Case No. IT-03-67-PT

IN THE TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
27 May 2005

PROSECUTOR

v.

VOJISLAV SESELJ

_____________________________________

DECISION ON PROSECUTION’S MOTION FOR LEAVE TO AMEND THE INDICTMENT

_____________________________________

Counsel for the Prosecutor:

Ms. Hildegard Uertz-Retzlaff
Mr. Ulrich Mussemeyer
Mr. Daniel Saxon

The Accused:

Mr. Vojislav Seselj

Standby counsel:

Mr. Tjarda Eduard van der Spoel

    I. BACKGROUND

  1. Trial Chamber II (“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 seised of the “Prosecution’s Motion for Leave to Amend the Indictment With Confidential and ex parte Supporting Material” (“Motion”), filed by the Prosecution on 1 November 2004, whereby the Prosecution seeks, pursuant to Rule 50 of the Rules of Procedure and Evidence (“Rules”), leave to amend the Indictment against Vojislav Seselj (“Proposed Amended Indictment” and “Accused”).

  2. On 14 February 2003, the initial indictment against the Accused was reviewed and confirmed (“Current Indictment”). On 24 December 2003, the Accused filed an “Objection to the Indictment” which challenged, among other things, a number of defects in the form of the Current Indictment. On 26 May 2004, the Trial Chamber ordered the Prosecution “to clarify the ambiguity in paragraph 11 of the Indictment with respect to the meaning of the word ‘committed’”,1 but dismissed the remaining complaints made by the Accused.2

  3. Subsequent to the filing of the Motion, on 2 December 2004, the Trial Chamber ordered the Prosecution to show good cause why the ex parte supporting material had not been disclosed to the Accused, which the Prosecution did. In a decision filed on 21 December 2004, the Trial Chamber stipulated a time period of two weeks within which the Accused could file a response to the Motion. The Accused on 5 January 2005 filed a submission3 in which he requested to be provided with certain decisions and judgements which have been referred to in the Motion, before commenting on the substance of the Motion. The Accused has not made further submissions regarding the Motion within the prescribed time -limit, but he has indicated in subsequent oral and written submissions that he does not object to the Prosecution expanding the Current Indictment, provided that this does not lead to a delay in the commencement of his trial.4

    II. DISCUSSION

    A. The Law

  4. The applicable law governing the amendment of an indictment is contained in Rule 50 of the Rules, which provides, in relevant part:

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

    ...

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

    (ii) 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.

  5. Rule 50 of the Rules does not provide specific guidelines to a Trial Chamber , after a case has been assigned to it, for determining whether or not to allow the amendment of an indictment.5 Where an amendment to an indictment is sought to ensure that the real issues in the case will be determined, a Trial Chamber will normally exercise its discretion to permit the amendment, provided that the amendment will not prejudice the accused unfairly.6 Whether the amendment of an indictment would prejudice the accused unfairly is determined by two factors in particular: (1) Is the Accused given an adequate opportunity to prepare an effective defence ? and (2) Will granting the amendment result in undue delay?7

  6. In case the amendment sought includes new charges against an accused, according to Rule 50(A)(ii) of the Rules, the Trial Chamber must be satisfied that these new charges are supported by evidence establishing a prima facie case against the accused, in accordance with paragraph 1 of Article 19 of the Statute.8 If this is so and the accused has already made an initial appearance, according to Rule 50(B) and (C) of the Rules, the accused is entitled to enter a plea with regard to the new charges at a further appearance, and preliminary motions may be filed regarding the amended parts of the indictment.

    B. Suggested amendments concerning the mode of liability of ‘committing’

  7. Consonant with the Trial Chamber’s instructions in its decision of 26 May 2004 ,9 the Prosecution proposes amendments to paragraphs 5, 11 and 29 of the Current Indictment in order to clarify the ambiguity with respect to the meaning of the word ‘committed’. In doing so, the Prosecution suggests adding to paragraph 5 of the Current Indictment, where the word ‘committed’ is used for the first time, the following sentence:

    Physical commitment is pleaded only in relation to the charges of persecutions (Count 1) by direct and public ethnic denigration (paragraphs 15 and 17(k)) with respect to the Accused’s speeches in Vukovar, Mali Zvornik, and Hrtkovci, and by deportation and forcible transfer (paragraphs 15 and 17(i)) with respect to the Accused’s speeches in Hrtkovci, and in relation to the charges of deportation and inhumane acts (forcible transfer) (Counts 10-11, paragraphs 31-34), with respect to the Accused’s speech in Hrtkovci.10

