Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Mr. Hans Holthuis
20 September 2002
DECISION ON PROSECUTION’S ORAL REQUEST FOR THE SEPARATION OF TRIALS
The Office of the Prosecutor:
Ms. Joanna Korner
Mr. Andrew Cayley
Counsel for the Accused:
Mr. John Ackerman and Mr. Milan Trbojevic, for Radoslav Brdjanin
Mr. Slobodan Zecevic and Ms. Natacha Fauveau-Ivanovic, for Momir Talic
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”) is seised of an oral request made by the Office of the Prosecutor (“Prosecution”) during the hearing of 19 September 2002 to sever the trial as against the two Accused in the case of Radoslav Brdjanin (“Brdjanin”) and Momir Talic (“Talic”).
The Accused, Brdjanin and Talic, are jointly charged in the Prosecution’s Corrected Version of the Fourth Amended Indictment, filed on 10 December 2001, with a number of crimes alleged to have been committed in Bosnia and Herzegovina. Those crimes include genocide and complicity in genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and violations of the laws or customs of war. Further, the Indictment alleges that each of the Accused is directly responsible for these crimes pursuant to Article 7(1) of the Statute of the Tribunal and as a superior pursuant to Article 7(3).
Following 8 months of pre-trial proceedings, the trial against the Accused commenced on 23 January 2002. The Prosecution case is still in progress and will continue for an uncertain period of time.
On 9 September 2002, following receipt of the results of a series of medical tests , Dr. P.T.L.A. Falke (“Dr. Falke”), the Medical Officer of the United Nations Detention Unit (“UNDU”), communicated a confidential medical report to the Registrar of the Tribunal (“Registrar”) and subsequently to the Trial Chamber, to the effect that Talic is suffering from an advanced form of carcinoma and that he is unfit to stand trial and unfit to remain in the Detention Unit.
On 10 September 2002, Counsel for Talic filed the “Motion for Provisional Release of Momir Talic”.
On 10 September 2002, the Trial Chamber heard the Parties in the absence of Talic who, due to his illness, could not attend, and had waived his right to attend. During the hearing, the Trial Chamber also heard the testimony of Dr. Falke in closed session , in which he explained that the diagnosis was a carcinoma in the liquid layer of the lungs without any possible cure except palliative care.1 Dr. Falke opined that Talic is unfit to stand trial.2
On 10 September 2002, the Trial Chamber at the request of the Prosecution and through the intervention of the Registrar3 decided to examine two leading experts.
In the closed session hearing held on 11 September 2002, the testimony of Dr. Paul Baas (“Dr. Baas”) – a lung cancer specialist and primary consultant in Antoine van Leeuwenhoek Hospital in Amsterdam – and of Dr. Jan van Meerbeek (“Dr. van Meerbeek ”) – a consultant in the Department of Pulmonary Medicine at the Erasmus Medical Centre in Rotterdam, was taken by this Trial Chamber.
In the course of the expert’s testimony of 11 September 2002, specific questions were addressed to them on the aspect of Talic’s ability to stand trial. Dr. Baas testified that Talic is for the time being fit to stand trial, though he would have to be subjected to certain medical procedures once every two weeks, and a re-assessment made. Dr. Baas opined, that Talic could withstand trial for as long as the normal development of his disease would allow – perhaps months or even longer.4 Dr. van Meerbeek added that Talic was fit to stand trial for another week (from the day of his testimony) but refrained from making a declaration with respect to Talic’s fitness to stand trial two weeks thereafter.5 He further indicated that if Talic were to opt for chemotherapy, that he would be fit to attend some hearings between the cycles but would miss the first week of each cycle.6
On 12 September 2002, Dr. Baas filed a confidential written Report confirming to the Trial Chamber that Talic is suffering from advanced carcinoma probably of the lung, which is inoperable and incurable with a very limited prognosis of survival beyond a year.7
On the basis both of the Report of Dr. Falke and his testimony and the testimonies of Dr. Falke and Dr. van Meerbeek, the Trial Chamber has verified Talic’s medical condition. The medical doctors have testified that Talic is suffering from an incurable and inoperable illness which is in its terminal phase and that his medical condition requires appropriate measures and palliative treatment, and more importantly that he would be unfit to stand trial for the entire duration of the trial proceedings .
On 17 September 2002, the Trial Chamber heard arguments from the parties on the Motion for Provisional Release filed on behalf of Talic.
On 19 September 2002, The Trial Chamber heard arguments of the parties inter alia on the future course of the trial and the impact of Talic’s continued absence from the proceedings.
