IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Ninian Stephen
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 25 September 1996
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON MOTIONS FOR SEPARATE TRIAL FILED BY THE ACCUSED ZEJNIL DELALIC AND THE ACCUSED ZDRAVKO MUCIC
The Office of the Prosecutor:
Mr. Eric Ostberg Ms. Teresa McHenry
Counsel for the Accused:
Ms. Edina Residovic, for Zejnil Delalic
Mr. Branislav Tapuskovic, for Zdravko Mucic
Mr. Salih Karabdic, for Hazim Delic
Mr. Mustafa Brakovic, for Esad Landzo
Pending before 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 Former Yugoslavia since 1991 ("International Tribunal") is a Preliminary Motion filed pursuant to Rules 72 and 73 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") on behalf of one of the accused, Zdravko Mucic, on 24 May 1996, seeking a separate trial from two of the co-accused, Hazim Delic and Esad Landzo. On 5 June 1996 the co-accused Zejnil Delalic also filed a Motion for A Separate Trial (together referred to as "the Motions"). The Office of the Prosecutor ("Prosecution") filed its Responses to the Motions on 6 and 28 June 1996. On 18 June 1996 the Trial Chamber ordered the two co-accused, Hazim Delic and Esad Landzo, to respond to the Motions and Replies were filed on 18 and 16 July 1996, respectively. The Prosecution responded to these Replies on 19 July 1996.
On 2 August 1996 the Trial Chamber heard oral argument from counsel for the four accused and for the Prosecution on the Motions. The Decision on those Motions was reserved to a later day.
THE TRIAL CHAMBER, HAVING CONSIDERED the written and oral submissions of the parties,
HEREBY ISSUES ITS DECISION.
1. The Rules relevant to these Motions are Rule 48, read in the light of the definition of "transaction" in Rule 2, and Rule 82, in particular, Sub-rule (B). These provisions read as follow:
Joinder of Accused
Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.
Joint and Separate Trials
. . .
(B) 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.
2. 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 to have been committed are part of the same transaction within the meaning of Rule 2. Only if this Trial Chamber considers that under Sub-rule 82(B) it is "necessary in order to avoid a 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. There is no provision in the Rules for separate trial of distinct issues arising in the one indictment.
3. Neither in written submissions nor in oral argument has it been established that any conflict of interests such as is referred to in the first limb of Sub-rule 82(B) will arise if the accused are tried together in one joint trial, still less that, as a result of any such conflict, there might be caused serious prejudice to any accused. Before referring to the second limb in Sub-rule 82(B), the protection of the interests of justice, the submissions, written and oral, of the accused may be summarised as follow:
(a) The accused Zejnil Delalic
In his motion reliance was placed upon the principle of individual responsibility and on an accuseds right to equality before the International Tribunal. It was said that the presentation at his trial of evidence against other accused charged as direct perpetrators will result in serious prejudice to him. In addition, much was said regarding the appropriateness of a separate trial of this accused concerned solely with the question of whether he was ever in a position of superior authority such as would involve him in command responsibility.
However, neither in the written motion nor in oral argument was any question of conflict of interests established, though in argument the fact that all accused would be obliged to be present when evidence that did not concern all of them was given was said to give rise to a conflict of interests. Whatever degree of inconvenience this may involve is no such matter of conflict of interests with which Sub-rule 82(B) is concerned.
As it developed in argument, what this accused was seeking was not so much a separate trial on the present indictment but rather a preliminary and separate trial confined to the sole issue of command responsibility, a procedure which, as stated above, is not contemplated in the Rules of this International Tribunal.
(b) The accused Zdravko Mucic
In his written motion no conflict of interests was alleged and in oral argument his counsel did not in fact oppose a joint trial.
(c) The accused Hazim Delic
Having initially stated that he did not seek a separate trial, this accused in his motion now seeks not one separate trial but, like the accused Zejnil Delalic, a preliminary and separate trial confined to the question of his command responsibility and a second trial concerned with acts allegedly committed by him personally.
In argument this was elaborated on and counsel added that there was no objection to this accused being jointly tried with the accused Esad Landzo in the second of the two trials proposed. Neither in argument nor in the written motion is any question of conflict of interest suggested.
