Amendment

Notion(s) Filing Case
Decision on Amendment of the Indictment - 12.05.2005 MUVUNYI Tharcisse
(ICTR-00-55A-AR73)

22. […] While confirming the principle that to avoid prejudice to an accused in the preparation of the defence case the Prosecution must plead the material facts in the indictment, it does not follow that a Trial Chamber must allow a Prosecution application to amend an indictment to expand the material facts alleged pre-trial if in all the circumstances prejudice would accrue to the accused by those amendments.  The fact that the expansion of counts charged may be derived from material already disclosed to the Accused also does not automatically nullify prejudice to the Accused.  It is to be assumed that an Accused will prepare his defence on the basis of material facts contained in the indictment, not on the basis of all the material disclosed to him that may support any number of additional charges, or expand the scope of existing charges.  In either circumstance, when a complaint is made on appeal about a failure to plead material facts, or objection is made to a Prosecution application to amend to add material facts or new charges, the issue is whether the accused has been or will be prejudiced.

38. While the Appeals Chamber has determined that the Trial Chamber erred in classifying some of the proposed amendments as new charges, this does not necessarily mean that the Trial Chamber erred in the decision that it reached to reject the proposed amendments.  As the Trial Chamber acknowledged in its decision, new charges do not prohibit a Chamber from granting the Prosecution leave to amend an indictment.  Conversely, the fact that an amendment to an indictment does not amount to a new charge does not automatically obligate the Trial Chamber to permit it.  Rule 50 (A), which governs the permissibility of amendments to indictments, does not distinguish between amendments that add new charges and those that merely add or clarify material facts.  Rather, whether to permit either kind of indictment is a multi-factor discretionary decision for the Trial Chamber.  In this case, the Trial Chamber’s decision did not turn principally on the fact that new charges were involved, but rather on the prejudice to the Accused that would result from permitting the amendments and on the Prosecution’s failure to request the amendments at a date consistent with due diligence.  Thus, the Appeals Chamber’s conclusion that the Trial Chamber incorrectly categorised some of the amendments as new charges does not require setting aside the Trial Chamber’s decision; instead, the Appeals Chamber must assess the issues of prejudice and prosecutorial diligence.

 

51. […] As the Appeals Chamber held in the Karemera case, “although Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason”.[1]  Under some circumstances, the Prosecution might justifiably wait to file an amendment while it continues its investigation so as to determine whether further evidence either strengthens its case or weakens it.  […] Where the Prosecution has delayed unnecessarily in bringing particular allegations, and this delay has caused prejudice to the defendant, it is within the Trial Chamber’s discretion to find that this delay constitutes sufficient ground to refuse an amendment to an indictment.[2]

[1]     Prosecutor v Karemera, No ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 December 2003 Denying Leave to File An Amended Indictment, 19 December 2003, para. 20.

[2]     The Trial Chamber may consider lack of prosecutorial diligence as a factor supporting denial of an amendment even if no bad faith is demonstrated on the part of the prosecution – that is, even if the prosecution did not deliberately delay the amendment in order to seek a strategic advantage. See id. at para. 23 (holding that in such circumstances, the “Prosecution’s failure to show that the amendments were brought forward in a timely manner must be “measured within the framework of the overall requirement of the fairness of the proceedings”).

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

296. Therefore, in alleging the distribution of weapons in Rushashi, the Prosecution Pre-Trial Brief, the annexed witness summaries, and the Prosecution’s Opening Statement did not simply add greater detail to a more general allegation already pleaded in the Amended Indictment. Rather, these submissions expanded the charges specifically pleaded in the Amended Indictment by charging an additional incident of weapons distribution at a new location. This is an impermissible, de facto amendment of the Amended Indictment.

297. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in finding that, as a matter of law, the Prosecution’s post-indictment communications could cure the failure to include the allegation of the Rushashi weapons distribution in the Amended Indictment and that they in fact did so. […]

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

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.[1] […] Accordingly, the Referral Bench had no obligation in this case to consider extrinsic evidence with regard to the Appellant’s notoriety or to his possible involvement in criminal acts other than those charged in the Second Amended Indictment.

See also “Confirmed Indictment only” supra.

[1] See Referral Decision, paras 16, 26-31.

Download full document
ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

15. The Appeals Chamber finds that Karemera and Ngirumpatse have failed to demonstrate a discernible error in the Trial Chamber’s order in relation to the amendment of the Indictment. It is clear from the Indictment of 23 August 2010, which implements the Impugned Decision, that Nzirorera is no longer an accused in the case. While his name continues to appear in the Indictment of 23 August 2010, his name has been removed from the title and the counts, and his status is now no different from other alleged members of the joint criminal enterprise who are not charged in this case. […]

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] While Nzirorera is no longer an accused in the case, it is still open for the Prosecution to allege that he was a member of the joint criminal enterprise. This being the case, it is proper for the Prosecution to name him in the Indictment while making clear that he is not one of the accused. In this regard, the Appeals Chamber notes that, contrary to Ngirumpatse’s submission, in other cases where proceedings have been terminated in relation to one accused due to that accused’s death but where joint criminal enterprise was pleaded, the deceased accused’s name has continued be referred to in the Indictment.[2]

[1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24.

