THE TRIAL CHAMBER

MAJORITY DECISION ON THE PROSECUTION’S APPLICATION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL AGAINST THE DECISION ON THE PROSECUTION’S REQUEST FOR LEAVE TO AMEND THE INDICTMENT AGAINST SAMUEL HINGA NORMAN, MOININA FOFANA AND ALLIEU KONDEWA

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Hon. Judge Benjamin Mutanga Itoe, Presiding Judge, Hon. Judge Bankole Thompson and Hon. Judge Pierre Boutet;
NOTING the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, rendered on 20 May 2004 (“Decision”);

SEIZED of the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (“Application”) filed by the Office of the Prosecutor (“Prosecution”) on 4 June 2004;

NOTING the Joint Response to the Application filed by Defence Counsel for Moinina Fofana and Allieu Kondewa on 14 June 2004 (“Joint Response”);[1]

NOTING the Reply to the Joint Response filed by the Prosecution on 18 June 2004 (“Reply”); [2]

NOTING THE SUBMISSIONS OF THE PARTIES

A. The Prosecution’s Application

1. Pursuant to Rule 73(B) of the Rules of Procedure and Evidence (“Rules”), the Prosecution seeks leave to appeal against the Decision of this Chamber refusing the Prosecution’s Request for Leave to Amend the Indictment Against Samuel Hinga Norman, Moinina Fofana and Alieu Kondewa on the basis of exceptional circumstances and irreparable prejudice.
2. On the issue of exceptional circumstance, the Prosecution submits that the different opinions expressed by the judges in the majority decision and the dissenting opinion amount to exceptional circumstances, as this fact illustrates the difficult legal and factual issues raised by the Request to Amend the Indictment. [3]
3. The Prosecution further submits that it is obliged to prosecute to the “full extent of the law”, which it could not do if the Decision denying leave to amend the indictment was allowed to stand. It argues that the high profile nature of gender based crimes under international law constitutes another exceptional circumstance.[4]
4. The Prosecution also states that, as a consequence of the denial Decision, the possibility of undermining the objectives of the Special Court exists, as the Prosecution is unable to establish a complete and accurate historical record of the crimes committed during the armed conflict in Sierra Leone and cannot acknowledge the right of the victims to have crimes committed against them characterized as gender based crimes.[5]
5. As regards irreparable prejudice, the Prosecution submits that although validated by the evidence in its possession, the Decision causes irreparable prejudice to the Prosecution as it precludes the Prosecution from prosecuting sexual violence acts committed by CDF members.[6]
6. It contends further that the denial of the amendment sought also precludes the victims from having their crimes characterised as gender based crimes and impairs the remedies to which they are entitled[7], and that denying the amendment establishes impunity with respect to gender crimes, as it is highly improbable that they will ever be prosecuted under domestic jurisdiction for such crimes.[8]
7. It is also the Prosecution’s submission that an appeal will not create a delay of the proceedings, as the next session in the CDF-case will start in September only, giving the Appeals Chamber sufficient time to decide on this matter. If the amendment is granted, the Prosecution contends, the Trial Chamber is free to order that evidence pertaining to gender based crimes be presented towards the end of the Prosecution’s case, giving the Defence more than six months to prepare the cross examination of Prosecution witnesses.[9]
8. If granted leave to appeal, the Prosecution submits that it will argue that the Trial Chamber erred on various points. It asserts that contrary to the Decision by the Trial Chamber, the full investigations did not start two years ago,[10] but only in November 2002. Information obtained by the Prosecution prior to October 2003 were only indications of gender based crimes. In addition, the Prosecution submits that by assuming that the Prosecution had acted without due diligence in the conduct of its investigations of gender based crimes the Trial Chamber erred, as well. According to the Prosecution, obtaining evidence on gender based crimes necessitates much more time than collecting evidence concerning other crimes, especially regarding CDF victims because of the popular support for CDF.[11]
9. In conclusion, the Prosecution submits that the Trial Chamber misdirected itself as to the principle to be applied, when it held that “the rules relating to the detection and prosecution of these [gender based] offences are the same as those governing the other war crimes and international humanitarian offences”, and agrees with the view expressed by Judge Boutet in his Dissenting Opinion on the Decision, that the detection of evidence relating to gender crimes requires much more time and vigilance than the detection of other crimes.[12]