(d) The accused Esad Landzo
This accused also initially did not seek a separate trial but in his motion now does so and in argument objected to being tried jointly with Zejnil Delalic and Zdravko Mucic, though not with Hazim Delic. Neither in the motion nor in oral argument was any question of conflict of interests established.
4. In view of the foregoing and the absence of any conflict of interests, the only remaining ground upon which any separate trial might be ordered in accordance with Sub-rule 82(B) would be that of it being necessary to do so in order to protect the interests of justice.
5. In fact, to grant separate trials would be contrary to the interests of justice. Were each of the motions of Zejnil Delalic, Hazim Delic and Esad Landzo granted, the result would be at least three, perhaps more, distinct trials: one or perhaps two (depending on the outcome of the first) for Zejnil Delalic, one for Hazim Delic and perhaps a second (depending again on the outcome of the first) jointly with Esad Landzo and one for Zdravko Mucic, which could perhaps be a joint trial with some other accused.
6. It was said on behalf of the accused that there would be great delay and complexity involved in a joint trial; in fact the separate trials which have been sought would in toto be likely to involve much greater delay, at least for those unfortunate enough not to be the first to be tried. They would also mean considerable repetition of evidence, not only in the trials of different accused but even, according to the Prosecution, in cases where two distinct trials of the same accused became necessary as a possible outcome of the orders sought by both Zejnil Delalic and Hazim Delic. What all this would involve for witnesses, for the Prosecution and, indeed, for the functioning of the International Tribunal and the disposition of other cases, is so obvious as to need no exposition.
7. However, these considerations apart, the interests of justice are in any event clearly best served by one joint trial. The Prosecution submits that the evidence of almost all the witnesses it intends to call will be relevant to the case against each of the four accused; this may also prove to be so in the case of witnesses called by the several accused, should they chose to offer evidence. Accordingly, separate trials would involve much duplication of testimony and great hardship for already traumatised witnesses. Moreover, separate trials would, in this International Tribunal, where a bench of three Judges are triers of both fact and law, present especial difficulties. The Judges would have to hear the same witnesses giving the same testimony on at least two, and probably more, occasions and on each occasion would have to try to consider the evidence with minds unaffected by their prior conclusions regarding that evidence reached on earlier occasions. In sum, to grant the separate trials that are sought would, in the opinion of this Trial Chamber, be distinctly adverse to the interests of justice.
8. Although Sub-rule 82(B) entitles accused who have been jointly charged to separate trials upon a proper showing, and provides for no other alternative, some reference should be made to the quite different proposal urged on behalf of several of the accused that there be preliminary separate trials confined to the single issue of command responsibility. Perhaps this would result in a speedier outcome than will a joint trial, at least for the first two accused who might be tried in this way, but only if they were to succeed in establishing the absence of command responsibility. It might, however, even in that event, mean greater delay in the trial of the other accused and would certainly mean very considerably greater delay, not to mention extraordinary hardship and disruption to witnesses, were command responsibility established.
9. This apart, the arguments of the accused proceed very much upon the footing that the issues involved in command responsibility may be disposed of relatively simply and hence speedily. This the Prosecution contests. Only the outcome of such trials would determine in retrospect who was right; but if, as the Prosecution asserts, most of the intended prosecution witnesses will give evidence going to both command responsibility and to direct liability, the likelihood of speedy disposition of the command responsibility issue seems slight. It must be appreciated that the issue of command responsibility is unlikely to turn upon mere proof of the holding or not holding of some particular office.
10. In all the circumstances this Trial Chamber concludes that, for the foregoing reasons, it should refuse to make any orders for separate trial pursuant to Sub-rule 82(B); the accused have been properly joined and no showing of a conflict of interests has been made nor any prejudice to the interests of justice. It also concludes, for the reasons stated, that it should not make any orders for some form of preliminary determination of the issue of command responsibility.
FOR THE FOREGOING REASONS,
THE TRIAL CHAMBER, PURSUANT TO RULE 82,
HEREBY UNANIMOUSLY DENIES the Motions.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this twenty-fifth day of September 1996
At The Hague
[Seal of the Tribunal]