[2] See, e.g., Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, in which Momir Talić was separated from the case and later died, but his name continued to appear in the Indictment (see Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002 (“Brðanin and Talić Decision of 20 September 2002”); Brðanin Sixth Amended Indictment [Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, Sixth Amended Indictment, 9 December 2003]); Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, in which Vlajko Stojiljković died but his name continued to appear in the Indictment (see Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-PT, Third Amended Indictment, 19 July 2002, p. 1; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Third Amended Joinder Indictment, 21 June 2006, paras. 14, 20, 48, 61). See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, in which charges against Momir Nikolić and Dragan Obrenović were dismissed following their guilty pleas and both their names continued to appear in the amended indictment (see Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Prosecution’s Motion for Leave to File Third Amended Indictment, 17 June 2003; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Amended Joinder Indictment, 26 May 2003).

Download full document
Notion(s) Filing Case
Decision on Leave to Appeal (Defence) - 30.11.2001 GALIĆ Stanislav
(IT-98-29-AR72)

14. […] If statements in an indictment are to be altered, either a completely new document must be filed in which the alterations are incorporated or (with the leave of the Chamber) the indictment itself must be altered by some means, such as writing the alteration into the document or crossing out something in that document.  No-one is permitted to alter a document filed in the Registry of the Tribunal (a fortiori an indictment) without leave being granted by the appropriate authority.  Whatever the nature of the alteration made, it would therefore necessarily be an amendment to the indictment itself. […]  

Download full document
Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

Čermak argued that by considering the amendment of the indictment together with the issue of joinder the Trial chamber skipped the indictment amendment procedure, preventing the defence from being heard and opposing the process of the amendment, and therefore violates the principle of a fair trial. The Appeals Chamber, however, held at para. 11:

11. […] First, Čermak fails to provide a basis in the Rules or in the jurisprudence of the International Tribunal in support of the proposition that it is required procedure for a Trial Chamber to consider amendments to the indictment first, separate from deciding on the issue of joinder. Furthermore, Čermak fails to demonstrate how addressing both issues together in one decision inevitably leads to a Trial Chamber skipping the appropriate analysis under Rule 50 of the Rules for determining whether proposed amendments to an indictment should be granted under the principle of a fair trial. […] 

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

At para. 12, the Appeals Chamber held that the Trial Chamber originally assigned to a case must not necessarily be the Trial Chamber authorized to consider any proposed amendments to the indictment:

12. […] A Trial Chamber is fully capable of properly applying the principles of Rule 50 and determining whether amendments to the indictment should be granted, and it is irrelevant to that purpose whether or not the Trial Chamber considering proposed amendments was the Trial chamber originally assigned to the case.

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

13. Statutes which make alterations in procedure regulate secondary rather than primary conduct; they apply to existing proceedings even though these were commenced before the statutes were made and in that sense may be regarded as retrospective. By contrast, there is a presumption that enactments affecting substantive rights are intended to be prospective. This presumption is however a rebuttable one; if it is rebutted, an amendment, though affecting substantive rights, applies retrospectively (barring any impediment of a constitutional nature) and so can affect existing proceedings.

14. Evidence capable of rebutting the presumption is furnished through Rule 6(C), which states that “an amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case”. It is true that a provision stipulating that a statute is to commence at a certain time does not necessarily mean that the statute is to govern previous conduct into which an inquiry is pending at that time. But it depends on the language of the commencement provision. Here there is one commencement provision; it applies to amendments of all kinds. Therefore, every amendment enters into force “immediately”, i.e., whether substantive or procedural, it applies to all cases of which the Tribunal is then or may in future be seised, the sole qualification being that the amendment, of whatever kind, must not “operate to prejudice the rights of the accused in any pending case”. So, the real and only question under the Rules, as they have been crafted, is whether the new amendment to Rule 15bis will operate to prejudice the rights of the Appellants.

[1] See for example, Rex v.Chandra [1905], 2 K.B.335 ; and Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).

[2] See Turnbull v. Forman (1885) 15 Q.B.D 234, per Bowen L.J at p.238: “Where the legislature mean to take away or lessen rights acquired previously to the passing of an enactment, it is reasonable to suppose that they would use clear language for the purpose of doing so, or, to put the same thing in a somewhat different form, if the words are not unequivocally clear to the contrary, a provision must be construed as not intended to take away or lessen existing rights. A converse rule is that, where the legislature is dealing with matters of procedure as distinguished from substantive rights, the same presumption does not apply”.

