Case No. IT-95-11-PT
IT-03-69-PT
IT-03-67-PT

IN TRIAL CHAMBER III

Before:
Judge Patrick Robinson, Presiding
Judge Carmel Agius
Judge Liu Daqun

Registrar:
Mr. Hans Holthuis

Decision of:
10 November 2005

PROSECUTOR v. MILAN MARTIC
PROSECUTOR v. JOVICA STANISIC AND FRANKO SIMATOVIC
PROSECUTOR v. VOJISLAV SESELJ

_______________________________________________

DECISION ON PROSECUTION MOTION FOR JOINDER

_______________________________________________

The Office of the Prosecutor:
Ms. Carla Del Ponte
Ms. Hildegard Uertz-Retzlaff
Mr. David Re

Counsel for the Accused:
Mr. Predrag Milovancevic and Mr. Vuk Sekulic for Milan Martic
Mr. Geert-Jan Alexander Knoops and Mr. Wayne Jordash for Jovica Stanisic
Mr. Zoran Jovanovic for Franko Simatovic

The Accused:
Mr. Vojislav Seselj

Standby Counsel in the Case Against Vojislav Seselj:
Mr. Tjarda Eduard van der Spoel

    I. BACKGROUND

  1. 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 (“Tribunal”)1 is seized of three identical motions for joinder of the cases of Prosecutor v. Milan Martic, Prosecutor v. Jovica Stanisic and Franko Simatovic, and Prosecutor v. Vojislav Seselj, filed by the Office of the Prosecutor on 1 June 2005 and 19 July 2005 (“ Joinder Motion”).2
  2. The Prosecution requests that the cases against the accused Jovica Stanisic (“Stanisic ”), Franko Simatovic (“Simatovic”), Milan Martic (“Martic”) and Vojislav Seselj (“Seselj”) be joined and tried in a single trial.3
  3. Martic is currently charged in an indictment filed on 24 July 1995, amended on 18 December 2002 and amended again on 9 September 2003.4 He is charged with individual criminal responsibility pursuant to Article 7(1) of the Statute of the Tribunal (“Statute”) and with superior responsibility pursuant to Article 7(3) of the Statute for crimes against humanity (persecutions, extermination, murder, imprisonment, torture, inhumane acts—including forcible transfers—and deportation) and violations of the laws or customs of war (murder, torture, cruel treatment, wanton destruction of villages or devastation not justified by military necessity, destruction or wilful damage to institutions dedicated to education or religion, plunder of public or private property and attacks on civilians). The crimes are alleged to have been committed on or about 1 August 1991 until 31 December 1995, in various parts of Croatia and Bosnia and Herzegovina (“BiH”), namely the Serbian Autonomous Region (“SAO”) Krajina and the city of Zagreb in Croatia, and the Autonomous Region of Krajina (“ARK”) in BiH.5 Martic was transferred to the Tribunal on 15 May 2002, and has been in detention since that time. His motions for provisional release were denied.6
  4. Stanisic and Simatovic are currently charged in a single indictment that was filed on 1 May 2003 and amended on 9 December 2003.7 On 6 May 2005, the Prosecution filed a motion for leave to amend the amended Indictment.8 That motion is still pending. According to the current Indictment, Stanisic and Simatovic are charged with individual criminal responsibility pursuant to Article 7(1) of the Statute for crimes against humanity (persecutions, murder, inhumane acts—forcible transfers—and deportation) and violations of the laws or customs of war (murder). The crimes are alleged to have been committed on or about 1 April 1991 until 31 December 1995, in the SAO Krajina, SAO Slavonia, Baranja and Western Srem (“SAO SBWS”) in Croatia, and in several municipalities in BiH.9 Stanisic was transferred to the Tribunal on 11 June 2003, and Simatovic was transferred to the Tribunal on 30 May 2003. Both accused were granted provisional release by the Trial Chamber on 28 July 2004.10 The Appeals Chamber confirmed the Trial Chamber decision11 and the accused were provisionally released on 9 December 2004.
  5. Seselj is currently charged in an indictment filed on 15 January 2003 and amended on 12 July 2005.12 He is charged with individual criminal responsibility pursuant to Article 7(1) of the Statute for crimes against humanity (persecutions, extermination, murder, imprisonment, torture, inhumane acts, deportation and forcible transfers) and violations of the laws or customs of war (murder, torture, cruel treatment, wanton destruction of villages or devastation not justified by military necessity, destruction or wilful damage to institutions dedicated to education or religion and plunder of public or private property). The crimes are alleged to have been committed on or about 1 August 1991 until September 1993, in various territories in Croatia and BiH and in parts of Vojvodina in Serbia.13 Seselj was transferred to the Tribunal on 24 February 2003, and has been in detention since that time. His motion for provisional release was denied.14 Seselj is representing himself, but a Standby Counsel has been appointed by the pre-Trial Chamber.15
  6. All four accused have filed responses to the Joinder Motion opposing the Prosecution request for joinder. Martic filed his response on 13 June 2005,16 Stanisic and Simatovic on 29 June 2005,17 and Seselj on 29 August 2005.18
  7. On 5 July 2005 the Prosecution requested leave to reply to the submissions filed by the accused Stanisic and Simatovic, and attached a consolidated reply to its request (“Prosecution Reply”).19 The Trial Chamber will grant the Prosecution leave to file the consolidated Reply, and takes the submissions made in the Reply into consideration.
  8. II. THE LAW

