Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
1 February 2006
The Office of the Prosecutor
Mark B. Harmon
Counsel for the Accused
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 “Tribunal”), is seized of a “Motion Objecting to the Form of the Indictment,” filed on 3 November 2005 (the “Defence Motion”) by Sredoje Lukic (the “Accused”), and the “Prosecution’s Motion to Amend the Indictment,” filed on 17 November 2005 (the “Motion to Amend the Indictment”).
1. On 12 July 2001, an Amended Indictment was filed against Milan Lukic, Sredoje Lukic and Mitar Vasiljevic.1 Neither Milan Lukic nor Sredoje Lukic was before the Tribunal, however, and trial proceeded against Mitar Vasiljevic alone, leading to a Trial Chamber Judgement on 29 November 2002 2 and a subsequent Appeals Chamber Judgement on 25 February 2004.3
2. On 1 February 2005, the Prosecution filed a motion with the President of the Tribunal 4 to constitute a Referral Bench to consider a request to transfer the case against the Accused and Milan Lukic to the courts of Bosnia and Herzegovina pursuant to Rule 11 bis of the Rules of Evidence and Procedure (the “Rules”).5 The President granted the motion and constituted the Referral Bench,6 which is currently considering the Prosecution’s request.7
3. On 16 September 2005, the Accused was transferred to the seat of the Tribunal and the President of the Tribunal assigned the case against the Accused to Trial Chamber III.8 On 10 November 2005, the Trial Chamber designated Judge Iain Bonomy as Pre-Trial Judge.9 Milan Lukic has yet to be transferred to the seat of the Tribunal.
4. The Accused filed the Defence Motion on 3 November 2005, arguing that the Amended Indictment, under which Mitar Vasiljevic was tried and which still names both the Accused and Milan Lukic, is impermissibly vague and fails properly to plead the Accused’s criminal responsibility under Article 7(1) of the Statute of the International Criminal Tribunal for the former Yugoslavia (the “Statute”).10
5. The Prosecution responded by “agree[ing] to amend the indictment to meet many of the concerns raised by the Defence,”11 and by filing its Motion to Amend the Indictment along with a proposed Second Amended Indictment.12 In light of these submissions, the Prosecution asks that the Defence Motion be dismissed.13
6. The Accused filed a reply to the Prosecution’s filings, stating that the Prosecution acted improperly by submitting the proposed Second Amended Indictment before the Trial Chamber had an opportunity to decide the Defence Motion.14 The Accused argues that the correct course of action is for the Trial Chamber to decide the Defence Motion and, should the Chamber agree that the Amended Indictment is defective, instruct the Prosecution on how to cure the defects.15 Only then, says the Accused, may the Prosecution submit a proposed amended indictment.16
7. Despite his contention that the Motion to Amend the Indictment was filed out of order, the Accused also submitted a response to that motion,17 and the Prosecution filed a reply.18
8. As a preliminary matter, the Trial Chamber must determine which motion to decide. Following submission of the Defence Motion, which alleged defects in the form of the Amended Indictment, the Prosecution filed its Motion to Amend the Indictment. Rather than offering a response to the Defence Motion on the merits, the Prosecution simply “request[ed] that the Motion be dismissed”19 in light of the Prosecution’s view that the proposed Second Amended Indictment “ meet[s] many of the concerns raised by the Defence”20 and thus, presumably, renders the Defence Motion moot. The Accused contests the Prosecution’s assertion that the proposed amended indictment addresses his objections to the Amended Indictment,21 and argues that the Prosecution’s response amounts to a concession that the Amended Indictment should be stricken.22
9. There is nothing in the Rules that prevents the Prosecution from answering a motion objecting to the form of an indictment with a proposed amended indictment that is said to respond to those objections.23 Despite the possibility that responding substantively to the Defence Motion would have been procedurally more straightforward than filing the Motion to Amend the Indictment, the fact is that that Motion is now before the Chamber. Even if the Chamber were to grant the Defence Motion and order revision of the Amended Indictment – assuming that the Chamber found such action legally correct – that would not dispose of the Motion to Amend the Indictment, which the Prosecution would presumably refile. Thus in the interests of judicial economy and pursuant to the Trial Chamber’s power under Rule 54 to issue orders that are necessary for the preparation of trial, the Chamber will dismiss the Defence Motion without prejudice and decide the Motion to Amend the Indictment.
