SEPARATE OPINION OF JUDGE PATRICK ROBINSON

  1. The accused Gvero in his response states that the Completion Strategy should not influence the Trial Chamber in its determination of the joinder motion or be allowed to influence the right of an accused to a speedy trial.1 By the "Completion Strategy" I take it he is referring to the decision of the Security Council that the Tribunal should adopt all possible measures to complete investigations by the end of 2004, all trial activities at first instance by the end of 2008 and all work in 2010.2 In view of the heavy workload3 of the Tribunal, it is clear that special efforts would have to be made to meet these targets.
  2. In principle, the Security Council resolution does not impose an obligation on the Tribunal to do anything other than adopt all reasonable measures to meet the deadlines set. Certainly, it is not to be interpreted as requiring the Chambers to exercise their judicial function in a manner that enables the Tribunal to meet the deadline, but breaches the fundamental principle of fairness in the trial process.
  3. When, therefore, at this stage of the Tribunalís life, a Trial Chamber grants a motion for joinder of accused, and one of the factors favouring joinder is that it promotes judicial economy, this does not mean that the Chamber grants the motion because of the Completion Strategy. It accedes to the motion and is influenced by the judicial economy factor in the same way as it would have been influenced if the motion been made much earlier in the life of the Tribunal, say in the year 2000. If, in the year 2000, I dismissed a joinder motion, I would not grant it now because of the Completion Strategy. The dismissal of the motion in 2000 would have been for the reason that there was no legal basis for granting it. Granting the same motion today would clearly be wrong if the reason for doing so was the Completion Strategy.
  4. I consider it important to make this statement in order to clarify the factors that, in the context of the Completion Strategy, may properly move a Chamber in its determination of a joinder motion. While it would be quite proper for the Prosecutor to be influenced by the Completion Strategy in determining her prosecutorial strategy, including the joinder of accused, the Completion Strategy would, as the Appeals Chamber has held, be an "improper consideration" in the decision of a Trial Chamber.4 This is true even though the implementation of the Strategy may have implications for factors (such as judicial economy) of which a Trial Chamber may properly and quite independently take account.

 

_________________________
Judge Patrick Robinson
Presiding

Dated this 21st day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Prosecutor v. Tolimir et al., IT-04-80-PT, General Gveroís Response to Prosecution Motion for Joinder, 5 July 2005, para. 11.
2. See S/RES/1503 (2003). See also S/RES/1534 (2004).
3. Since October 2004, 24 indictees have been transferred to the Tribunal and this has obviously increased the Tribunalís workload.
4. See Prosecutor v. Milosevic, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 18 (referring to the "completion target for the Tribunalís work" as being an "inappropriate consideration[]" in a Trial Chamberís decision).