B. The Defence Response

10. The Defence argues that a dissenting opinion does not constitute exceptional circumstances, as the practice of appending dissenting opinions at international tribunals is standard.[13] It further argues that there is no obligation on the Prosecution to prosecute to “the full extent of the law”, and that if such an obligation really existed, the negotiation of plea agreements would not be possible before international criminal tribunals.[14]
11. The Defence Counsel for the 2nd and 3rd Accused submit that an argument that has been raised in the original motion cannot amount to irreparable prejudice, since the Trial Chamber will have weighed the argument in its decision.[15] In addition, it is the contention of the Defence that as the victims are not a party to the case, alleged impairment of victims’ remedies does not constitute “irreparable prejudice to a party”, as required by Rule 73(B).[16]
12. The Defence also submits that the Prosecution fails to present evidence in support of the distinction between the difficulties encountered in investigating alleged CDF gender-based crimes and those in RUF and AFRC [17], and the Defence stresses the fact that the Application for leave to amend the indictment was not timely filed, as this should have been done in October 2003.[18]

C. Prosecution’s Reply

13. In the reply, the Prosecution submits the contrary to the Defence Response, dissenting opinions to decisions on leave to amend an indictment have never happened at the ICTR and ICTY. The dissenting opinion shows the complexity of this issue which would benefit from a review by the Appeals Chamber. [19]
14. The Prosecution stresses that it is indeed obligated to prosecute to the “full extent of the law”, as established by decision of the ICTY and the ICTR[20] and that the possibility of plea bargaining does not nullify this obligation, and under international criminal law, a plea agreement operates only after the presentation of an Indictment which properly reflects the totality of the crimes allegedly committed by the Accused.[21]
15. Furthermore, the Prosecution submits that because of the different tests for the leave to amend an indictment and the leave to appeal a decision, an argument can be raised again if it proves the fulfilment of the peculiar conditions of Rule 73(B)[22], and reiterates that the objective of the Special Court to promote justice and reconciliation in Sierra Leone will not be met if the victims are not at the heart of the Court’s efforts.[23]
16. It also re-emphasises that the difficulties encountered in investigating CDF gender-based crimes are greater than for AFRC/RUF crimes due to the security risks faced by witnesses testifying against CDF members, submitts that the specific security risk for CDF witnesses was also acknowledged by this Chamber in its Decision on Protective Measures.[24]
17. In conclusion, the Prosecution reiterates that in May 2003 there were only indications of sexual violence, and cites as an example of such indications the following paragraph from a witness statement of this period:

“The only rule was that at 7 a.m. you had to meet them at the field at Base Zero, but during the night you could do what you want. Girls came from surrounding villages into base Zero, plenty of them. This was the only safe place in Talia. I know there was plenty of Gonnorea [sic] around there.”[25]

HAVING DELIBERATED THE CHAMBER DECIDES AS FOLLOWS:

Introduction

18. This is an application by the Office of the Prosecutor seeking leave to file an interlocutory appeal.

Order Requested

19. Specifically, the Prosecution seeks leave of the Chamber to file an interlocutory appeal against the Chamber’s Decision on the Prosecutor’s request for leave to amend the indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa.

Legal Basis for the Application

20. The Prosecution’s application is filed pursuant to Rule 73(B) of the Rules. According to Rule 73(B):

“Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders.”

Applicable Jurisprudence

21. In its most recent Decision[26] on the issue of interlocutory appeals where the Prosecution sought leave of the Trial Chamber to appeal interlocutorily against its Decision on the Motion for Concurrent Hearing of Evidence Common to cases SCSL-2004-15-PT and SCSL-2004-16-PT, the Chamber had cause to refer to one of its seminal decisions on the subject, to wit, the Decision on Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Motion for Joinder.[27] The Chamber noted that the Decision laid down the principles governing applications for leave to file interlocutory appeals. In that Decision, the Chamber stated emphatically that Rule 73(B) generally does not create a right to appeal against an interlocutory decision but renders it permissible only where leave is granted in exceptional circumstances. The Chamber cited with approval two passages from that Decision as representing the existing law on the subject. The first passage reads as follows:

“As a general rule, interlocutory decisions are not appealable and consistent with a clear and unambiguous legislative intent, this rule involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs of the test are clearly conjunctive and not disjunctive; in other words they must both be satisfied.”[28]

22. Suffice it to note that the Chamber sees no compelling reason, at this point in time, to depart from or modify the foregoing statement of the law especially in the interest of logical consistency and certainty in its evolving jurisprudence, but to determine every application for leave on the basis of the law as recently expounded, and more importantly, on a case by case basis.
23. In the second passage, the Chamber explained the rationale behind Rule 73(B). The Chamber reasoned as follows:

“This interpretation is unavoidable, given the fact that the second limb of Rule 73(B) was added by the way of an amendment adopted at the August 2003 Plenary. This is underscored by the fact that prior to that amendment no possibility of an interlocutory appeal existed and the amendment was carefully couched in such terms so as only to allow appeals to proceed in very limited and exceptional situations. In effect, it is a restrictive provision.”