13. Before proceeding to the efficacy of the Request, the oral arguments of the parties may be briefly summarised as follows:
14. During the public hearing of 19 September 2002, the Prosecution submitted that the continuance of the trial against Talic would depend on two factors: firstly, that he provide a continued waiver, either on a daily or weekly basis, for the trial to continue in the presence of his Counsel, but in his absence; and secondly, his ability to give instructions to his Counsel as to the witnesses or as to the nature of the evidence to be given by witnesses who will be forthcoming. The Prosecution further submitted that the witnesses who would be coming to give evidence on matters which are of a deeply emotional and emotive nature couldn’t be told that they cannot give evidence because one of the Accused is not in a position to instruct his Counsel . The Prosecution amplified this submission by alluding to another connected aspect of the matter namely, the “stop-start” aspect of the trial, which in effect would mean that when Counsel seeks time to receive instructions from Talic, the trial would necessarily have to be suspended for a length of time before resuming. This in the view of the Prosecution would have the effect of prolonging the duration of the trial. Another aspect of an administrative nature that was canvassed by the Prosecution related to witnesses who have to be brought from different locations . The Prosecution emphasised that if there were to be a break in the trial, it would mean that the witnesses would either have to be asked to go back and return at a later stage or they would have to sit for days on end in The Hague without the possibility of testifying. The Prosecution on these grounds conceded that it would not be possible to proceed with the trial in the absence of Talic, and thus requested the severance of the trial as against Talic.
15. The Defence for Brdjanin in their oral Response strongly opposed the continuation of the trial as a joint trial too, and requested that the trial be severed, and be continued as against Brdjanin. In elaborating this argument, the Defence submitted that the main reason was that in the absence of Talic, his Counsel would no longer be in a position to take instructions from him of any kind in a meaningful way and so it will just almost become a “sham trial”, where it would be pretended that someone is on trial. The Defence further submitted that Talic’s Counsel would not be in a position to have daily contact with him, or contact with the same frequency, as they currently do, if he were to be provisionally released.
16. In their oral Response, the Defence for Talic did not seek a severance of the trial at this time. They submitted that as Talic had waived his right to be present during the testimony of the next three witnesses, including the witness who is currently testifying, the continuance of the trial thereafter would be subject to a waiver only after receiving the list of witnesses the Prosecution intends to call. The Defence ruled out the possibility of a general waiver by Talic to his absence from trial.
17. The provisions relevant to this Request are Articles 20 and 21 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (“Statute”), Rule 48, read in the light of the definition of “transaction” in Rule 2, and Rule 82, in particular, Sub-rule (B) of the Rules of Procedure and Evidence of the Tribunal (“the Rules”). These provisions read as follows:
The Trial Chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
In the determination of any charge against the accused pursuant to the present Statute , the accused shall be entitled to the following minimum guarantees, in full equality :
to be tried without undue delay;
to be tried in his presence […].
Persons accused of the same or different crimes commuted in the course of the same transaction may be jointly charged and tried.
The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.
18. It is the well-established practice of the Tribunal to charge and try persons jointly accused of the same or different crimes allegedly committed in the course of the same transaction. This is in the spirit of the provisions of Rule 48 of the Rules.
19. The application of the pre-conditions set out in Rule 82(B) involves the exercise of judicial discretion.8 It has been held by the Appeals Chamber that the said Rule 82 (B) is permissive rather than obligatory. It is the discretionary power of the relevant Trial Chamber to determine the matter of separate trials in the circumstances of the case before it.9
20. It has been held in the Kupresic case that in a joint trial, the Trial Chamber must give separate consideration to the case of each accused.10 In the case of Delalic, the Trial Chamber observed that an accused tried jointly under Rule 82(B) maintains all the rights of a single accused person, including those enumerated in Articles 20 and 21 and Rules 83 to 87.
21. The Trial Chamber in the Simic case identified some of the elements of Rule 82. While considering a motion for separation of Trials, the Trial Chamber in particular noted that the possibility of “mutually antagonistic defences” does not constitute a conflict of interests capable of causing serious prejudice.11 The Trial Chamber noted that the idea of a joint trial is to avoid duplication of evidence, minimise hardship to witnesses, and generally in the interest of judicial economy.12
22. This Trial Chamber in an earlier Motion for the separation of trials by Talic set out the position as regards Rule 82(B).13 The Trial Chamber noted that it will be “very alive to the “personal interest” which each accused has in such a case S…C. The Trial Chamber recognises that there could possibly exist a case in which the circumstances of the conflict between the two accused are such as to render unfair a joint trial against one of them, but the circumstances would have to be extraordinary.”14
23. The Accused properly have been jointly charged with a variety of crimes in the one indictment in accordance with Rule 48, since the acts that were alleged to have been committed are part of the same transaction within the meaning of Rule 2 of the Rules. Only if this Trial Chamber considers that under Rule 82(B) of the Rules it is “necessary in order to avoid conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice” may it order that persons accused jointly be tried separately.
