IN THE TRIAL CHAMBER
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Hunt
Judge Fausto Pocar
Mrs. Dorothee de Sampayo Garrido-Nijgh
9 February 2000
DECISION ON JOINDER OF TRIALS
Office of the Prosecutor:
Mr. Dirk Ryneveld
Counsel for the Applicant:
Mr. Goran Jovanovic for the accused Zoran Vukovic
Counsel for the Accused:
Mr. Slavisa Prodanovic for the accused Dragoljub Kunarac
Mr. Momir Kolesar for the accused Radomir Kovac
1. The Trial Chamber is seised of the "Defence Request for Joint of [sic] Trial" ("Request"), filed on 1 February 2000 by counsel for Zoran Vukovic ("Applicant"). The Applicant requests that Zoran Vukovic be tried jointly with Dragoljub Kunarac and Radomir Kovac ("two co-accused") and that the commencement of the trial of the two co-accused, presently 20 March 2000, be postponed till 2 May.
2. The reasons advanced for the request are manifold. The Applicant asserts that he and the two co-accused are charged on the same original indictment. They are also charged with crimes relating to the same people, places and dates, and it would be in the interest of all three to have the evidence against them led at the same time. Holding a joint trial would avoid calling witnesses to testify before the Tribunal at a later, separate trial - this is of particular importance as far as protected witnesses are concerned, who might be exposed to testifying twice. Postponing the trial till 2 May would give sufficient time to the Applicant to prepare for trial and would ensure a fair trial. The basis for the request is Rule 48 of the Rules of Procedure and Evidence of the Tribunal ("Rules").1
3. In correspondence dated 20 January 2000, counsel for the two co-accused indicate that a joint trial should be held. This was written before there was any suggestion of a postponement of the trial date, and must be assessed in the light of the complaint on behalf of Dragoljub Kunarac following the arrest of Radomir Kovac that further joinders of persons arrested after Radomir Kovac would cause prejudice to his right to an expeditious trial.2
4. The "Prosecution Response to Defence Request for Joint Trial" was filed on 1 February 2000. The Prosecutor takes no specific position on the Request. She submits that she is ready to proceed to trial as soon as possible, but she also agrees with the Applicant that a joint trial would serve the interests of judicial economy by avoiding presentation of the same evidence twice, as well as protecting the witnesses from multiple appearances in court. She leaves it for the Trial Chamber to determine whether a further postponement of the trial of the two co-accused is justified.
5. The first question to be addressed is whether Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic remain co-accused or not, in order to determine whether, depending on the answer to that question, there is a need for a formal joinder or formal separation of trials.
6. The original indictment in this case was confirmed on 26 June 1996, and it charges eight accused, including the Applicant and the two co-accused, with various crimes. On 19 August 1998, an amended indictment ("first amended indictment") was confirmed, which, inter alia, amended the original indictment by consolidating and charging all the alleged crimes committed by the accused Dragoljub Kunarac, leaving out all references to the other co-accused in the amended indictment. On 30 July 1999, a Judge of the Tribunal granted an order withdrawing the indictment against one of the original accused, namely, the deceased Dragan Gagovic; in effect, the name of the deceased was struck from the original indictment. Following the arrest of Radomir Kovac on 2 August 1999, he pleaded on counts of the original indictment on 4 August 1999. On 3 September 1999, a second amended indictment, charging Dragoljub Kunarac and Radomir Kovac and adding two new counts against Radomir Kovac, was confirmed. Following a decision by the Trial Chamber directing the Prosecutor to amend the second amended indictment, a third amended indictment against Dragoljub Kunarac and Radomir Kovac was confirmed on 1 December 1999. The charges against the remaining five accused, including Zoran Vukovic, were redacted and merged into a separate amended indictment ("separate indictment"), which was confirmed on 7 October 1999. Following his arrest, Zoran Vukovic pleaded on counts of the separate indictment on 29 December 1999.
7. The Trial Chamber is of the view that the third amended indictment and the separate indictment have replaced the original indictment. The Applicant is thus not presently a co-accused with the two co-accused. His application is therefore in law one to be joined in the third amended indictment.