10. As various Trial Chambers have noted, “the test for whether leave to amend [an indictment] will be granted is whether allowing the amendments would cause unfair prejudice to the accused.”24 A “decision to accept an amendment will normally be forthcoming unless prejudice can be shown to the accused,”25 and “an amendment will not be refused merely because it assists the prosecution quite fairly to obtain a conviction.”26 “Two factors particularly are relevant in determining whether amendment of an indictment would cause unfair prejudice: (1) notice, i.e., whether the Accused has been given an adequate opportunity to prepare an effective defence; and (2) whether granting the amendments will result in undue delay.”27
11. In his response to the Motion to Amend the Indictment, the Accused first argues that granting the Motion would unfairly prejudice him by removing the presumption of innocence that must operate at his trial.28 The Accused’s argument on this point is not altogether clear but he appears to assert that, because the Second Amended Indictment’s allegations reflect some of the factual findings on which Mitar Vasiljevic’s conviction in the Trial Chamber was based, repeating those facts as allegations here will make it appear at trial that, in the Accused’s words, “he is already convicted.”29 The Prosecution replies that there is “[n]o question of a loss of the presumption of innocence,”30 and quotes the Vasiljevic trial Judgement:
The findings by the Trial Chamber... have not been made for the purpose of entering criminal convictions against... other individuals. In particular, the two co -accused who have not yet been arrested, Milan Lukic and Sredoje Lukic, have not been found guilty beyond reasonable doubt in this trial of any of the crimes charged against them in the Indictment. They are not in any way bound by the findings made in this trial, and they will be able to challenge fully any evidence given in this trial which implicates them if it is given against them in their own trial before this Tribunal.31
12. The Trial Chamber agrees completely with the statements above. Every accused is presumed innocent until proven guilty beyond a reasonable doubt,32 which the Prosecution bears the burden of demonstrating at trial. Additionally, the Prosecution here notes that it has not asked this Chamber to judicially notice any of the adjudicated facts in the Vasiljevic trial Judgement,33 and this Chamber would in any case look sceptically upon a motion filed pursuant to Rule 94(B) that sought judicial notice of a fact which would negate the presumption of innocence. The Accused’s argument on this point is therefore rejected.
13. The Accused next argues that granting the Motion to Amend the Indictment would unfairly prejudice him and give the Prosecution an improper tactical advantage by increasing the chances of the case against him being transferred to Bosnia and Herzegovina.34 The Accused contends that the Amended Indictment, which alleged that the Accused committed crimes “throughout the municipality of Visegrad and elsewhere in the territory of the Republic of Bosnia and Herzegovina,”35 made it “hard for the Referral Bench to decide to transfer this case,”36 whereas the Second Amended Indictment, which limits the geographical area of the charged crimes to the municipality of Visegrad,37 gives “an easy way for the Referral bench to transfer this case.”38 As the Prosecution points out, however, the Accused makes utterly no attempt to explain this assertion. The Trial Chamber agrees, and also agrees with the Prosecution that, even if the proposed amended indictment makes transfer more likely, the Accused has not explained how that prejudices him. If the Accused is suggesting that trial in the courts of Bosnia and Herzegovina would be unfair, he offers nothing to support such a suggestion, rejection of which the Appeals Chamber has found reasonable.39 The Accused’s argument on this point is therefore rejected.
