Case No. IT-02-65-PT

IN THE TRIAL CHAMBER

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

Registrar:
Mr. Hans Holthuis

Order of:
26 October 2004

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ORDER ON PROSECUTION’S MOTION TO AMEND CONSOLIDATED INDICTMENT SCHEDULES A THROUGH F, THE RULE 65 TER WITNESS SUMMARIES, AND THE PRE-TRIAL BRIEF INCIDENT SUMMARIES

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The Office of the Prosecutor:

Ms. Ann Sutherland

Counsel for the Accused:

Mr. Jovan Simic, for Zeljko Mejakic
Mr. Branko Lukic, for Momcilo Gruban
Mr. Theodore Scudder and Mr. Dragan Ivetic, for Dusan Fustar
Ms. Slobodanka Nedic, for Dusko Knezevic

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 International Tribunal"),

BEING SEISED of a confidential "Prosecution’s Motion to Amend Consolidated Indictment Schedules A through F, the Rule 65 ter Witness Summaries, and the Pre-Trial Brief Incident Summaries", filed by the Office of the Prosecutor ("Prosecution") on 30 August 2004 ("the Motion"), seeking leave to amend the schedules to the consolidated indictment dated 5 July 2002, the Rule 65 ter witness summaries and the pre-trial brief incident summaries, pursuant to Rule 73 (A) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"),

NOTING the Prosecution submission that, on further review of the evidence, and taking into account factors such as the availability of witnesses, limited resources and the desire to streamline its case, the Prosecution proposes the withdrawal of the ten incidents (nine from schedule D and one from schedule F), and remove three incidents (one from the amended schedule B and two from schedule D, already contained in schedules A and C respectively),

NOTING further that the Prosecution proposes to add some of the scheduled incidents currently listed in schedules A and D which involves crimes by the Accused named in schedules C and E, to schedules C and E specifically dealing with the Accused Fuštar and Knezevic, on the basis that the Prosecution pleads that the respective Accused is a direct participant in the alleged incidents; the Prosecution also proposes various amendments that it submits are intended to clarify its pleadings, including some of the information contained in the schedules, witness summaries and Pre-Trial Brief incidents summaries, the proposed amendments are described as principally administrative in nature, that will create a clearer picture of Knezevic’s and Fuštar’s liability, streamline the case as well as reduce the amount of evidence the Prosecution had planned to call at trial,

NOTING that the Defence of Duško Knezevic filed a "Dusko Knezevic’s Response to Prosecution’s Motion to Amend Consolidated Indictment Schedules A Through F, the Rule 65ter Witness Summaries, and the Pre-Trial Brief Incident Summaries" on 22 September 2004 ("the Knezevic Response", accepted as timely filed by Order dated 29 September 2004), objecting to the Prosecution Motion on the ground that new charged are raised against Knezevic – two incidents of murder and one beating –, accordingly, asserts that the changes cannot be described as simply "administrative in nature"; the Defence also complains that the proposed amendments will cause further delays in pre-trial preparation in breach of the right of the accused to be tried without undue delay,

CONSIDERING that applications to amend an indictment are governed by Rule 50 of the Rules, which provide that, after the assignment of a case to a Trial chamber, the Prosecution may amend an indictment with the leave of the Trial Chamber or a Judge of the Chamber, after having heard the parties; whilst, in this instance, the Prosecution is seeking to amend the schedules to the consolidated indictment, schedules form an integral part of an indictment, any application to amend the schedules is thus subject to Rule 50 of the Rules,

CONSIDERING that the fundamental question to be decided in relation to applications to amend an indictment is whether the amendment proposed would result in prejudice to the accused;¹ in determining this, regard must be had to the circumstances of the case as a whole;² where the proposed amendments amount to additional charges, leave to amend an indictment would not ordinarily be granted unless there is prima facie evidence available to support the additional matter or charge; in such cases, the test for granting leave to amend is the same as for confirmation of an indictment,³

CONSIDERING that while the withdrawal of incidents in the schedules is, to some extent, a discretionary matter for the Prosecution, the addition of the proposed items to the schedules may, in this case, give rise to additional charges against the accused Knezevic and Fuštar; furthermore, since this case is ready for trial, if the revisions are allowed, the Defence would be entitled to revise and file new pre-trial briefs and, possibly, preliminary motions, causing delays in trial readiness; the Trial Chamber will order the Prosecution to file further submissions,

PURSUANT TO Rules 50, 54, and 65 ter of the Rules,

HEREBY ORDERS as follows;

1. the Prosecution shall, by Thursday, 11 November 2004, file additional submissions addressing the following matters: (i) whether the proposed amendments introduce new charges with regard to the case against the accused Knezevic and Fustar, and (ii) if, as it is submitted, the amendments are purely administrative in nature, whether they are required at this stage,
2. the Defence may file any further response to the Motion within seven days of the filing of the Prosecution further submissions.

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

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Patrick Robinson
Presiding

Dated this twenty-sixth day of October 2004
At The Hague
The Netherlands