24. Indeed, in its most recent Decision under reference[29], the Chamber reinforced the restrictive nature of Rule 73(B) with the terse observation that:

“The overriding legal consideration in respect of an application for leave to file an interlocutory appeal is that the applicant’s case must reach a level of exceptional circumstances and irreparable prejudice. Nothing short of that will suffice having regard to the restrictive nature of Rule 73(B) of the Rules and the rationale that criminal trials must not be heavily encumbered and consequently unduly delayed by interlocutory appeals.”[30]

25. At this point in time, as the trials are progressing, the Chamber must be very sensitive, and rightly so, to any proceedings or processes that will indeed encumber and unduly protract the ongoing trials. For this reason, it is a judicial imperative for us to ensure that the proceedings before the court are conducted expeditiously and to continue to apply the enunciated criteria with the same degree of stringency as in previous applications for leave to appeal so as not to defeat or frustrate the rationale that underlies the amendment of Rule 73(B). We are however not suggesting here that the Chamber will remain indifferent to an application where deserving and meritorious grounds that meet the test laid down in Rule 73(B) have been advanced by the party seeking leave to file an interlocutory appeal.

Evaluation of the Application’s Merit

26. As to the merits of the Application the Chamber recalls that the Prosecution’s case in support of the “exceptional circumstances” prong of the test rests, firstly on the belief, as stated by the Prosecution,

“that the different opinions expressed by the majority and dissenting opinion in the Decision, illustrates that the legal and factual issues raised by the Request to amend the Indictment are difficult ones that would benefit from the review of the Appeals Chamber.”

27. In this regard, it is submitted by the Prosecution that a strong and articulate dissenting opinion by a member of the Trial Chamber may itself constitute the exceptional circumstance warranting the granting of the application. Although this proposition sounds interesting and novel, the Prosecution has failed to elaborate on it thereby leaving the Chamber with no option but to observe that such a view is neither supported by case-law authority nor is it grounded on any legal foundation.
28. It would, in our opinion, be erroneous to hold that every legal situation or variable which appears to be novel or unique should, for that reason, qualify as “exceptional circumstances” within the meaning of Rule 73(B). We would only want to observe in this regard, that disagreements amongst Judges on some of the multi-faceted legal and factual issues which constitute the core of legal disputes is a normal judicial feature that is inherent in the exercise by the Judges of judicial independence on which the administration of justice is, and will continue to be, based.
29. The second key submission put forward by the Prosecution is that the high profile nature of gender based crimes under international law constitutes an exceptional circumstance given its statutory duty “to prosecute to the full extent of the law and to present before the court all relevant evidence reflecting the totality of crimes committed by the Accused”. In the Chamber’s view, the fact that the counts sought to be incorporated in the Indictment by the way of the amendment are gender based crimes, cannot be the sole determinant or overriding variable in working out the “exceptional circumstances” equation as to whether or not to grant leave to appeal nor does the fact of the recognition of a prosecutorial statutory obligation to prosecute “to the full extent of the law” become the paramount consideration in any such equation, given the widespread recognition nationally and internationally, of the discretionary power enjoyed by the prosecutor not to prosecute even where there is evidence to justify the institution of criminal proceedings that could, under the Agreement and the Statute, possibly be included in the indictment.
30. By contending that the Office of the Prosecutor is obliged to prosecute “to the full extent of the law” is the Prosecution implying that it is obliged to prosecute all crimes for which there may be supporting evidence? By analogy, such an argument loses any legal cogency, if any, it may claim when applied to the exercise of the broad prosecutorial discretion in determining whether, in the context of prosecuting “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996”, the indictments preferred on the one hand reflect the totality of all offences and on the other hand, all the perpetrators alleged to have committed such grave crimes against humanity. It may be pertinent, in this regard, to ask the following question: On what grounds or principle, should the prosecutorial duty to prosecute to “the full extent of the law” be limited in application to the range of alleged criminality involved but not the range of the alleged perpetrators? In our opinion, the overall interests of justice are not served by such limitations or differentiation in the exercise of the prosecutorial discretion.
31. Equally untenable, in the Chamber’s considered judgement, is the Prosecution’s contention that the Court is mandated to establish a complete and historical record of crimes committed during the armed conflict in Sierra Leone. This is a misconception. The Chamber’s view is that the Court’s role is exclusively adversarial in terms of meting out justice to victims and persons found guilty of serious violations of humanitarian law and Sierra Leone law during the said conflict. The alleged mandate which the Prosecution attributes to the Court, of providing a complete and historical record of what happened in Sierra Leone during the said conflict is erroneous as it is neither borne out nor is it so stipulated in either the provisions of the Agreement setting up the Special Court or in its Statute.
32. Furthermore, the Prosecution’s argument that no delay would be occasioned in the conduct of the trial if the application were granted and the matter heard by the Appeals Chamber is highly speculative. Given the limited judicial life span of the Court, and the proliferation of requests from diverse international bodies for weekly summaries of the conduct of the trial so as to evaluate the court’s commitment to expeditiousness, the Chamber takes the view that it is too tenuous a submission to warrant any merit in the context of the instant application. This Chamber has had the benefit of recent lessons about the shortcomings of a reliance on the doctrine of rationalisation of factors which are likely to delay or not to delay trials as these are not matters that can be evaluated with any degree of exactitude and certainty.
33. We would like to re-emphasise that the test applicable by this Tribunal in considering applications for leave to file interlocutory appeals “is more restrictive in comparison with that applied by the International Criminal Tribunal for Rwanda and the International Tribunal for former Yugoslavia and to state that in the interests of expeditiousness and the peculiar circumstances of this Court’s limited mandate”[31]. Based on the foregoing analysis and considerations, this Trial Chamber is not persuaded that the Prosecution’s case for leave to file an interlocutory appeal against the Decision of the Chamber dated 20th of May, 2004, refusing leave to amend the Indictment of the CDF group of indictees does not rise up to the level of exceptional circumstances as required by the first prong of the Rule 73(B) test. The claim of “exceptional circumstances” by the Prosecution is legally unsustainable, and therefore fails.
    