  9. Rule 48 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides that “[p]ersons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.” A “transaction” is defined in Rule 2 of the Rules as a “number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.”
  10. If the Chamber decides that the requirements of Rule 48 have been met, it may, based on an evaluation of various factors, decide either to grant joinder or leave the cases to be tried separately. The case law of the Tribunal suggests that the following factors may properly be taken into account in making this determination: (i) promoting judicial economy; (ii) avoiding conflicts of interest that might cause serious prejudice to the accused; (iii) protecting the interests of justice, inter alia, by safeguarding the rights of the accused to a fair and expeditious trial; (iv) minimising hardship to witnesses, and (v) ensuring consistency of verdicts.20
  11. In deciding whether charges against accused should be joined pursuant to Rule 48, a Trial Chamber should base its determination upon the factual allegations contained in the indictments and related submissions.21
  12. III. RULE 48 OF THE RULES

    Arguments of the Parties

  13. The Prosecution submits that the three cases should be joined because the crimes alleged in the three Indictments were committed in the course of the same “transaction,” as defined in Rules 48 and 2 of the Rules.22
  14. According to the Prosecution, all four accused participated in a Joint Criminal Enterprise (“JCE”) with a common general purpose: the “forcible removal of a majority of the non-Serb population, primarily, Croats and Muslims, from large areas of the territory of Croatia and Bosnia and Herzegovina, through the commission of crimes in violation of Articles 3 and 5 of the Statute.”23 Although the Prosecution concedes that there are differences in the wording of the JCEs alleged in the three Indictments, it nevertheless argues that these differences are of a semantic nature, and that “?tghe large degree of similarity between the three Indictments as to the object of the JCE overshadows these slight differences in wording.”24 The Prosecution emphasises that it has phrased the JCE allegations against the four accused in similar terms “precisely because it is the Prosecution’s case that they shared a common long-term aim.”25
  15. Moreover, the Prosecution argues that additional similarities between the three Indictments—such as the overlap in the time-span of the JCE and the identical wording of the mens rea of the accused in the three Indictments—underscore the singularity of the purpose shared by the accused in pursuit of the common scheme. Indeed, the Prosecution submits, all four accused cooperated with each other.26 The Prosecution further points to the large degree of overlap in the names of other participants of the JCE alleged in each Indictment.27
  16. The Prosecution also submits that the crime bases of the Indictments of Seselj and Stanisic/Simatovic, and of the Indictments of Martic and Stanisic/Simatovic, significantly overlap.28 Although there is no crime -base overlap in the allegations made against Martic and Stanisic/Simatovic for events in BiH, the Prosecution argues that the crimes alleged against these accused still form part of the same campaign of persecution.29 Moreover, the Prosecution argues that according to the Tribunal’s Rules and jurisprudence the fact that the alleged acts and/or omissions of each accused did not occur in the same place should not bar joinder.30
  17. Nor, the Prosecution submits, should differences in the alleged form of participation of the accused dissuade a Trial Chamber from joining accused. It is in the very nature of a JCE that high-level participants play distinct roles,31 the Prosecution argues, and it is irrelevant whether co-accused played different roles in the hierarchy of command.32
  18. The accused raise various objections to the Prosecution’s conclusion that the crimes charged constitute one “transaction” as required by Rule 48.33 Martic acknowledges that the Indictments “contain largely similar allegations regarding the so-called joint criminal enterprise which may satisfy the same transaction criterion for joinder within the meaning of the term transaction set out in Rule 2 of the Rules and further elaborated in the Tribunal’s jurisprudence.”34 Stanisic, Simatovic and Seselj, however, object to the wide interpretation given by the Prosecution to the notion of “same transaction”, and to the reliance on a very general formulation of the alleged common JCE as a basis for such a transaction.35 According to Stanisic, the differences in the wording of the alleged JCEs are significant, and reflect the different purpose and nature of each alleged JCE.36
  19. Stanisic further emphasizes that a decision on whether a “same transaction” exists cannot be based on common purpose solely, but should also be based on factors such as the timing of the events, their geographical location, the means by which the acts of the accused were alleged to have been committed, and the exact wording and description of the allegations within the individual Indictments.37
  20. Stanisic and Seselj submit that according to the three indictments there are differences in the alleged activities and mode of participation in the JCE of each accused.38 Stanisic adds that the Prosecution submissions do not show a hierarchical relationship between the accused, and show only very little coordination between the activities of the accused.39 Moreover, Stanisic and Simatovic refer to the small number of common witnesses as an additional indication that there is very little overlap between the Indictments.40 Stanisic also argues that the Indictments differ in relation to the counts charged against the accused.41 Finally, all four accused submit that the three Indictments differ considerably in their crime bases.42
  21. Discussion