  8. The Prosecution specifically alleges that the Accused “physically committed the crime of persecution through the use of illegal ‘hate speech’”.11 In support, the Prosecution is relying on jurisprudence from the International Criminal Tribunal for Rwanda finding individuals guilty of having committed persecution through ‘hate speech’.12 In addition, the Prosecution proposes that, in order to be consistent with the newly phrased paragraph 5, paragraph 29 of the Current Indictment should be amended with the following sentence :

    As a result of this speech, a number of Croat residents decided to leave Hrtkovci.13

  9. Moreover, in order to further specify the notion of ‘committed’, the Prosecution seeks to amend paragraph 5 of the Current Indictment to state that the Accused committed the crimes in question by participating in a joint criminal enterprise “as a co- perpetrator”. In paragraph 11 of the Current Indictment, the Prosecution requests to insert ‘physically’ before the word ‘committed’.14

  10. The Trial Chamber notes that the Prosecution was tasked to clarify the ambiguity in paragraph 11 of the Current Indictment by the Trial Chamber’s decision of 26 May 2004. The Trial Chamber is satisfied that the proposed amendments to paragraphs 5, 11 and 29 of the Current Indictment are in line with its earlier decision and specify the meaning of the word ‘committed’ sufficiently. As no conceivable prejudice of the Accused arises out of these amendments, the Trial Chamber will grant this part of the Motion.

    C. Suggested amendment concerning the mode of liability of ‘instigating’

  11. The Prosecution further requests an amendment to the charge of ‘instigation’ considering the Appeals Chamber’s holding in the Blaskic Judgement that “‘ instigation’ is a distinct form of participation under Article 7(1) of the Statute and thus when the Prosecution pleads such a case, the instigating acts, and the instigated persons and groups of persons are to be described precisely”.15 Against this background, the Prosecution suggests that the following specification should be inserted in paragraph 29 of the Current Indictment:

    After the speech, supporters and associates of the accused, including members of the SRS and the SCP, began a campaign of ethnic cleansing directed at non-Serbs, particularly Croats, in Hrtkovci.

  12. The Trial Chamber finds that the suggested amendment to paragraph 29 of the Current Indictment provides, although not expressly mentioned in the Trial Chamber’s earlier decision, further specification as regards the mode of liability of ‘instigating’. However, the Trial Chamber notes that the acronym ‘SCP’ in the suggested sentence is introduced without further explanation as to its meaning, and enjoins the Prosecution to insert such clarification. However, as no conceivable prejudice of the Accused arises out of these amendments, the Trial Chamber will also grant this part of the Motion, subject to the aforementioned clarification.

    D. Addition and removal of allegations

  13. The Prosecution further requests to add new factual allegations to the Current Indictment based on recently obtained evidence and to include crimes allegedly committed in the municipalities of so-called “Greater Sarajevo” (consisting of the municipalities of Ilijas, Vogosca, Novo Sarajevo, Ilidza and Rajlovac) as well as in Bijeljina, Mostar, Nevesinje and Brcko (all in Bosnia and Herzegovina), affecting paragraphs 6, 10, 15, 17, 18, 25, 27 and 31 of the Current Indictment, and adding four new paragraphs after paragraph 23 of the Current Indictment.

  14. Further changes proposed by the Prosecution consist of:

    (i) The addition of a reference to ‘children’ as victims of extermination or murder in paragraph 17 of the Current Indictment,16

    (ii) The deletion of reference to the “Novi Izvor building”; the reduction of the number of killed individuals at the “Ciglane” factory from two to one; and the insertion of a reference to the alleged crimes of murder/extermination taking place in the Drinjaca Dom Kulture in Zvornik; all in paragraph 22 of the Current Indictment,17

    (iii) The designation of the time-period in which crimes were allegedly committed in parts of Vojvodina, Serbia, including the village of Hrtkovci, to be “between May and August 1992”, instead of “May 1992” as stated in paragraph 27 of the Current Indictment,18

    (iv) The addition of a reference to the destruction of institutions dedicated to religion and education in Zvornik in paragraph 31 of the Current Indictment.19

  15. In determining whether the inclusion of new factual allegations, be it by extension of the geographical or temporal scope of the Current Indictment, would constitute an unfair prejudice to the Accused, the Trial Chamber observes that a date for the commencement of the trial of the Accused has not yet been scheduled, and it appears that the Accused will have ample opportunity to prepare a defence with regard to the new charges. The Trial Chamber also recognises the duty of the Prosecution to prosecute the Accused to the full extent of the law and to present all relevant evidence before the Trial Chamber.20 Moreover, the Accused has stated himself that he does not object to the adding of new allegations against him, provided that this does not result in a delay of his trial.21

  16. The Trial Chamber is also satisfied, having reviewed the supporting material accompanying the Motion, that there is evidence which meets the standard set out in Article 19 of the Statute, to support the amendments sought.