14. The Accused also argues that the proposed Second Amended Indictment raises new charges, and therefore must be rejected because it fails to satisfy the requirements of Rule 50(A)(ii).40 Under the Tribunal’s jurisprudence concerning Rule 50(A)(ii), “leave to amend [an indictment] is not granted if the material provided by the Prosecution does not meet the prima facie standard, as set forth in Article 19(1) of the Statute, to support proposed amendments.”41 “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 an accused....”42
15. In the “Prosecution’s Reply to Defence Response to Motion to Amend Indictment” (the “Prosecution’s Reply”), the Prosecution
accepts [that] some of the amendments to the indictment proposed by the Prosecution may fall within the definition... of “new charge.” The Prosecution therefore does not contest the right of the accused to enter a plea on the charges contained in the Second Amended Indictment, and to file a preliminary motion pursuant to Rule 72 in respect of the Second Amended Indictment, if the Prosecution is granted leave to amend the indictment.43
This does not indicate, however, which proposed amendments the Prosecution considers new, nor does it identify any supporting material regarding such charges. Moreover, the Reply does not address the Accused’s assertion that the Second Amended Indictment fails to satisfy Rule 50(A)(ii). In light of this, the Trial Chamber ordered the Prosecution to “(a) specify which of the proposed amendments it concedes to be new charges within the meaning of the Tribunal’s jurisprudence, and (b) identify supporting material for those new charges, thus enabling a disposition of the Motion pursuant to the requirements of Rule 50(A)(ii).”44
16. The Prosecution answered that Order by filing the “Prosecution’s Clarification Concerning ‘New Charges’ and Submission of Supporting Material” (the “Prosecution’s Clarification”), along with a Confidential Annex containing supporting material that the Prosecution states had been submitted to both the Defence and the Judge who confirmed the prior indictment.45 The Accused declined to respond to the Prosecution’s Clarification.46 The Clarification alternates between phrases such as “[some] amendments... do constitute ‘new charges,’”47 and “ [some] counts... may be considered to be ‘new charges.’”48 Despite this ambiguity as to whether the Prosecution is actually conceding that certain allegations levy new charges, given that the Trial Chamber’s Order directed the Prosecution to “specify which of the proposed amendments it concedes to be new charges,” the Chamber considers that all of the amendments identified in the Prosecution’s Clarification are conceded to raise new charges. The Prosecution identifies two new factual allegations, and five counts of the proposed indictment, as constituting new charges. These charges are set out in the following three paragraphs.
17. First, the Prosecution concedes that “the addition of the words ‘and the destruction of houses’ to paragraph 4(e) of the Proposed Second Amended Indictment may be considered to constitute a ‘new charge.’”49 Paragraph 4(e) falls under Count One of the new indictment, which charges the Accused with Persecutions, a crime against humanity. Having reviewed the supporting material in the Prosecution’s Confidential Annex, the Trial Chamber is satisfied that, pursuant to Rule 50(A)(ii), “there is evidence which satisfies the [prima facie] standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment.” Given that the destruction of houses is a newly-alleged act upon which an accused might be found guilty of the crime of Persecutions, the Accused must have an opportunity to plead to this alleged crime.50 The Trial Chamber notes that the Accused should be asked to plead to the crime of Persecutions only with respect to the alleged destruction of houses; the Accused has already entered a plea to Count One with respect to the other factual averments contained therein.51
18. Second, the Prosecution identifies the following new allegation as raising a new charge:
A group of armed men, including Milan Lukic, Sredoje Lukic and Milan Susnjar (also known as “Laco”) arrived at the Memic house, ordered the people in the group to hand over their money and valuables, subjected them to a strip search and then left the house, instructing the group to remain in the Memic house overnight.52
This text appears in paragraph seven of the Second Amended Indictment, which falls under Counts Eight, Nine, Ten, Eleven and Twelve. Counts Eleven and Twelve charge the Accused with committing, respectively, Inhumane Acts, a crime against humanity, and Cruel Treatment, a violation of the laws or customs of war. Having reviewed the supporting material in the Prosecution’s Confidential Annex, the Trial Chamber is satisfied that this proposed amendment satisfies the requirements of Rule 50( A)(ii). Given the fact that the Accused could be convicted of Count Eleven or Count Twelve, or both, if found to have committed the newly-alleged acts above, he must have the chance to enter pleas. When he does, he should be asked to enter pleas to the counts only with respect to the acts alleged in the passage quoted above.