24. On the basis of the oral arguments and the jurisprudence of the Tribunal, the only question that the Trial Chamber addresses itself to is whether the interests of justice would require the trial to proceed against an accused who has been certified by a panel of medical experts as being unfit to stand further trial.
25. The request of the Prosecution for the severance of the trial revolves around the ability of, or rather the inability of Talic to stand trial for much longer, as this would have a direct impact on the length of the trial. This argument of the Prosecution deserves some merit. The Trial Chamber is alive to the practical reality of the situation. If the trial were to continue against the two Accused jointly, there would come a time, and it is not illogical or unreasonable to so expect, that the Defence for Talic would require time to confer with Talic on the developments in the case. In all probability this would be a recurring phenomenon in the course of the trial. Apprehending such a situation, the Prosecution fairly concedes that the trial would end up being a “stop – start” trial, which would have a considerable impact on the witnesses who appear to testify.
26. It was said on behalf of the Prosecution that continuing with the joint trial would likely to involve a delay in the trial. The jurisprudence of the Tribunal reflects the submission of the Prosecution that judicial economy and expediency of trials are two of the essential pre-conditions that ought to be borne in mind when the Trial Chamber considers a case under Rule 82(B). When these pre-conditions are added to upon the medical reports and testimony on the medical condition of Talic, it could be concluded if the trial proceeds as a joint trial, the consequences would be that not only the trial against Talic would be considerably delayed, but further the trial against Brdjanin would also be delayed, thereby directly impinging upon Brdjanin’s fundamental right to an expeditious trial envisaged under Articles 20 and 21(4)(c) of the Statute of this Tribunal. Considering also the personal interest of each of the accused in the present case, the Trial Chamber is of the view that it ought to exercise the discretion vested in it and order the severance of the trial against the Accused. The interests of justice, in the opinion of the Trial Chamber would be clearly best served by separating the trial from the present moment .
27. The Trial Chamber has also explored the possibility whether it would be feasible for Talic to attend trial if he opts for the medical treatment as recommended by the panel of experts. On a consideration of the medical reports, the testimonies of the medical experts and the opinion of Dr. Falke at the UNDU, the Trial Chamber is of the view that the chances of Talic sitting throughout the entire duration of the trial proceedings is nil. At the very least, he is only capable of standing trial for a few weeks after receiving the necessary medical treatment. The Trial Chamber further notes that there is no guarantee from the experts that even if Talic were to be present in court, that he would be fit to meaningfully follow or participate in the proceedings or even instruct his Defence. In sum, the interests of a fair trial dictate that there is no other alternative but to sever the trial and proceed against Brdjanin at this present moment.
28. The Trial Chamber sees a realistic possibility of prejudice resulting from the continuation of a joint trial. Other fundamental considerations weighing on the mind of the Trial Chamber are the fundamental and essential public interests and the safeguarding of the interests of victims and witnesses who would appear to testify . The concern of the Prosecution is absolutely justified when it asserts that witnesses who would be coming to give evidence on matters which are of a deeply emotional and emotive nature couldn’t be told that they cannot give evidence because Talic is not present in court or that he is not in a position to instruct his Counsel. The impact on the witnesses would be far-reaching and would not reflect poorly on the fair administration of justice.
The Trial chamber is reinforced in its view that if the trial were to be separated , in all probability at least the trial as against Brdjanin could proceed and be expeditiously concluded. This Order, however will for practical purpose only come into force after the conclusion of the cross-examination of witness Muhamed Filipovic that was suspended when Talic fell ill.
For the foregoing reasons
PURSUANT TO Rules 54 and 82 of the Rules
THE TRIAL CHAMBER HEREBY GRANTS the Prosecution’s Request AND ORDERS:
that the proceedings against the Accused Talic, are hereby separated from those against the Accused Brdjanin charged under the same indictment upon the completion of the cross-examination of the witness Muhamed Filipovic presently testifying before the Trial Chamber.
Done in French and English, the English version being authoritative.
Dated this 20th day of September 2002,
At The Hague,
[Seal of the Tribunal]