Case No. IT-01-42-PT


Judge Alphons Orie
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Mr. Hans Holthuis

Decision of:
18th September 2003







The Office of the Prosecutor:

Ms. Susan Somers

Defence Counsel:

Mr. Goran Rodic
Mr. Vladimir Petrovic


Trial Chamber I, (the “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 (the “Tribunal”);

BEING SEISED of a motion submitted by the Office of the Prosecutor (the “ Prosecution”) for leave to amend the indictment of 31st March 2003 and to file a second amended indictment (“the Motion”), to which a copy of the draft of that second amended indictment (“the proposed second amended indictment “) was attached;

NOTING the Chamber’s Scheduling Order of 25th July 2003 for Submission of Pre-Trial Briefs and for setting the date for the Pre-Trial Conference, as amended on the 19th August 2003, postponing the Trial date until 9th October 2003;

NOTING the Defence’s response of 10th September 2003 to the Motion under Rule 126bis of the Rules of Procedure and Evidence (the “Rules”);

NOTING that, in paragraph 19 of the proposed second amended indictment, the names of two of the three persons listed as wounded victims of the shelling of 6th December 1991 (hereinafter referred to as “victim A” and “victim B”) is different from the victims named in Annex 1 to the indictment of 31st March 2003 relating to that same incident;

NOTING that, in Schedule II to the proposed second amended indictment the building listed in that same schedule, the “Business” at Od Puca 11 in Old Dubrovnik, was not included in the indictment of 31st March 2003;

NOTING that the buildings referred to as “City Port - Kase Breakwater”, “ Vicarage”, “Residential Naljeskoviceva 24”, “Dominican Monastery”, “Residential Zlatarska Street 6” and Street 81 were alleged to have been damaged during shellings on 12th November and 6th December 1991 and the “Museum”2 was alleged to have been damaged during shellings on 24th October 1991 and 6th December 1991 despite the fact that the indictment is limited ratione temporis to 6th December 1991;

NOTING that the spelling of the names of some buildings has been corrected in the proposed amended second indictment;

CONSIDERING that adding a new victim to an indictment or a building to the list of buildings in a schedule of an indictment is not a new charge;3 that leave must be sought to amend an indictment; that in order to grant leave, the Prosecution must demonstrate that it has material to support these new facts – unless the evidence has already been given and the indictment is being amended merely to accord with the case that has been presented;4

CONSIDERING that the Prosecution disclosed a statement of victim A in accordance with Rule 66 A (i) of the Rules and therefore the Defence has known about the circumstances surrounding the injuries to that victim for almost two years;

CONSIDERING that the Prosecution has not disclosed the witness statement of victim B, although hearsay evidence of the injuries to that victim is included in another witness’ statement which was disclosed in accordance with Rule 66 A ( i) of the Rules; that hearsay evidence of this nature is insufficient to support a new material fact in the absence of the disclosure of victim B’s statement in accordance with Rule 66 A (i) of the Rules; that the Defence has been on notice for almost two years in respect of witness A but only a matter of a few weeks in respect of victim B; and further that the Defence has not been given sufficient notice in respect of victim B to prepare its case for the imminent trial;

CONSIDERING the proposed amendment to Schedule II of the indictment in respect of the addition of a new property, the Trial Chamber notes that there is no information before it as to whether or not evidence in support of this new fact has been disclosed nor if there is material to support this new fact;

CONSIDERING that the proposed amended second indictment is limited in ratione temporis to 6th December 1991;

CONSIDERING that the correction of the typographical errors of the names of the buildings, by substituting Dropceva for Dropeeva and Za Rokom for Iza Roka , does not cause unfair prejudice to the Accused in his preparation for trial;

PURSUANT TO Rule 47 (G); 50 A (i) (c) and (iii) of the Rules;


1. Leave to amend the indictment to add victim B in the Indictment and to add Od Puca 11 to Schedule II of the Indictment;

2. Leave to amend the indictment for buildings damaged on dates other than 6th December 1991; and

GRANTS leave to amend for the remaining part of the Motion; and

ORDERS that the second amended indictment be filed within 7 days of the date of this order.


Done in both English and French, the English text being authoritative.

Judge Alphons Orie

Dated this eighteenth day of September, 2003
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Pages 14, 16, 25, 59 of the proposed second amended indictment respectively.
2 - Page 56 of the proposed second amended indictment.
3 - Decision on the Application by the Defence for Leave to Appeal, Prosecutor v. Galic, Case Number IT-98-29-AR72, 30th November 2001, para., 16.
4 - Decision on the Form of Fourth Amended Indictment, Prosecutor v Brdanin & Talic, Case Number IT-99-36-PT, 23rd November 2001, para., 16.