  22. The Trial Chamber must first determine whether the crimes alleged in the three Indictments form part of the same transaction, i.e. part of a common scheme, strategy or plan. According to the Tribunal’s Rules and jurisprudence, acts of the accused can form part of the same transaction even if they are comprised of different crimes, and even if they were carried out in different areas and over different periods of time, provided that there is a sufficient nexus between them.43
  23. In this case, the three Indictments charge the accused with participation in a JCE with a similar long-term aim: the forcible removal of non-Serbs from large areas of Croatia and BiH through the commission of crimes under articles 3 and 5 of the Statute; indeed, the accused are alleged to have had contact with one another.44 However, the wording of the “common purpose” alleged in each of the three Indictments is not identical.45
  24. In addition, there is only a partial overlap between the (i) counts and (ii) mode of liability charged against each accused; and (iii) the time-frame and (iv) location of the crimes charged in the three Indictments.
  25. First, with regard to the counts charged, although all four accused are charged with persecution, murder, deportations and forcible transfers,46 only Martic and Seselj are charged with extermination, imprisonment, torture, inhumane acts, cruel treatment, wanton destruction of villages or devastation not justified by military necessity, destruction or wilful damage done to institutions dedicated to religion or education and plunder of public or private property,47 and only Martic is charged with the crime of attacks on civilians.48
  26. Second, with regard to the modes of liability charged, although all four accused are charged with individual criminal responsibility pursuant to Article 7(1) of the Statute for planning, ordering, committing (inter alia through participating in a JCE) and aiding and abetting the crimes alleged in the Indictments, only Martic and Seselj are charged in addition with individual criminal responsibility for instigating the commission of the crimes alleged.49 Moreover, the allegation that Seselj instigated certain crimes is based in part on “speeches” and other “communications” he made, whereas the allegation against Martic is not.50 Finally, of the four accused, only Martic is charged with superior responsibility pursuant to Article 7(3) of the Statute.51
  27. Third, with regard to the time-period of the alleged crimes, the Trial Chamber observes that all three Indictments refer to JCEs that came into existence no later than 1 August 1991. However, while Martic, Stanisic and Simatovic are charged with crimes that are alleged to have been committed up to August 1995, Seselj is only charged with crimes that are alleged to have been committed up to October 1993.52
  28. Finally, with regard to the location of the crimes with which the accused are charged, the Trial Chamber observes that the Indictments against Martic and Stanisic/Simatovic charge the accused with criminal responsibility for events that, with a few exceptions, took place in the same parts of SAO Krajina in Croatia.53 Moreover, the Indictments against Seselj and Stanisic/Simatovic charge the accused with criminal responsibility for events that took place in Vukovar/SAO SBWS in Croatia, and Zvornik, Bosanski Samac and Bijeljina in BiH.54 However, only Martic is charged with criminal responsibility for events in Zagreb in Croatia, and for events in Bosanski Novi, Bosanska Gradiska, Prnjavor and Sipovo in BiH.55 Furthermore, only Stanisic and Simatovic are charged with criminal responsibility for events in Doboj, Mrkonjic Grad,56 and Sanski Most in BiH.57 Finally, only Seselj is charged with criminal responsibility for events in SAO Western Slavonia in Croatia, in Greater Sarajevo, Mostar, Nevesinje, Brcko in BiH, and Vojvodina in Serbia.58 There is, therefore, only a partial geographical overlap between events alleged to entail criminal responsibility for Martic and Stanisic/Simatovic, and a partial overlap between events alleges to entail criminal responsibility for Seselj and Stanisic/Simatovic. Moreover, it is noteworthy that there is no overlap at all between the geographical location of events alleged to entail criminal responsibility for Martic and Seselj.59
  29. On the basis of the above analysis, the Trial Chamber has to consider whether the crimes alleged in the three Indictments fall within the definition of “same transaction ” under Rule 48 of the Rules. The decision of the Appeals Chamber in the Milosevic case is instructive as to the meaning of the term “same transaction”.60
  30. The Milosevic Trial Chamber found the nexus between the crimes alleged in the Indictment regarding Kosovo and the crimes alleged in the Indictments relating to Croatia and Bosnia “too nebulous to point to the existence of ‘a common scheme, strategy or plan’ required for the ‘same transaction’ under Rule 49.”61 That Chamber based its decision denying joinder on the distinction, in time and place, between the Kosovo Indictment, on the one hand, and the Croatia and Bosnia Indictments, on the other, as well as on the distinction in the way in which the accused is alleged to have acted in each Indictment.62
  31. The Appeals Chamber, however, reversed the Trial Chamber’s decision,63 finding that the events alleged in the three Indictments—Kosovo, Croatia and Bosnia —formed part of the “same transaction” pursuant to Rules 2 and 49 of the Rules. It therefore ordered that the three Indictments be joined.64
  32. For the Appeals Chamber it was sufficient that:

    [t]he indictments…when taken as a whole…make it sufficiently clear that the purpose behind the events in each of the three areas for which the accused is alleged to be criminally responsible was the forcible removal of the majority of the non-Serb civilian population from areas which the Serb authorities wished to establish or to maintain as Serbian-controlled areas by the commission of the crimes charged. The fact that some events occurred within a province of Serbia and others within neighbouring states does not alter the fact that, in each case, the accused is alleged to have acted in order to establish or maintain Serbian control over areas which were or were once part of the former Yugoslavia.65
  33. The Appeals Chamber further found that a “transaction” may be a common scheme, strategy or plan with a long-term aim, and further clarified that:

    [a] joint criminal enterprise to remove forcibly the majority of the non-Serb population from areas which the Serb authorities wished to establish or to maintain as Serbian controlled areas by the commission of the crimes charged remains the same transaction notwithstanding the fact that it is put into effect from time to time and over a long period of time as required.66
  34. Although the Appeals Chamber in the Milosevic case dealt with a request for joinder pursuant to Rule 49 (joinder of crimes), it found that Rule 49 has to be considered in conjunction with Rule 48 (joinder of accused), because both are based upon acts committed in the course of “the same transaction”, as defined in Rule 2 of the Rules.67
  35. The very wide interpretation of the notion of “same transaction” adopted by the Appeals Chamber in the Milosevic case leads the Trial Chamber to the conclusion that the requirement of “same transaction” has been met in this case as well. Indeed, the Appeals Chamber decision makes it very difficult for any Trial Chamber seized of a joinder request alleging that the accused had a “common purpose” to conclude that such a requirement has not been met, even if the common purpose is a very broad and long-term one.
  36. Accordingly, the Trial Chamber concludes that in the present case, although the three Indictments reveal differences in the formulation of the “common purpose” of the alleged JCE, the counts and modes of liability charged against each accused and the time-frame and location of the crimes charged, there is a sufficient nexus between them to satisfy the “same transaction” requirement, as that has been interpreted by the Appeals Chamber. The “common purpose” alleged in each of the three Indictments is formulated in largely similar terms and suggests that the accused were involved in a JCE aimed at removing non-Serbs from certain areas through the commission of crimes in violation of Articles 3 and 5 of the Statute.
  37. In light of the foregoing, the Trial Chamber holds that the crimes alleged in the Indictments of Martic, Stanisic/Simatovic and Seselj were committed in the course of the “same transaction” under Rule 2 and Rule 48 of the Rules and are therefore eligible to be “jointly charged and tried.”
  38. IV. DISCRETIONARY FACTORS

  39. The Trial Chamber will now examine and evaluate the different factors to be taken into account in exercising its discretion to grant or refuse joinder. These factors include: (i) promoting judicial economy; (ii) avoiding conflicts of interest that might cause serious prejudice to the accused; (iii) protecting the interests of justice, inter alia, by safeguarding the rights of the accused to a fair and expeditious trial; (iv) minimising hardship to witnesses, and (v) ensuring consistency of verdicts.
  40. Promoting Judicial Economy

  41. The Prosecution submits that a joint trial will prevent duplication of evidence. According to the Prosecution, one joint trial will be shorter than the total period required for three separate trials, and will save financial resources as it would allow witnesses and experts to testify only once.68 The Prosecution also states that it is willing to consider dropping certain crime base allegations with a view to shortening the trial.69