[3] The presumption was not rebutted in Landgraf v. USI Film Products, 511 U.S. 244 (1994), which contains a number of helpful statements on the subject.

Download full document
ICTR Rule Rule 6(C) ICTY Rule Rule 6(D)
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

11. […] [T]he difference between an “amended” indictment and a “new” indictment is not useful.  It is true that if an amended indictment includes new charges, it will require a further appearance by the accused in order to plead to the new charges under Rule 50(B). […] Nothing in Rule 50 prevents the prosecution, as a general matter, from offering amendments that are substantial.

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

12.  [] The Prosecution is entitled to decide that its theory of the accused’s criminal liability would be better expressed by an amended indictment.  Even if the trial can proceed on the basis of the Current Indictment, the Prosecution is not thereby precluded from seeking to amend it.

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

13. The third point considered by the Trial Chamber was delay.  This factor arises from Article 20(4)(c) of the Statute of the International Tribunal, which entitles all accused before the International Tribunal to be “tried without undue delay,” and is unquestionably an appropriate factor to consider in determining whether to grant leave to amend an indictment.  Guidance in interpreting Article 20(4)(c) can be found in the ICTY case of Prosecutor v. Kovačević,[1] in which the Trial Chamber refused amendment of an indictment on grounds that included undue delay.  The ICTY Appeals Chamber framed the question as “whether the additional time which the granting of the motion for leave to amend would occasion is reasonable in light of the right of the accused to a fair and expeditious trial.”[2]  The ICTY Appeals Chamber noted that the requirement of trial without undue delay, which the Statute of the ICTY expresses in language identical to Article 20(4)(c) of the Statute of the International Tribunal,[3] “must be interpreted according to the special features of each case.”[4]  Additionally, the specific guarantee against undue delay is one of several guarantees that make up the general requirement of a fair hearing, which is expressed in Article 20(2) of the Statute of the International Tribunal and Article 21(2) of the ICTY Statute.[5]  “[T]he timeliness of the Prosecutor’s request for leave to amend the Indictment must thus be measured within the framework of the overall requirement of the fairness of the proceedings.”[6] 

14. Kovačević stands for the principle that the right of an accused to an expeditious trial under Article 20(4)(c) turns on the circumstances of the particular case and is a facet of the right to a fair trial.  This Appeals Chamber made a similar point recently when it stated, albeit in a different context, that “[s]peed, in the sense of expeditiousness, is an element of an equitable trial.”  Trial Chambers of the International Tribunal have also used a case-specific analysis similar to that of Kovačević in determining whether proposed amendments to an indictment will cause “undue delay.”

15 […] [A] Trial Chamber must also examine the effect that the Amended Indictment would have on the overall proceedings.  Although amending an indictment frequently causes delay in the short term, the Appeals Chamber takes the view that this procedure can also have the overall effect of simplifying proceedings by narrowing the scope of allegations, by improving the Accused’s and the Tribunal’s understanding of the Prosecution’s case, or by averting possible challenges to the indictment or the evidence presented at trial.  The Appeals Chamber finds that a clearer and more specific indictment benefits the accused, not only because a streamlined indictment may result in shorter proceedings, but also because the accused can tailor their preparations to an indictment that more accurately reflects the case they will meet, thus resulting in a more effective defence.

[1] No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998 (“Kovačević”).

[2] Ibid., para. 28.

[3] Statute of the ICTY, Art. 21(4)(c).

[4] Kovačević, para. 30.

[5] Ibid., para. 30.

[6] Ibid., para. 31.

[7] Prosecutor v. Nyiramasuhuko, Joint Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis (D), 24 September 2003, para. 24.

[8] E.g., Prosecutor v. Kanyabashi, No. ICTR-96-15-T, Reasons for the Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 10 September 1999,  paras. 23-25; Prosecutor v. Musema, No. ICTR-96-13-T, Decision on the Prosecution’s Request for Leave to Amend the Indictment, 6 May 1999, para. 17.

Download full document
ICTR Statute Article 20(4)(c) ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

20. […] [A]lthough Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason.  The Prosecution cannot earn a strategic advantage by holding an amendment in abeyance while the defence spends time and resources investigating allegations that the Prosecution does not intend to present at trial.  In this regard, it is worth recalling that a substantial delay will be considered undue “if it occur[s] because of any improper tactical advantage sought by the prosecution.”   Strategic efforts to undermine the conduct of proceedings cannot be tolerated, especially if designed to disadvantage the ability of the Defence to respond to the Prosecution’s case.  