The Element of Estoppel

34. Even though we are not obliged judicially to examine, the alleged “irreparable prejudice” submission of the Prosecution having found no showing of “exceptional circumstances”, as the first prong of the conjunctive test, yet we take the liberty of observing that it is the Prosecution in this application, which is seeking leave to appeal against our majority interlocutory Decision, refusing leave to amend the Consolidated Indictment by adding new counts to it. For it to succeed, the Prosecution, as we have said, must satisfy us, as stipulated in the provisions of Rule 73(B) of the Rules, that exceptional circumstances exist for making such an application and that if it were not granted, it would suffer an irreparable prejudice.
35. For the Prosecution to be successful in establishing the conjunctive elements of exceptional circumstances and irreparable prejudice, it must, in our opinion, demonstrate that its conduct did not contribute to occasioning or causing the irreparable prejudice, if any, which forms the basis of the instant application for leave to appeal.
36. In this regard, it is our conviction and finding, that the Prosecution, because of its neglect in respecting the statutory obligation of timeliness, both in instituting criminal proceedings or seeking leave for an amendment to the indictment at the appropriate time, particularly in the peculiar circumstances of the limited mandate of the Special Court, was solely responsible for the refusal by the majority decision of the Chamber, of the Application for leave to amend the indictment.
37. Indeed, our analyses in our majority judgement of the 29th of May, 2004, as illustrated by the following excerpts clearly demonstrate the aforementioned lapses on the part of the prosecution.

“...These provisions underscore the necessity for international criminal justice to highlight the high profile nature of the emerging circus of gender offences with a view to bringing the alleged perpetrators to justice. In the light of the above, it is expected, and we hold the view, that the Prosecutor who is at the helm of the investigation process, should exercise extraordinary vigilance, diligence and attention, so as to immediately and without any “undue delay”, as stipulated by Article 17(4)(c) of the Statute of the Court, bring before justice for trial, all those suspected of having committed gender offences and other categories of offences within his competence...”[32]

“...If the purpose of the amendment sought, as the Prosecution alleges, is to prosecute those offences whose facts “have just recently come to its knowledge” the question the Chamber would like to be addressed is whether a recourse to an amendment to add fresh and new charges as it is in this case, would have been necessary if the Prosecution, during and after more than 2 years of investigations, had exercised due diligence to uncover long before now, these offences which we would imagine, should have been included, not only in the original individual indictments, but also in the 3 consolidated indictment that the Prosecution filed with our leave and following our Ruling and Order dated 27th January, 2004...”[33]