  42. All four accused, however, submit that a joint trial will be long and inefficient.70 Stanisic argues that if the cases are joined, it will be difficult to find evidence suitable for submission under Rule 92bis because of the different roles, acts and liability alleged against each accused.71 Simatovic argues that it will be difficult to reach an agreement on any facts, as many facts may be only minimally relevant to one accused while very relevant to another.72 Seselj argues that a joint trial may even increase the amount of evidence, because each accused will have to call more witnesses to defend himself in a joint trial.73 And finally Stanisic and Simatovic argue that a joint trial will also be costly.74
  43. The Prosecution estimates that if the three trials were to take place separately, the total number of Prosecution witnesses in the three cases would be 329 (79 in the Martic case, 120 in the Stanisic/Simatovic case and 130 in the Seselj case ), whereas in a joint trial, the number of Prosecution witnesses would be reduced to 274.75
  44. Even assuming these figures are correct, out of the 274 Prosecution witnesses who would be called in a joint trial only one is common to all the three cases for which joinder is sought. Only 29 witnesses are common to the cases of Martic and Stanisic /Simatovic. Only 26 are common to the cases of Seselj and Stanisic/Simatovic. And only two are common to the cases of Martic and Seselj.76 Put another way, Martic would be confronted with 195 witnesses of no relevance to his case; Stanisic and Simatovic would be confronted with 154 witnesses of no relevance to their case, and Seselj would be confronted with 144 witnesses of no relevance to his case.
  45. Furthermore, if only the cases of Martic and Stanisic/Simatovic were joined, those accused would be confronted with 170 Prosecution witnesses, only 29 of which would be in common, with 91 witnesses being of no relevance to Martic’s case, and 50 witnesses being of no relevance to the Stanisic/Simatovic case. If only the cases of Seselj and Stanisic/Simatovic were joined, those accused would be confronted with 224 Prosecution witnesses, only 26 of which would be in common, with 94 witnesses being of no relevance to Seselj’s case, and 104 witnesses being of no relevance to the Stanisic’s/Simatovic’s case. Finally, if only the cases of Martic and Seselj were joined, those accused would be confronted with 207 Prosecution witnesses, only two of which would be in common, with 128 witnesses being of no relevance to Martic’s case, and 77 witnesses being of no relevance to Seselj’s case.
  46. These figures speak for themselves. They show that although joinder will decrease to a limited extent the total number of witnesses which the Prosecution would call against the four accused, it will also increase considerably the number of witnesses called by the Prosecution against each accused, and, as a consequence, the length of the trial for each accused. This, in turn, means that it is questionable whether there would be any saving in the overall costs incurred in the event of a joinder.77
  47. The Prosecution’s submission that a substantial number of the Prosecution witnesses in the three cases are proposed Rule 92bis witnesses,78 and that there are additional common Prosecution witnesses who are proposed Rule 92bis witnesses in one case and viva voce witnesses in another does not change this conclusion.79 In the Trial Chamber’s view, decisions on whether evidence could be admitted pursuant to Rule 92bis are to be taken at a later stage of the pre-trial process, and it is not therefore in a position to give weight to these submissions in the exercise of its discretion in favour or against joinder.80
  48. In sum, the Trial Chamber finds that an assessment of the factors relating to judicial economy militate strongly against granting joinder.
  49. Safeguarding the Rights of the Accused, including the Avoidance of Conflicts of Interest