19. Third, the Prosecution concedes that Counts Five,53 Eight,54 Twelve,55 Thirteen56 and Seventeen57 of the Second Amended Indictment are new. The Chamber is satisfied that the Prosecution’s Confidential Annex contains adequate supporting material for these counts. Given that they are concededly new, and that the acts alleged in conjunction with them could support convictions, the Accused must have an opportunity to plead to them.
20. Anticipating a ruling that the Second Amended Indictment levies new charges, the Accused argues that granting the Motion to Amend the Indictment would trigger a prejudicially-long period of time to lodge objections.58 As the Prosecution notes,59 however, giving an accused extra time to file additional challenges to an indictment is generally prejudicial only if trial is imminent. The Trial Chamber in Prosecutor v. Naletilic and Martinovic stated, for example, that “the amendment [to the indictment there] has certainly not delayed the trial of the accused, which is not yet scheduled to begin.”60 Thus “ considering that pre-trial proceedings in this case have just begun, so [that] amending the indictment at this stage, even if it should include new charges, will neither deny the Accused an adequate opportunity to prepare his defence nor cause undue delay,”61 the Trial Chamber finds that giving the Accused additional time to file challenges to the Second Amended Indictment will not unfairly prejudice the Accused. The Accused’s argument on this point is therefore rejected.
21. Finally, the Accused contends that the Prosecution has not adequately pleaded the mens rea for the charged crimes.62 As this Trial Chamber has stated, “[w]here the state of mind with which the accused carried out his alleged acts is relevant, the Prosecution must plead either (i) the relevant state of mind as a material fact... or (ii) the facts from which the relevant state of mind is to be inferred.”63 In Count One of the Second Amended Indictment, the Prosecution alleges that the Accused, “with specific intent to discriminate on political, racial or religious grounds, committed the crime of persecutions and, with awareness of the discriminatory intent of other perpetrators, aided and abetted in the execution of the crime.”64 This is an adequate pleading of the state of mind required for Persecutions,65 and although none of the Second Amended Indictment’s remaining 20 counts explicitly pleads a requisite state of mind, the Prosecution notes in its Motion to Amend the Indictment that it “has pleaded... the facts from which the mens rea of the other alleged crimes may be inferred.”66 Under the jurisprudence of the Tribunal cited above, this is acceptable. The Accused’s argument on this point is therefore rejected.
22. For the reasons above, pursuant to Article 19 of the Statute and Rules 50, 54 and 127 of the Rules, the Motion to Amend the Indictment is GRANTED. In addition, the Trial Chamber ORDERS as follows:
(1) leave to file the Prosecution’s Reply to Defence Response to Motion to Amend Indictment is GRANTED and the Chamber accepts the reply;
(2) the Defence Motion, Prosecution’s Response to Defence Motion Objecting to the Form of the Indictment and the Defence Counsel’s Application for Leave to Reply to Prosecution’s Response to Defence Motion Objecting to the Form of the Indictment are all DISMISSED without prejudice;
(3) the Accused may file, within 30 days of the filing of this Decision,
(a) preliminary motions pursuant to Rule 72 in respect of the new charges; and
(b) challenges to the Second Amended Indictment that
(i) were contained in the Defence Motion, and
(ii) apply to the Second Amended Indictment, and
(iii) have not been disposed of in this Decision.
The Prosecution shall have 14 days from the filing of any such challenges to file a response, if any;
(4) an appearance before Judge Bonomy, at which the Accused will be asked to plead to the indictment’s new charges, is hereby scheduled for Monday, 13 February 2006, at 2:30 p.m. in Courtroom II.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this first day of February 2006.
At The Hague,
[Seal of the Tribunal]