Case No. IT-03-67-PT

IN TRIAL CHAMBER II

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

Registrar:
Mr. Hans Holthuis

Decision of:
30 November 2004

PROSECUTOR

v.

VOJISLAV SESELJ

____________________________________

DECISION ON EXTENSION OF TIME TO FILE A RESPONSE

____________________________________

The Office of 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

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");

BEING SEISED OF the "Prosecution’s Motion for Leave to Amend the Indictment with Confidential and Ex Parte Supporting Materials" ("Motion to Amend the Indictment"), filed by the Office of the Prosecutor ("Prosecution") on 22 October 2004, and of the "Submission No. 48" ("Request for Extension of Time") filed by the Accused Vojislav Šeselj ("Accused") on 5 November 2004, wherein he requests an extension of time to file a response to the Motion to Amend the Indictment;

NOTING that, in the Request for Extension of Time, the Accused notifies the Trial Chamber that he will be in a position to respond to the Motion to Amend the Indictment three days after he receives, "in full and in the Serbian language", the following documents, parts of which the Prosecution cites in its Motion to Amend the Indictment:

1. Prosecutor v Nahimana et al, Case ICTR-99-52-T, Judgement, 3 December 2003 ("Document No. 1");
2. Prosecutor v Ruggiu, Case ICTR-97-32-I, Judgement and Sentence, 1 June 2000 ("Document No. 2");
3. Prosecutor v Blaskic, Case IT-95-14-A, Judgement, 29 July 2004 ("Document No. 3");
4. Prosecutor v Deronjic, Case IT-02-61-PT, Decision on Form of the Indictment, 25 October 2002 ("Document No. 4").

NOTING that the procès-verbal of 5 November 2004 confirmed that the Accused received from the Registry the translation into the Bosnian, Croat or Serb language ("B/C/S") of Document No. 4 in its entirety;

CONSIDERING that the aforesaid document was translated into B/C/S in accordance with the standard practice of the Tribunal;¹

NOTING that the procès-verbal of 5 November 2004 also showed that the Accused refused to accept the English versions of Document No. 1 and of Document No. 2;

CONSIDERING that the aforesaid documents are two Judgements of the International Criminal Tribunal for Rwanda, the Statute of which provides that “[t]he working languages of the International Tribunal for Rwanda shall be English and French”;²

CONSIDERING that the part of the paragraph from Document No. 1 quoted by the Prosecution in the Motion to Amend the Indictment was translated into B/C/S together with the rest of the Motion to Amend the Indictment, and provided to the Accused in that language;³

CONSIDERING that the Motion to Amend the Indictment makes reference in a footnote to paragraph 22 of Document No. 2, which states as provided in the attached footnote,⁴ and of which the Accused will in this way receive a translation into B/C/S immediately at the same time as this decision is filed and given to him;

CONSIDERING further that the Accused is not as of right entitled, under the Statute of the Tribunal ("Statute")⁵ or under the Rules of Procedure and Evidence ("Rules"),⁶ to have these two documents translated in their entirety into B/C/S;

CONSIDERING therefore that the fact that Documents No.1 and 2 are not translated in their entirety into B/C/S does not cause the Accused actual prejudice for the purpose of responding, if he so chooses, to the Motion to Amend the Indictment, as he has been or will be provided with the translations into B/C/S of the relevant parts of the aforesaid documents;

NOTING that the Trial Chamber has been informed by the Registry that the translation of Document No. 3 in its entirety into B/C/S, to which the Accused is entitled in accordance with the standard practice of the Tribunal, will become available sometime in December 2004;

CONSIDERING, however, that the part of the paragraph of the aforesaid document quoted by the Prosecution in the Motion to Amend the Indictment was translated into B/C/S together with the rest of the Motion to Amend the Indictment, and provided to the Accused in that language and, moreover, it is, save for negligible differences, an exact reproduction of part of paragraph 31 of Document No. 4, which the Accused has received translated in its entirety into B/C/S;⁷

CONSIDERING therefore that, as a result, the fact that the translation of Document No. 3 in its entirety into B/C/S is not yet available to the Accused does not cause him actual prejudice for the purpose of responding, if he so chooses, to the Motion to Amend the Indictment;

NOTING, finally, that, in the Request for Extension of Time, the Accused states that he has not yet received the confidential and ex parte Supporting Materials to the Motion to Amend the Indictment;

NOTING that the Accused is fully aware that the reason why he has not received the Supporting Materials is precisely because they were filed in an ex parte manner by the Prosecution;

CONSIDERING, however, that in the Motion to Amend the Indictment the Prosecution did not provide any justification for filing the Supporting Materials in an ex parte manner but in actual fact stated that if the amendments to the Indictment for which it seeks leave were finally approved by the Trial Chamber, the Accused would be supplied with the said Supporting Materials;⁸

CONSIDERING that Rule 50(A)(c) provides that, after the assignment of the case to a Trial Chamber, the Prosecution may amend an indictment with the leave of that Trial Chamber or a Judge of that Chamber, after having heard the parties;

CONSIDERING furthermore that Rule 50(A)(ii) provides that 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;

CONCLUDING therefore that, unless orders for non-disclosure apply, if the Prosecution seeks to amend an indictment after the assignment of a case to a Trial Chamber an accused must be in a position to challenge whether the supporting material adduced in support of an amendment to an indictment does in actual fact support such an amendment;

CONSIDERING furthermore that the Prosecution has not adduced any cogent reasons why the Supporting Materials should be kept from the Accused until the amendments to the Indictment for which it seeks leave are approved;

CONSIDERING that Rule 126 bis establishes that “[u]nless otherwise ordered by a Chamber either generally or in the particular case, a response, if any, to a motion filed by a party shall be filed within fourteen days of the filing of the motion”;

FOR THE FOREGOING REASONS

PURSUANT TO Rule 54 and 126 bis of the Rules of Procedure and Evidence, HEREBY

1. ORDERS the Prosecution to provide the Supporting Materials to the Accused by filing them with the Registry within seven (7) days of the filing of this decision, unless within those seven days it demonstrates good cause for not doing so;
2. REMINDS the Accused that, should he wish to respond to the Motion to Amend the Indictment, he has fourteen (14) days from the date of the aforesaid filing of the Supporting Materials, unless the Prosecution succeeds in showing good cause as set out above;
3. DISMISSES as a result the Request for Extension of Time;

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

Dated this 30th day of November 2004,
At The Hague
The Netherlands

_____________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]