  50. The Prosecution submits that joinder of the three cases will not interfere with the right of the accused to a fair trial because joinder will not lead to any significant delay (the three cases are substantially ready for trial)81 and because a joint trial will not give rise to any conflict of interests that might cause prejudice to the accused.82
  51. Stanisic, Simatovic and Seselj, however, submit that a joint trial will create conflicts of interest among the accused.83 Moreover, all four accused submit that a joint trial will prejudice their fair-trial rights.84 The four accused argue that the three cases are in different stages of pre-trial preparation, and that this means delays will result.85 Stanisic argues that further delays may also be caused by his illness, as well as Seselj’s self- representation and entitlement to translation of all documents into B/C/S.86 All four accused submit that if the cases are joined, the accused will have to deal with a huge volume of evidence that will cause the joint trial to be unmanageable.87 Stanisic and Seselj further argue that a joint trial may also make it difficult to conduct a careful detailed assessment of the alleged liability of each accused.88
  52. With respect to the alleged conflicts of interest, the accused only argue in general terms that conflicts may arise, but provide no support for a finding that a joint trial would cause conflicts of interest within the meaning of the Tribunal’s jurisprudence. According to this jurisprudence, conducting joint trials, where co-accused may testify against each other, does not per se constitute a conflict of interests between accused. Equally, the mere possibility of mutually antagonistic defences does not in itself constitute a conflict of interest capable of causing serious prejudice. This is because trials at the Tribunal are conducted by professional judges who are capable of determining the guilt or innocence of each accused.89 In the Trial Chamber’s view, therefore, no convincing argument has been advanced by any of the accused as to the possibility of a conflict of interests that would prohibit joinder.
  53. With respect to the right of an accused to be tried without undue delay, the Trial Chamber will consider each accused individually.
  54. Martic’s case has been ready for trial for some time.90 In light of the fact that Martic has been in detention for over 3 years and 4 months, he is entitled to have his trial begin with the shortest possible delay. However, joinder is likely to lead to a further delay in the start of a trial against this accused, as well as to a more complex and lengthy trial, with almost four times as many Prosecution witnesses testifying than if he were to be tried alone.
  55. Seselj has been in detention for over 2 years and 7 months. His case is in a different pre-trial stage from the cases of Martic and Stanisic/Simatovic, and does not appear to be ready for trial.91 Therefore, although joinder may not significantly delay the start of the trial against this accused, it would still adversely affect the length of his trial.
  56. Both Stanisic and Simatovic are on provisional release.92 Their case is in a different pre-trial stage from the cases of Martic and Seselj.93 Therefore, although a joinder may expedite the start of a trial against Stanisic and Simatovic, it would, as previously noted, adversely affect the length of their trial.
  57. The Trial Chamber also notes Stanisic’s submission that his illness and Seselj’s self-representation may cause further delays. Other Trial Chambers have recognised that an accused’s self-representation and health problems may obstruct the proper and expeditious conduct of a trial.94 However, it is currently not possible to assess the difficulties that these factors may cause in the future and their impact on joinder. Therefore, the Trial Chamber finds that these factors neither militate in favour nor against joinder.
  58. In light of the foregoing, the Trial Chamber concludes that although there is no basis for finding that joinder would result in a conflict of interests, there are strong grounds for concluding that joinder would adversely affect Martic’s right to a fair and expeditious trial without undue delay and that joinder would prejudice the rights of all four accused to a fair and expeditious trial.95 Although joinder may, to some extent, expedite the start of the trial of Stanisic and Simatovic, the Trial Chamber concludes that this advantage does not outweigh the adverse effect that joinder would have on all accused, in that it will unduly prolong the length of a joint trial.96 This factor—safeguarding the rights of the accused—therefore militates against joining the three cases.
  59. Minimising Hardship to Witnesses

