Case No. IT-01-47-PT


Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius

Mr. Hans Holthuis

Decision of:
30 September 2003







The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr David Re

Counsel for the Accused:

Ms Edina Residovic and Mr Stťphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura


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 "Application of Amir Kubura for Certification of the Trial Chamberís Decision on Form of Indictment of 17 September 2003", ("Application"), filed on 23 September 2003,

NOTING the Trial Chamberís "Decision on Form of Indictment", filed on 17 September 2003, wherein the Trial Chamber, inter alia, granted leave pursuant to Rule 50 of the Rules of Procedure and Evidence ("Rules") to the Prosecution to amend the Indictment by charging the Accused Kubura ("Accused") with responsibility under Article 7(3) for the crimes allegedly committed in Miletici,

CONSIDERING that in the Application the Accused, pursuant to Rule 72(B) of the Rules, requests the Trial Chamber to grant certification to appeal the Decision, in particular in relation to the question whether the test for adding new charges adopted by the Trial Chamber is correct and whether the Trial Chamber erred in finding that the Prosecutionís evidence is sufficient to support the new charges,

CONSIDERING that Rule 72(B) of the Rules reads that the decisions on preliminary motions are without appeal save in [Ö] cases where certification has been granted by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings,

CONSIDERING that there is no evidence that the Prosecution is randomly seeking amendments,

CONSIDERING that the test is not, as argued by Defence, that there may be prejudice for the Accused,

REITERATING, as set out in the Decision, that the question as to when the material was in possession of the Prosecution is not a relevant issue, but that the fundamental question in relation to granting leave to amend an indictment is rather whether the amendment will prejudice the accused unfairly,1

REITERATING the Trial Chamberís opinion that in the present case there is no suggestion that this amendment causes an unfair prejudice to the Accused, as the Accused has been given an adequate time to prepare himself a defence to the newly added charges,

CONSIDERING that the Defenceís argument that the exercise of the Trial Chamberís discretion to assess whether there is sufficient evidentiary basis for new charges should be refuted by the Appeals Chamber, is an untenable one,

CONSIDERING that such a decision is comparable to a decision on the confirmation of an indictment, for which there lies no right to appeal,

REITERATING the Trial Chamberís view that the supporting material submitted by the Prosecutor provides a sufficient basis to support the new charges, which allows the Defence to meet the case,2

CONSIDERING that, in any event, whether the Prosecutor succeeds in proving its case with respect to these allegations is a matter for trial,

CONSIDERING that the Accused in his Application, has not raised an issue in respect of the Decision that meet the requirements set out in Rule 72(B) of the Rules,

HEREBY DENIES the Application for certification.

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

Dated this thirtieth day of September 2003,
At The Hague
The Netherlands

Judge Wolfgang Schomburg

[Seal of the Tribunal]

1. Br|anin and Talić Decision on Form of Further Amended Indictment, para. 50; Prosecutor v Naletilic and Martinovic, Decision on Vinko Martinovicís Objection to the Amended Indictment and Mladen Naletilicís Preliminary Motion to the Amended Indictment, Case IT-98-34-PT, 14 February 2001, pp 4-7.
2. See, inter alia, Prosecutor v. Mrksic, Decision of Form of the Indictment, Case No. IT-95-13/1-PT, 19 June 2003, paras 22-24