Case No. IT-01-42-T


Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Mr. Hans Holthuis

Decision of:
22 January 2004







The Office of the Prosecutor:

Ms. Susan Somers
Mr. Philip Weiner

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic


THIS 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”);

NOTING the Defence’s objection to certain parts of the Prosecution opening statements, raised orally in court session on 16 December 2003, whereby the Defence objected to the admission of evidence concerning certain shelling incidents carried out by Strugar’s subordinates, which occurred in the period preceding that charged in the Third Amended Indictment;1

NOTING the Prosecution’s response to the Defence’s objection delivered orally in court session on 17 December 2003;2

NOTING the Defence written submission in support of its objection to the Prosecution’s opening statement, dated 12 January 2004, whereby the Defence maintains inter alia that (i) an indictment represents a limit of an accused’s liability and that an accused cannot be found responsible for unlawful acts or omissions which are not contained in the indictment; that (ii) the Prosecution is introducing acts or omissions not charged in the Indictment; and that (iii) evidence of acts of the accused preceding the Indictment, allegedly representing “the direct cause” of the acts charged in the Indictment, should be excluded;

NOTING the Prosecution response filed on 19 January 2004, whereby the Prosecution submits that evidence of acts occurring before 6 December 1991 does not constitute a new charge against the Accused; that evidence of either the uncharged criminal conduct or acts not contained in the indictment may be introduced at trial without subjecting an accused to further criminal liability; and that evidence of prior acts or conduct is relevant to the issue of knowledge or mental state of the Accused with respect to the charges in the Indictment;

CONSIDERING that the submission of the Defence on the Tribunal’s jurisprudence concerning the relationship between an indictment and the evidence presented before a trial chamber,3 refers to the question of sufficient pleading of an indictment and therefore does not bear directly upon the issue raised by the Defence objection;

CONSIDERING that the ratio decidendi of decisions of the Appeals Chamber is binding on trial chambers;4

CONSIDERING the Appeals Chamber decision to admit evidence concerning events not charged in the indictment as corroborating evidence establishing acts charged in the indictment, which decision was based on the jurisprudence of courts in England and Wales, Australia and the United States “to admit evidence of crimes or wrongful acts committed by the defendant other than those charged in the indictment, if the other crimes are introduced to demonstrate a special knowledge, opportunity, or identification of the defendant that would make it more likely that he committed the instant crime as well;”5

CONSIDERING that the requirement set out in this Appeals Chamber decision that any evidence introduced in this way be of a corroborative nature, only stemmed from the need to secure proper notice to the accused of the evidence the Prosecution would seek to introduce at trial, at a time when the current version of Rule 65ter which secures the same, had not yet been adopted;6

CONSIDERING that a review of the practice in national jurisdictions shows that courts will generally admit evidence of acts of the accused other than those charged in the indictment, provided that this evidence is used to prove an issue relevant to the charges such as motive, opportunity, intent, preparation, plan, or knowledge;7

CONSIDERING that Strugar is charged in the Indictment with command responsibility under Article 7(3) of the Statue for the acts of his subordinates on 6 December 1991;

CONSIDERING that in order to establish liability under Article 7(3) of the Statue the Prosecution must prove, inter alia, that the Accused knew or had reason to know that a subordinate was about to commit or had committed crimes under the jurisdiction of the Tribunal;

CONSIDERING that the Appeals Chamber has interpreted this requirement to mean that a superior will be held criminally responsible under Article 7(3) of the Statute if, inter alia, information was available to him which would have put him on notice of offences committed by subordinates,8 and that the Appeals Chamber has further held that information that would alert a superior to the fact that crimes might be committed includes prior criminal conduct of subordinates or a history of mistreatment;9

CONSIDERING that in its Pre-trial Brief the Prosecution explicitly maintains that as a consequence of prior shelling on Dubrovnik by JNA forces under the command of the Accused, he has been aware of the potential for damage to the Old Town on 6 December 1991,10 and that given the history of incidents of shelling involving the Old Town in October and November 1991, specific orders to his subordinates prohibiting any combat activities should have been issued;11

CONSIDERING, therefore, that the evidence of events prior to 6 December 1991 is being offered to prove that on 6 December 1991 Strugar knew or should have known, based on prior conduct of his subordinates in similar circumstances, that his subordinates would commit criminal acts;

CONSIDERING that since this evidence is being introduced to establish the Accused’s state of mind for the purpose of proving the Article 7(3) charge, it falls squarely within the principle articulated in the aforementioned Appeals Chamber decision, and is, therefore, admissible;

CONSIDERING that under Rule 89(C) a chamber may admit any relevant evidence which it deems to have probative value;


HEREBY REJECTS the Defence’s objection to the Prosecution opening statement and allows the admission of evidence concerning prior shelling incidents, provided that this evidence is used solely for the purpose of proving the Accused’s state of mind in connection to the acts charged in the Indictment .


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

Dated this twenty-second day of January 2004
At The Hague
The Netherlands

Judge Kevin Parker

1 - Court session of 16 December 2003, T. 285-7.
2 - Court session of 17 December 2004, T. 289-93.
3 - Defence submission on objection to the Prosecution’s opening statement, paras 7-9.
4 - Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Judgement of 24 March 2000, para. 113.
5 - Prosecutor v. Kupreskic, Case No. IT-95-16-A, Appeals Judgement of 23 October 2001, para. 321, citing Archbold: Criminal Pleadings, Evidence and Practice 2000, paras 13-37 and John Strong, McCormick On Evidence, para. 190 at 797-812, 4th edition, 1992.
6 - Id., para. 323.
7 - Federal Rules of Evidence for United States Courts, Rule 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. See also Richard May, Criminal Evidence, 3d edition, Sweet & Maxwell Ltd., London, 1995, pp. 96-102, paras 6-08 and following: Evidence of the misconduct of the defendant on occasions other than those relating to the offence charged or evidence which tends to show disposition on his part may be admitted in exceptional circumstances if it is (a) relevant in the sense that it is probative of an issue in the case; and (b) its probative force outweighs its prejudicial effect.
8 - Prosecutor v. Delalic et al. (Celebici), Case No. IT-96-21-A, Appeals Judgement of 20 February 2001, para. 241.
9 - Prosecutor v. Kvocka et al., Cas No. IT-98-30/1-T, Appeals Judgement of 2 November 2001, para. 318.
10 - Prosecution Pre-trial Brief, para. 76.
11 - Prosecution Pre-trial Brief, para. 80.