  60. The Prosecution argues that a joint trial will minimise the hardship to common witnesses, many of whom would otherwise be required to give testimony in more than one trial, and that this will enhance their protection.97
  61. Stanisic, however, claims that the aim of protecting witnesses and minimising their hardship is offset by the fact that there is only a limited number of common crime base witnesses.98 Simatovic argues that in a joint trial witnesses will have to face cross-examination by several counsel consecutively in one trial.99 Seselj adds that a joinder will increase the discomfort of non-common witnesses because their identity will be revealed to all four accused.100
  62. According to this Tribunal’s jurisprudence, protecting and minimising hardship to witnesses is a factor that may or may not favour joinder depending on the circumstances of the case.101 In many cases joinder can minimise hardship to common witnesses because having a single trial means that witnesses will not need to travel to The Hague and give direct testimony more than once. However, in the current case there is only one witness who is common to all three cases and 54 witnesses that are common to two of the three cases. If joinder were refused, this relatively limited number of common witnesses would indeed have to travel to The Hague more than once. However, it is also possible that witnesses would be exposed to consecutive cross-examination by each accused. At any rate, where, as here, the number of common witnesses is so limited, the factor of minimising hardship to witnesses does not clearly militate in favour of a joinder.
  63. Consistency in Evaluation of Evidence, Verdicts and Sentences

  64. The Prosecution submits that a joint trial will ensure a consistent approach to the evaluation of evidence, and will ensure uniformity in verdicts and sentences.102 Stanisic and Seselj, however, submit that the aim of achieving consistent verdicts and punishments has no validity when there is very little overlap in the criminal enterprise alleged against each accused.103
  65. The Trial Chamber is aware that a joint trial can ensure a consistent approach regarding the evaluation of evidence, verdicts and sentences.104 However, the Trial Chamber is of the opinion that this factor would be more relevant if the overlap between the cases whose joinder is sought were significant. In the present case, where there is only limited overlap between the crime bases of the Indictments and the witnesses to be called, the relevance of this factor is very limited, and consequently it does not support a finding that joinder should be granted.
  66. V. CONCLUSION

  67. The Trial Chamber concludes that none of the factors that have been taken into account —judicial economy, conflicts of interest and rights of the accused, minimizing hardship for witnesses and consistency in verdicts—militate in favour of a joinder. Indeed, the factors of judicial economy and rights of the accused argue strongly against a joinder because joinder would substantially increase the length of each accused’s trial and in Martic’s case further delay its commencement. Accordingly, the Trial Chamber decides to refuse the request for joinder, and to leave the three cases to be tried separately.
  68. VI. DISPOSITION

  69. For the foregoing reasons, and pursuant to Rule 48 of the Rules, this Trial Chamber hereby orders as follows:
  70. i. The Accused Stanisic is granted leave to file a response to the Joinder Motion which exceeds the page limit;

    ii. The Prosecution is granted leave to file a consolidated reply to the responses of Stanisic and Simatovic to the Joinder Motion;

    iii. The Joinder Motion is denied.

