IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
2 August 2000

PROSECUTOR

v.

DUSKO SIKIRICA
DAMIR DOSEN
DRAGAN KOLUNDZIJA

___________________________________________________________

DECISION ON KOLUNDZIJA DEFENCE MOTION FOR
SEVERANCE OF COUNTS AND/ OR BIFURCATION OF TRIAL

____________________________________________________________

The Office of the Prosecutor:

Ms. Brenda Hollis

Counsel for the Accused:

Mr. Veselin Londrovic, for Dusko Sikirica
Mr.Vladimir Petrovic, for Damir Dosen
Mr. Dusan Vucicevic, for Dragan Kolundzija

 

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 the Former Yugoslavia since 1991 ("International Tribunal"),

BEING SEISED of the "Defense Motion for Severance of counts and/ or Bifurcation of Trial", filed by the Defence for the accused Dragan Kolundzija ("the Defence") on 22 May 2000 ("the Motion"), in which the Defence requests that the Trial Chamber first hear and determine the charges regarding personal liability of the accused, to be followed by either a separate trial ("severance"), or a separate phase of trial ("so-called ‘bifurcation’"), addressing the issues of derivative liability,

NOTING the "Prosecution’s Response" filed on 5 June 2000 by the Office of the Prosecutor ("the Prosecution"), opposing the Motion,

NOTING that the Defence concedes that there is no provision in the Statute of the International Tribunal nor in the Rules of Procedure and Evidence of the International Tribunal ("the Rules") which specifically addresses their proposal for severance; it therefore relies solely on examples drawn from national jurisdictions,

NOTING that the Defence argues that there are economic and practical benefits in conducting separate proceedings dealing with crimes allegedly committed outside Keraterm camp ("derivative liability"), and crimes allegedly committed inside Keraterm ("personal liability"), and that such separate proceedings are in the interests of justice,

NOTING the Defence submission that such an order for separate proceedings would save time, "insulate the accused from several sources of prejudice, focus the issues in both phases of the trial and avoid a whole host of appellate issues"; that prejudice and inconvenience to the Prosecution is non-existent; that the Prosecution can easily separate its witnesses and documentary evidence into those dealing solely with the events at Keraterm and those dealing solely with events outside Keraterm,

NOTING the Prosecution argument that there is no authority in the Statute or in the Rules for severing a trial because different theories of individual criminal responsibility are available for the crimes charged, and that the Defence misconstrues the various elements of the offences charged against him as separate crimes,

NOTING also the Prosecution argument that the evidence in question is relevant to both theories of liability and elements of the offences, and that the Prosecution is required to prove a widespread or systematic attack against the civilian population as an element of crimes against humanity under Article 5 of the Statute, and that to adopt a "bifurcated" proceeding would not save any time, since virtually all the Prosecution witnesses would need to be called twice, and that the Trial Chamber could make no findings regarding crimes against humanity until this second part of the proceedings had been completed,

NOTING the Prosecution submission that the events inside Keraterm were an inherent part of the events occurring outside Keraterm, and there is no basis in law, fact, or judicial economy to support severance or "bifurcation",

HAVING HEARD the oral arguments of the parties on 23 June 2000,

CONSIDERING, in relation to the Defence proposal for severance, that there is no authority in the Statute or the Rules for conducting separate trials on the basis of different theories of responsibility,

CONSIDERING, in relation to the Defence proposal for "bifurcation", the general power of the Trial Chamber to "exercise control over the mode and order of interrogating witnesses and presenting evidence", pursuant to Rule 90 (G),

CONSIDERING, however, that there is no good reason for the Trial Chamber to conduct this trial in two separate phases, and that the Defence proposal is impractical,

FOR THE FOREGOING REASONS

HEREBY DISMISSES the Motion.

Done in both English and French, the English text being authoritative.

 

________________________________
Richard May
Presiding

Dated this second day of August 2000
At The Hague
The Netherlands

[Seal of the Tribunal]