8. The Trial Chamber will now turn to the next question, namely, whether the Applicant should be tried with the two co-accused.
9. Rule 48 ("Joinder of Accused") gives the Trial Chamber the discretion to decide on whether an accused should be tried with another there is no obligation to try two or more accused jointly. In the present circumstances, the Trial Chamber is of the view that a joinder of trials will not be in the interests of justice. The paramount considerations in arriving at this decision are the following.
10. It appears that the postponement of the trial at this stage will be an inevitable consequence of a joinder. The trial was originally scheduled to commence on 1 February 2000, but in order to give Radomir Kovac - who was arrested in August 1999 - the opportunity to properly prepare his defence, the Trial Chamber in December 1999 postponed the starting date of the trial to 20 March 2000. Dragoljub Kunarac surrendered to the Tribunal as long ago as March 1998. Another delay cannot be allowed. The Trial Chamber, the Prosecutor and the two co-accused have gone past the point of preparation for the trial where any further postponement would be in the interests of justice. For example, as a result of various meetings between the Prosecutor and the two co-accused, the Prosecutor has, on 1 February 2000, filed a document on the admissions by the parties and contested and uncontested matters.3 It would appear from the said document that the agreement reached might shorten the trial in some important respects. Were Zoran Vukovic to be tried together with the two co-accused, he might want to contest the agreed upon issues referred to, or worse, those negotiations and agreements would have to be reopened altogether.
11. Another postponement would further lead to further delays to other trials (involving detainees who have been awaiting trial longer than the Applicant) which are waiting in the list behind this trial. The Applicants right to a trial without undue delay under Article 21(4)(c) of the Statute of the Tribunal ("Statute")4 has to be assessed in light of the same right of others. There is no convincing evidence presented by the Applicant that that he will not complain, when the trial started in May at his request, that his right to a fair trial under Articles 20(1)5 and 21(2)6 of the Statute would be denied, requiring a further adjournment.
12. The protection of the victims and witnesses under Article 227 of the Statute is also to be considered. On the one hand, the fear and inconvenience that witnesses might experience from being called to testify twice before the Tribunal need to be taken account of. On the other hand, for practical and emotional reasons, witnesses also need to know when they will be required to testify and not be subjected to repeated postponements of trials. However, the fact that four other accused on the separate indictment remain at large means that the witnesses in any case may well have to be recalled to testify in the future. The issue of judicial economy is viewed similarly in the present circumstances. The dilemma of recalling witnesses to testify in various cases is an unhappy and unavoidable consequence of the nature of the Tribunal, a consequence that other Trial Chambers have had to deal with in other trials, for example, concerning the events in the Lasva valley of Bosnia and Herzegovina.
13. For the foregoing reasons, the Trial Chamber decides that the Applicants Request is denied. Nevertheless, should the Applicant determine that he will have prepared his defence and that he will be ready for trial on 20 March 2000, the same date scheduled for the trial of Dragoljub Kunarac and Radomir Kovac, he may approach the Trial Chamber again for relief.
Done in both English and French, the English version being authoritative.
Dated this ninth day of February 2000,
At The Hague,
[Seal of the Tribunal]
1. Rule 48 ("Joinder of Accused") reads: "Persons
accused of the same or different crimes committed in the course of the same transaction
may be jointly charged and tried".
2. Status Conference, 24 September 1999, Transcript p. 86.
3. "Prosecution Submission Regarding Admissions and Contested Matters", 1 February 2000.
4. Art. 21(4)(c), in part, reads: "In the determination of any charge against the accused [ ], the accused shall be entitled to the following minimum guarantees, in full equality: [ ] (c) to be tried without undue delay [ ]."
5. Art. 20(1), in part, reads: "The Trial Chambers shall ensure that a trial is fair and expeditious [ ]."
6. Art. 21(2), in part, reads: "In the determination of charges against him, the accused shall be entitled to a fair and public hearing [ ]."
7. Art.22, in part, reads: "The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. [ ]."