IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding
Judge Antonio Cassese
Judge Florence Ndepele Mwachande Mumba
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 14 May 1998
MIROSLAV KVOCKA, MLADEN RADIC, and ZORAN ZIGIC,
ZORAN ZIGIC a.k.a "Ziga"
DECISION ON MOTION FOR JOINDER OF ACCUSED AND CONCURRENT PRESENTATION OF EVIDENCE
The Office of the Prosecutor:
Mr. Michael Keegan
Ms. Brenda Hollis
Ms. Ann Sutherland
Counsel for the Accused:
Mr. Dusan Vucicevic and Mr. Anthony DAmato for Milan Kovacevic
Mr. Veljko Gubrina for Mladen Radic
Mr. M. Krstan Simic and Ms. Slavica Grahovac for Miroslav Kvocka
Mr. Simo Tosic for Zoran Zigic
1. Pending before this Trial Chamber of the International Criminal Tribunal for the former Yugoslavia ("the International Tribunal") is a Motion for Joinder of Accused and Concurrent Presentation of Evidence ("Motion for Joinder") filed by the Office of the Prosecutor ("Prosecution") on 22 April 1998. Defence counsel for the accused Milan Kovacevic filed a Reply and an appended Motion on 1 May 1998, seeking "bifurcation" of the trial of Milan Kovacevic. Also on 1 May 1998, Defence counsel for Mladen Radic filed a Brief in response. The Prosecution filed a Response to the Defence Motion for a "Bifurcated" Trial on 7 May 1998. Defence counsel for Zoran Zigic filed a Response to the Motion for Joinder on 8 May 1998, whereas Defence counsel for Miroslav Kvocka filed its response on 11 May 1998.
The Trial Chamber heard oral argument on 11 May 1998 at which time the Trial Chamber refused the Motion for Joinder in an oral decision, reserving the written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
2. In its Motion for Joinder the Prosecution makes the following requests:
(a) to join the trials of the accused Zoran Zigic, Miroslav Kvocka, and Mladen Radic pursuant to Article 20, paragraph 1, of the Statute of the International Tribunal and Rules 48 and 75 (A) of the Rules of Procedure and Evidence;
(b) that there be concurrent presentation of evidence against all four accused pursuant to Rules 54 and 75 (A) (and as a practical matter, that these cases therefore be heard by the same Trial Chamber).
3. The Prosecution argues that:
(a) each of the indictments against the accused Zoran Zigic, Miroslav Kvocka, and Mladen Radic concerns crimes committed in the Omarska camp; Milan Kovacevic as their superior is also charged with responsibility for these crimes, as well as the crimes alleged against Zoran Zigic relating to Keraterm camp, under Article 7, paragraph 3, of the Statute;
(b) evidence against Zoran Zigic of crimes committed in the Keraterm camp and evidence against Milan Kovacevic of crimes committed in the Prijedor area prior to the establishment of the camps, constitute proof of a widespread or systematic attack against the civilian population which is relevant to charges under Article 5 of the Statute against the accused Zoran Zigic, Miroslav Kvocka, and Mladen Radic; all these crimes are part of the "same transaction" (ethnic cleansing) under Rule 48;
(c) all the indictments are therefore based on the same facts, and as the trial process is a search for the truth, the facts revealed in the process of concurrent presentation of evidence are relevant to all the accused;
(d) the concurrent presentation of evidence would apply only to the Prosecution case;
(e) any prejudice caused to the accused, including the delay caused to the trial of Milan Kovacevic, would not be substantial, and would be outweighed by the following considerations;
(i) separate trials would have adverse consequences on the health, welfare, and
security of Prosecution witnesses, and could result in the Prosecution losing crucial witnesses for subsequent prosecutions;
(ii) separate trials would have an adverse effect on the rights of all four accused to be tried expeditiously under Article 20, paragraph 1, of the Statute;
(iii) the concurrent presentation of evidence in these trials is the most efficient use of the resources of the International Tribunal and therefore in the interest of judicial economy.
4. Defence counsel for the accused Milan Kovacevic opposes the Motion for Joinder on the following grounds:
(a) as the crime of genocide with which Milan Kovacevic is charged differs from the crimes alleged against the other accused (and the relevant evidence differs), the concurrent presentation of evidence against all four accused would lead to a conflict of interest in their defence strategies, which would substantially prejudice the accused in their right to a fair trial. Such a conflict would constitute a ground for separation of trials under Rule 82 (B);
(b) the concurrent presentation of evidence would lead to further delay in the trial of Milan Kovacevic, thus violating his right to an expeditious trial;
(c) the Prosecutor's argument that Milan Kovacevic was the superior of the other defendants and therefore bears responsibility for their crimes under Article 7, paragraph 3, is a mere assertion, unsupported by proof;
(d) the important concerns for the health, welfare and security of victims and witnesses, the rights of the accused to an expeditious trial, and judicial economy could be redressed by a "bifurcation" of the trial of Milan Kovacevic, so that witnesses could give evidence in one trial in the morning and the other in the afternoon;
(e) such a "bifurcation" would be consistent with the fact that Milan Kovacevic is not charged with any alleged atrocities that took place within the camps.
