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