  17. The Trial Chamber further notes that some of the proposed amendments would result in the inclusion of new charges forming a new basis for conviction not previously included in the Current Indictment, within the meaning of Rule 50(B) of the Rules. It will therefore make appropriate orders to safeguard the procedural rights of the Accused.

  18. Finding that no prejudice of the Accused arises out of these amendments, the Trial Chamber will grant this part of the Motion as well.

    E. Suggested amendments concerning clerical errors22

  19. Finally, the Prosecution seeks to have several clerical errors in the Current Indictment corrected.23 The Trial Chamber will grant this request, there being no conceivable prejudice of the Accused.

    III. DISPOSITION

  20. For the foregoing reasons, pursuant to Rule 50 of the Rules, the Trial Chamber

    1. GRANTS the Motion, subject to the clarification mentioned in paragraph 12 of this Decision, and DECIDES that the Proposed Amended Indictment shall be the operative indictment (“Amended Indictment”) against the Accused;

    2. REQUESTS the Registrar to serve the Amended Indictment to the Accused, in accordance with the relevant provisions in the Rules;

    3. ORDERS that a further appearance shall be held as soon as practicable to enable the Accused to enter a plea on the new charges;

    4. REMINDS the Accused that within thirty days, he is entitled to file preliminary motions pursuant to Rule 72 of the Rules with respect to the new charges.

 

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

Dated this twenty-seventh day of May 2005,
At The Hague
The Netherlands

____________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1 - Decision on Motion by Vojislav Seselj challenging jurisdiction and form of the Indictment, 26 May 2004, para. 62(2).
2 - Ibid. The Trial Chamber’s decision also ordered the Prosecution to clarify the ambiguity in para. 12 of the Indictment in relation to Vojvodina/Serbia and the issue of armed conflict. Upon an interlocutory appeal by the Prosecution, in a decision of 31 August 2004, the Appeals Chamber reversed that part of the Trial Chamber’s ruling.
3 - Submission no. 65.
4 - See Status Conference of 31 January 2005, T. 317; Motion by the accused for Trial Chamber II to issue a subpoena pursuant to Rule 54 of the Rules of Procedure and Evidence (Submission No. 78), p. 3: “The accused, Vojislav Seselj explained in pittoresque fashion that the Prosecution can expand the indictment, add thousands of pages, ascribe thousands of crimes to Professor Vojislav Seselj, but that the trial should begin as soon as possible...”.
5 - Prosecutor v. Ljubicic, Case No. IT-00-41-PT, Decision on Motion for Leave to Amend the Indictment, 2 August 2002, p. 3.
6 - Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 50; Prosecutor v. Naletilic and Martinovic, Case No. 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, p. 7.
7 - Prosecutor v. Beara, Case No. IT-02-58-PT, Decision on Prosecution Motion to Amend the Indictment, 24 March 2005, p. 2; Prosecutor v. Halilovic, Case No. IT-01-48-PT, Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment, 17 December 2004, para. 23.
8 - Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by S/RES 827 (1993) and last amended by S/RES 1481 (2003)
9 - See note 1 supra.
10 - Motion, para. 3.
11 - Motion, para. 4.
12 - Motion, paras 6-8, referring to Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T, Judgement, 3 December 2003, para. 1072 and Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, 1 June 2000, para. 22.
13 - Motion, para. 9.
14 - Motion, para. 5.
15 - Motion, paras 10-11, referring to the Appeal Judgement in Blaskic, Case No. IT-95-14-A, 29 July 2004, para. 226, which in turn quotes Prosecutor v. Deronjic, Case No. IT-02-61-PT, Decision on Form of the Indictment, 25 October 2002, para. 6.
16 - Motion, para. 16.
17 - Motion, para. 15. In the submission of the Prosecution, these particular changes will not result in a longer trial.
18 - Motion, para. 13.
19 - Motion, para. 17.
20 - Prosecutor v. Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000, para. 27.
21 - See para. 3 supra.
22 - See para. 10 supra.
23 - Motion, para. 18; such as the corrected reference to counts 12-14 in para. 7 and before para. 31 (previously: counts 12-15); the deletion of reference to “unlawful attacks on civilian objects” before para. 31; and the correction of the spelling of “Sremska Mitrovica” in para. 21 of the Current Indictment.