“...The Prosecution, in one breath, attributes this delay to the time it required to evaluate and confirm evidence and the need to secure the cooperation of witnesses who were going to testify to these allegations, before the amendment could be filed. In yet another breath, the Prosecution admits withholding the application to amend because it was waiting for the outcome of the joinder motions and to file for the amendment after the decision on the joinder...”[34]

“...We find this position unacceptable and untenable. Even if it were, shall the Accused have to wait indefinitely and for as long as the Prosecution is engaged in this protractedly indefinite expedition whose results may either be uncertain or not forthcoming at all? And if so, for how long will the Accused have to wait...?”[35]

“...In this case, it has taken the prosecution over 2 years to detect gender offences against the accused persons and in fact, one year after their initial appearances when the accused would have, if the prosecution were reasonably diligent, been informed promptly and in detail, of “the nature and cause of the charge against them”. We observe therefore that the prosecution was in breach of the ingredient of timeliness as statutorily required by the Statute and so would any order emanating from us granting this motion to amend their indictment...”[36]

“...These included more importantly, those filed by the Prosecution which, with a view to easing and fast tracking the process, were filed just when status conferences were supposed to commence, for a consolidation of the 9 individual indictments to 2 only and a joinder of the accused persons into 2 groups namely, the RUF and the AFRC group on the one hand, and the CDF group on the other. This we granted in the manner that appeared to us to be more in conformity with legal realities and the protection of the rights of the accused. It is again the Prosecution that has filed yet another motion to amend the indictment, an application which, if granted, will in our opinion, put the trial on hold, to the detriment of the Article 17 rights guaranteed to the accused by the Statute...”[37]

“...There must, at a certain stage, as we traditionally are compelled to observe, be an end to litigation which, as we know, is often engendered, at times on purpose, by a multiplicity of judicial processes. In this regard, we are of the opinion that exercising our discretion at this stage and in these circumstances in favor of granting the amendment sought by the Prosecution after obvious prosecutorial lapses that cannot be redeemed without violating the statutory rights of the accused, would not only manifestly amount to an abuse of the exercise of this inherent judicial power conferred on us, but would also be tantamount to an abuse of process...”[38]

38. In these circumstances, therefore, the Prosecution is now estopped from raising the issue of irreparable prejudice as this was occasioned the lack of diligence and promptitude on its part in carrying out investigations for the gender crimes, which it rather belatedly wanted to incorporate into the consolidated indictment, coupled with the lack of respect for the principle of timeliness in seeking the amendment for a trial whose commencement was very imminent and which actually started on the 3 June 2004, after we rendered our decision which the Prosecution is contesting, on the 29 May 2004.

RULING

39. In the light of the foregoing analysis and considerations, the Trial Chamber hereby dismisses the Application for want of merit.
    

Hon. Judge Pierre Boutet is appending a dissenting opinion to this Decision.

[1] Joint Response of Second and Third Accused to Prosecution’s Application for Leave to Appeal against the Decision on Request for Leave to Amend the Indictment.
[2] Prosecution Reply to Defence Joint Response to Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on Request for Leave to Amend the Indictment.
[3] Motion, para. 4.
[4] Id., para. 5
[5] Id., para. 6.
[6] Id., para. 7.
[7] Id., para. 8.
[8] Id., para. 9.
[9] Id., para 10.
[10] At the time of the filing of the motion this meant February 2002.
[11] Id., para. 2
[12] Id., para. 18.
[13] Response, para. 8.
[14] Id., para. 10.
[15] Id., para. 13.
[16] Id., para. 15.
[17] Id., para. 25.
[18] Id., para. 27.
[19] Reply, para. 3.
[20] Prosecutor v Mladen Naletilic and Vinko Martinovic; IT-98-34-PT, Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary Motion to the Amended Indictment; Prosecutor v Alfred Musema, ICTR-96-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, para. 17.
[21] Reply, para. 4.
[22] Id, para. 5.
[23] Id., para. 6
[24] Id., para. 10.
[25] Id., para. 11.
[26] Decision on Prosecution Application For Leave to file An Interlocutory Appeal against Decision on Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT, 1 June 2004.
[27] 13 February 2004 (“Decision of 13 February 2004”).
[28] Id. para. 10.
[29] Decision on Prosecution Application for Leave to file an interlocutory appeal against Decision on Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT, 1 June 2004 (“Decision on Concurrent Hearing of Evidence”)
[30] Id., para. 21.
[31] Decision on Concurrent Hearing of Evidence, supra note 29, para. 22.
[32] Id., para. 42.
[33] Id., para. 43.
[34] Id., para. 47.
[35] Id., para. 48.
[36] Id., para. 64.
[37] Id., para. 76.
[38] Id., para. 77.