|Referral Decision - 23.02.2006||
Download full document
In the present case, the Referral Bench decided upon a motion for referral on the basis of a proposed amended indictment which was challenged by the Accused.
The Referral Bench had considered that it could base its decision on the proposed amended indictment without prejudice to the Accused, apparently because it found that the indictment was based on the same facts but was only reducing the charges. The Appeals Chamber considered that this was an error of law as the indictment was not the operative indictment:
14. While the Impugned Decision was taken on the basis that no prejudice would accrue to the Appellant, the Appeal Chamber considers that the fact that the Referral Bench based the Impugned Decision on an indictment, which was subject to challenge by the Appellant before the Trial Chamber and yet to be accepted by the Trial Chamber as the operative indictment, was an error of law invalidating the Impugned Decision […].
The Appeals Chamber gave two reasons: (1) the Referral Bench pre-judged the Trial Chamber’s decision on the proposed amended indictment (para. 14); (2) in BIH, criminal prosecution can only be initiated once the indictment has been confirmed by the International Tribunal (paras 15-17).
|ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis|
|Decision on Referral - 11.07.2007||
LUKIĆ & LUKIĆ
12. The Appeals Chamber sees no error in the Referral Bench’s use of the currently operative indictment at the time of its decision (in this case, the Second Amended Indictment) in evaluating gravity and level of responsibility. Indeed, the Appeals Chamber’s decisions in Prosecutor v. Mitar Rašević and Savo Todović plainly support this approach. In that case, the Appeals Chamber indicated that the Referral Bench should rely on the most recently confirmed version of the indictment, even where the Prosecution sought and received leave to use this version after the appointment of the Referral Bench.
17. The Appeals Chamber agrees with the Appellant that, in assessing the Appellant’s level of responsibility, the Referral Bench relied solely on the factual allegations made in the Second Amended Indictment. But the Appeals Chamber disagrees with the Appellant’s suggestion that this approach was wrong. Existing case law clearly endorses the approach taken by the Referral Bench. Indeed, in Prosecutor v. Gojko Janković, the Appeals Chamber explicitly rejected the accused’s argument that the Trial Chamber should have considered allegations that were not in the indictment in assessing the gravity of his alleged crimes. The Appeals Chamber declines to revisit its existing approach, which is supported both by the text of the Rules and by sound policy reasons. […] Were the Referral Bench required to look beyond the four corners of an indictment, it would find itself in the untenable position of making speculation upon speculation with regard to whether there are other possible charges that could be brought against the accused, whether these charges may in fact be brought, and how these possible charges might relate to the issues of gravity and level of responsibility. Thus, at least in the absence of a showing that the Prosecution has withheld charges against an accused in order to promote the possibility of referral, the Referral Bench appropriately assesses gravity and level of responsibility solely in light of the allegations in the operative indictment. […]
 Prosecutor v. Savo Todović, Case No. IT-97-25/1-AR11bis.1, Decision on Rule 11bis Referral, 23 February 2006 (“Todović Decision of 23 February 2006”), paras 12-14, 18-19; Todović Decision of 4 September 2006, paras 3-4, 6, 13.
 Todović Decision of 23 February 2006, paras 18-19 (ordering the Referral Bench to suspend its proceedings until the Trial Chamber had resolved whether to accept proposed amendments to the indictment); Decision of 4 September 2006, paras 4, 6, 13 (seeming to view the most recently confirmed indictment as the relevant one for the Rule 11bis proceedings, but accepting that the differences between this indictment and the prior one were not material enough to justify a revised analysis based on this indictment).
 See Referral Decision [Decision on Referral of Case Pursuant to Rule 11bis with Confidential Annex A and Annex B”, filed on 5 April 2007], paras 16, 26-31.
 Prosecutor v. Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral under Rule 11bis, 7 April 2006 (“Mejakić et al. Appeal Decision on Referral”), para. 22 (“When assessing the gravity of the crimes charged against the Appellants and their level of responsibility, the Referral Bench properly considered only those facts alleged in the Indictment before reaching a determination concerning the appropriateness of referring the case to a national jurisdiction”).
 Janković Appeal Decision on Referral [Prosecutor v. Gojko Janković, Case No. IT-96-23/3-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005], para. 21.
|ICTR Rule Rule 11bis ICTY Rule Rule 11bis|