5. Defence counsel for Mladen Radic, Miroslav Kvocka, and Zoran Zigic also oppose the Motion for Joinder:
(a) Defence counsel for Mladen Radic states that he had not received all the supporting materials in the native language of the accused, and therefore cannot state his position further at this time;
(b) Defence counsel for Miroslav Kvocka opposes the Motion for Joinder on these grounds:
(i) this situation is not covered by Rule 48 since there is no question of joining the indictments, nor is it covered by Rule 54;
(ii) protection of victims and witnesses is enhanced by separate trials;
(iii) the accused Miroslav Kvocka's position is a specific one; it bears no relation to that of the accused Zoran Zigic and Milan Kovacevic;
(iv) arguments of expediency and efficiency cannot justify the violation of the right of the accused to a fair trial;
(c) Defence counsel for Zoran Zigic also states he has not received the supporting materials, and at the hearing of 11 May 1998 commented that
(i) joinder of trial without joinder of indictments would be an irregular procedure;
(ii) since there is no complete overlap of witnesses, it would in fact be beneficial to have separate trials;
(iii) judicial economy is not a valid reason to join trials.
6. The Prosecution responds by arguing:
(a) the supporting materials have all been handed over to the respective Defence counsel in English;
(b) Defence counsel for Milan Kovacevic is under a basic misapprehension of the indictment against Milan Kovacevic when stating that crimes committed in Omarska are not relevant, as the indictment charges Milan Kovacevic not just with planning genocide, but with complicity in genocide under Article 7, paragraph 1 and Article 7, paragraph 3;
(c) concerns for the protection of victims and witnesses would not be met by
the "bifurcation" of the trial of Milan Kovacevic as they would still be required to testify twice.
III. APPLICABLE LAW
7. Both sides rely on Article 20, paragraph 1, of the Statute, which states:
The Trial Chambers 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.
8. The Prosecution argues joinder of trial would be pursuant to Rule 54, and provided for in Rule 48 which states:
Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.
The Prosecution also relies on Article 22 in conjunction with Rule 75 (A). Article 22 provides:
The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. . . .
Rule 75 (A) states:
A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Unit, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused.
9. The Defence counsel for Milan Kovacevic argues that Rule 82 (B) was drafted with this situation in mind, as it states:
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.
10. At the hearing of 11 May 1998, the Trial Chamber rejected the Motion for Joinder. Its reasons for doing so are set out below.
(a) The practical effect of the course proposed by the Prosecution would be to order joint trials. At the moment the four accused appear in three indictments. Therefore to order the concurrent presentation of evidence would be to order a joint trial of all four accused. In the view of the Trial Chamber, such a course is not justified in the circumstances before it in this case, for the following reasons.
(b) The Trial Chamber recognises that some victims and witnesses called to give evidence suffer hardship thereby, and has well in mind its duty to protect witnesses. On the other hand, pursuant to Article 20, paragraph 1, the accused have the right to a fair and expeditious trial. Rule 75 (A) specifies that any measures for protection of witnesses may only be ordered if they are consistent with the rights of the accused. The Trial Chamber considers that the course requested by the Prosecution may endanger the rights of all the accused to a fair trial, because it may lead to conflict of interests between the accused in conducting their defence. Such conflict would cause serious prejudice to all the accused. Rule 82 (B) empowers a Trial Chamber to separate trials if "it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused . . .". Had the four accused been jointly indicted in this case, the Trial Chamber would have had to consider separating their trials.
(c) Furthermore, to allow this Motion for Joinder would result in a violation of the right of the accused Milan Kovacevic to an expeditious trial (his trial already having been postponed from 11 May 1998). This violation is not justified by the argument that joinder may expedite the trials of the other accused.
(d) Since the proposed course of action might cause substantial prejudice to the accused, as well as infringing the right of the accused Milan Kovacevic to be tried without undue delay, the Trial Chamber finds that arguments of judicial economy are no longer relevant. The Trial Chamber also takes the view that it is impractical for it to conduct two trials at the same time; this would be liable to lead to confusion of the issues and evidence.
For the foregoing reasons
PURSUANT TO RULES 54 AND 73;
THE TRIAL CHAMBER REFUSES the Prosecution's Motion for Joinder of Accused and Concurrent Presentation of Evidence of 22 April 1998 to this extent:
1. The request for the concurrent presentation of evidence against all four accused, with the suggestion that these cases all be heard by the same Trial Chamber, is rejected.
2. The request for the two indictments against the accused Zoran Zigic, Mladen Radic, and Miroslav Kvocka to be tried together is adjourned, as it is not a matter for this Trial Chamber to determine, but for the Trial Chamber which will try those accused.
Done in English and French, the English text being authoritative.
Dated this 14th day of May 1998
At The Hague
[Seal of the Tribunal]