Second Amended Indictment and Application for Leave to Amend", filed on 18 April 2006 ("April 2006 Motion to Amend"), in which the Prosecution submits another amended Indictment ("April 2006 Proposed Amended Indictment") seeking leave to amend the January 2006 Proposed Amended Indictment to include allegations concerning the additional crime bases of Grabovica, Uzdol, and Bugojno, and to charge certain crimes not only pursuant to Article 7(3) of the Statute of the Tribunal, but also Article 7(1),6

BEING ALSO SEIZED of the "Defence Response to Prosecutionís Submission of Proposed Second Amended Indictment and Application for Leave to Amend", filed on 26 April 2006 ("April 2006 Defence Challenge"), in which the Defence requests the Trial Chamber to deny the April 2006 Motion to Amend and "to strike the continued inclusion in the Indictment of the allegation concerning events at Maline in the light of the Judgement in Ö Hadzihasanovic [and] Kubura",7

CONSIDERING that the April 2006 Proposed Amended Indictment was filed within 30 days of the Hadzihasanovic and Kubura Trial Judgement, and that it was therefore submitted in a timely manner in accordance with the December 2005 Decision,8

NOTING that, at the 2 March 2006 status conference, both parties expressed their assent to the Pre-Trial Judgeís proposal for the Trial Chamber to consider together any and all challenges to the January 2006 Proposed Amended Indictment on the one hand, and the further amended indictment anticipated to follow Hadzihasanovic and Kubura on the other,9 and NOTING that this further amended indictment was ultimately filed on 18 April 2006,101

NOTING that the initial Indictment in this case was filed on 15 February 2005, confirmed by Judge Carmel Agius on 16 February 2005, and unsealed on 23 February 2005;11 that a redacted version of this Indictment was filed on 17 March 2005 ("March 2005 Indictment");12 and that the March 2005 Indictment was the indictment at issue in the December 2005 Decision,13

CONSIDERING that the March 2005 Indictment continues to be the operative indictment in this case,

NOTING that, despite this fact, the Prosecution formulated the April 2006 Proposed Amended Indictment as if all the proposed changes in the January 2006 Proposed Amended Indictment had already been approved by the Trial Chamber,14

CONSIDERING that concerns for judicial economy warrant the submission of a single, consolidated amended indictment and a consolidated challenge thereto,

PURSUANT TO Rules 50, 54, and 72 of the Rules, hereby ORDERS as follows:

  1. The Prosecution shall file, no later than 5 May 2006, a proposed amended indictment consolidating all changes proposed to the March 2005 Indictment, both on the Prosecutionís own initiative as reflected in the April 2006 Motion to Amend and in response to the December 2005 Decision ("consolidated amended indictment"). The Prosecution shall also file a table describing all proposed changes, as well as an annotated "red-line" version of the consolidated amended indictment. This red-line version shall contain references to the supporting material submitted on 20 January 2006 and 18 April 2006. The Prosecution shall not re-submit the supporting material, but shall provide a table giving new tab numbers to all the supporting material, and indicating the previous tab numbers from the respective supporting material of 20 January and 18 April corresponding to the new tab numbers. The footnote numbers in the annotated red-line version of the consolidated amended indictment shall correspond to these new tab numbers.
  2. If the Defence intends to challenge this consolidated amended indictment, it shall do so no later than 22 May 2006. The Defence shall include all its arguments in this motion, and shall not incorporate by reference the arguments made in the February 2006 Defence Challenge and the April 2006 Defence Challenge.
  3. The January 2006 Motion to Amend, the January 2006 Corrigendum, the February 2006 Defence Challenge, the February 2006 Prosecution Response, the April 2006 Motion to Amend, and the April 2006 Defence Challenge are otherwise DISMISSED without prejudice.

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

Dated this twenty-eighth day of April 2006
At The Hague
The Netherlands

_______________________
Judge Patrick Robinson
Presiding

[Seal of the Tribunal]


1. Prosecutor v. Delic, Case No. IT-04-83-PT, Decision on Defence Motion Alleging Defects in the Form of the Indictment and Order on Prosecution Motion to Amend the Indictment, 13 December 2005 ("December 2005 Decision"), para. 64.
2. Delic, Corrigendum to Prosecutionís Submission of Amended Indictment pursuant to Trial Chamber Decision of 13 December 2005, 23 January 2006, p. 1.
3. Delic, Second Defence Motion Alleging Defects in the Form of the Indictment, 17 February 2006, para. 1.
4. Ibid., para. 2. See also ibid., para. 23.
5. Delic, Prosecution Response to the Second Defence Motion Alleging Defects in the Form of the Indictment, 28 February 2006, paras. 4, 37.
6. Delic, [Partly Confidential] Prosecutionís Submission of Proposed Second Amended Indictment and Application for Leave to Amend, 18 April 2006 ("April 2006 Motion to Amend"), paras. 1, 8.
7. Delic, Defence Response to Prosecutionís Submission of Proposed Second Amended Indictment and Application for Leave to Amend, 26 April 2006, para. 1, p. 9.
8. December 2005 Decision, supra note , para. 65 ("The Prosecution shall file its new motion seeking leave to amend the Indictment within 30 days of the rendering of the Trial Judgement in Prosecutor v. Hadzihasanovic and Kubura.").
9. Delic, T. 66Ė67 (2 March 2006).
10. See April 2006 Motion to Amend, supra note .
11. Delic, Confidential and Ex Parte Order to Vacate in Part the Order for Non-Disclosure, 23 February 2005, pp. 2Ė3; Delic, Order Lifting the Confidentiality of the Order to Vacate in Part the Order for Non-Disclosure, 28 February 2005, p. 2.
12. Delic, Indictment, 17 March 2005. See also Delic, [Confidential and Ex Parte] Decision on Prosecution Motion to Redact Indictment and to Redact Witness Statements that Formed Part of the Supporting Materials, 16 March 2005, pp. 2Ė3.
13. See December 2005 Decision, supra note , paras. 3, 64.
14. April 2006 Motion to Amend, supra note , para. 1.