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

17. […][T]he determination whether proceedings will be rendered unfair by the filing of an amended indictment must consider the risk of prejudice to the accused. 

See also para. 28.

Download full document
ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR50)

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.

[…]

19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

[1] [Prosecutor v. Karemera et al., No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003 (“Karemera”)]], para. 19.

[2] Ibid., para. 13 (quoting Statute of the International Tribunal, Art. 20(4)(c)).

[3] See ibid., paras. 15, 20-30; Prosecutor v. Kovačević, No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998, paras 29, 31.

[4] See Karemera, para. 27.

[5] See ibid., para. 28. 

Download full document
ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c) ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

450. The Appeals Chamber notes that the requirement in Rule 50(A)(ii) of the Rules for granting leave to amend an indictment was only introduced in the Rules on 15 May 2004, following the 14th plenary session held on 23 and 24 April 2004.[1] According to this amendment, trial chambers shall examine each of the counts and any supporting materials the Prosecution may provide to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the accused. The Appeals Chamber also observes that, prior to the enactment of Rule 50(A)(ii) of the Rules, the practice of the trial chambers of the Tribunal regarding the need to establish a prima facie case before granting leave to amend an indictment was not uniform. In several cases, trial chambers found that granting leave to amend an indictment was a matter for their discretion and only required the Prosecution to establish the factual and legal basis in support of its motion to amend.[2] In other cases, trial chambers examined whether prima facie evidence supported the motion to amend.[3] When seised with appeals against decisions related to the amendment of the indictment prior to the modification of Rule 50 of the Rules, the Appeals Chamber did not provide guidance on this issue.[4] Against this background, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, finds Nyiramasuhuko’s allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the new counts to be without merit and deems it unnecessary to discuss Nyiramasuhuko’s remaining arguments premised on this alleged error of law.

[1] See Amendments – 14th Plenary Session (23-24 April 2004), pp. 6, 7.

[2] See, e.g., The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Decision on Prosecutor’s Motion to Correct the Indictment Dated 22 December 2000 and Motion for Leave to File an Amended Indictment, 25 January 2001, paras. 26, 40; The Prosecutor v. Éliezer Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000, paras. 43-45; The Prosecutor v. Jean Bosco Barayagwiza, Case No. ICTR-97-19-I, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 11 April 2000, pp. 3, 4; The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, signed 5 November 1999, filed 10 November 1999, paras. 7, 14, 15; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case Nos. ICTR-97-34-I & ICTR-97-30-I, Decision on the Prosecutor’s Motion to Amend the Indictment, 8 October 1999 (“Kabiligi8 October 1999 Decision”), paras. 42, 43.

[3] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on the Prosecutor’s Motion for Leave to Amend the Indictment, 13 February 2004, para. 35 (originally filed in French, English version filed on 14 May 2004); The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, dated 6 May 1999, signed 24 May 1999, filed 25 May 1999, para. 19. See also Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-PT, Decision on Prosecution’s Motion to Amend the Amended Indictment, signed 12 February 2004, filed 13 February 2004, para. 8; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-PT, Decision on Form of Indictment, 17 September 2003, paras. 35, 36.

[4] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 (“Bizimungu et al. 12 February 2004 Appeal Decision”). See also Nahimana et al. Appeal Judgement, paras. 390-393. This issue was subject to disagreement among the judges of the Tribunal. See Bizimungu et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar.

Download full document
ICTR Statute Article 18 ICTY Statute Article 19 ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1043.            The Appeals Chamber observes that Rule 6(C) of the Rules provides that an amendment of the Rules shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case.[1] Accordingly, the pertinent question to be addressed when an amended rule becomes operative in on-going proceedings is whether the amendment will operate to prejudice the rights of the accused.[2] […]

[1] The Appeals Chamber notes that it has previously stated that every amendment enters into force immediately and, “whether substantive or procedural, […] applies to all cases of which the Tribunal is then or may in future be seised, the sole qualification being that the amendment, of whatever kind, must not ‘operate to prejudice the rights of the accused in any pending case’.” See Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 14.

[2] See Appeal Decision on Continuation of Trial, para. 14.

Download full document
ICTR Rule Rule 6(C)
Notion(s) Filing Case
Decision Regarding Pleadings in Appeal - 24.11.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

21.  Rule 6(D) of the Rules provides that amendments to the Rules “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case”.  The Appeal Chamber considers that the same principle applies to changes in the procedural requirements set out by the Tribunal’s practice directions.  […]

[1] See Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-21-1-T, Decision in the Matter of Proceedings under Rule 15 bis, 24 September 2003, paras. 13-14; Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, 12 August 1997, paras. 12-13.

Download full document
ICTR Rule Rule 6(C) ICTY Rule Rule 6(D) Other instruments ICTY Practice Directions