 

Done in English and French, the English version being authoritative.

Dated this 10th day of November 2005,
At The Hague,
The Netherlands.

_________________________
Judge Patrick Robinson
Presiding

[Seal of the Tribunal]


1 - This Trial Chamber was composed following orders issued by the President of the Tribunal appointing Judges Robinson, Agius and Liu to constitute the Trial Chamber for the purpose of determining the Prosecution Motions for Joinder of the cases of Prosecutor v. Milan Martic, Prosecutor v. Jovica Stanisic and Franko Simatovic and Prosecutor v. Vojislav Seselj. See Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Order Reassigning a Case to a Trial Chamber, 7 June 2005; Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Addendum to Order Reassigning a Case to a Trial Chamber, 8 June 2005; Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Order Reassigning a Case and Referring the Joinder Motion, 4 July 2005; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Order Reassigning a Case to a Trial Chamber, 7 June 2005; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Order Reassigning a Case to a Trial Chamber and Referring the Joinder Motion, 4 July 2005; and Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Order Referring the Joinder Motion, 7 July 2005.
2 - Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Prosecution Motion for Joinder, 30 May 2005; Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Prosecution Motion for Joinder, Partly Confidential, 1 June 2005; and Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Prosecution Motion for Joinder, Partly Confidential, 19 July 2005.
3 - The Prosecution mentions that it also contemplates joining the accused Hadzic, who is currently at large. Joinder Motion, para. 1.
4 - Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Indictment, 24 July 1995; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Amended Indictment, 18 December 2002; and Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Amended Indictment, 9 September 2003 (“Martic Indictment”). See also Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Order for Review in Open Court of the Indictment by the Trial Chamber I (Rule 61 of the Rules of Procedure and Evidence), 13 February 1996; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision, 8 March 1996; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision on the Prosecution’s Motion to Request Leave to File a Corrected Amended Indictment, 13 December 2002; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision on Review of Indictment, 1 May 2003; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision on Preliminary Motion Against the Amended Indictment, 2 June 2003; and Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision on Prosecution Motion to File Amended Indictment and on Second Motion against the Amended Indictment, 5 September 2003.
5 - Martic Indictment, paras. 21, 25, 38, 42, 47 and 49 and counts 1-19. The reference in the Joinder Motion to SAO Western Slavonia, SAO Eastern Slavonia, Baranja and Western Srem seems to be an error on the part of the Prosecution. Joinder Motion, para. 3.
6 - Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision on the Motion for Provisional Release, 10 October 2002; Prosecutor v. Milan Martic, Case No. IT-95-11-AR65, Decision on Application for Leave to Appeal, 18 November 2002; and Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Decision on Second Motion for Provisional Release, 12 September 2005.
7 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Indictment, 1 May 2003; and Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Amended Indictment, 9 December 2003 (“Stanisic/Simatovic Indictment”). See also Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Decision on Review of Indictment, 1 May 2003; Prosecutor v. Jovica Stansic and Franko Simatovic, Case No. IT-03-69-PT, Decision on Defence Preliminary Motions, 14 November 2003; and Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Decision on Submission of Amended Indictment; Defence Preliminary Motion (Jovica Stanisic); and Motion on Defect in the Amended Indictment (Franko Simatovic), 29 January 2004.
8 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Prosecution Motion for Leave to Amend the Amended Indictment, Partly Confidential with Ex Parte Supporting Materials, 6 May 2005 (“Stanisic/Simatovic Proposed Amended Indictment”).
9 - Stanisic/Simatovic Indictment, paras. 19, 23, 59 and counts 1-5; and Joinder Motion, para. 6.
10 - Prosecutor v. Jovica Stanisic, Case No. IT-03-69-PT, Decision on Provisional Release, 28 July 2004; and Prosecutor v. Franko Simatovic, Case No. IT-03-69-PT, Decision on Provisional Release, 28 July 2004.
11 - Prosecutor v. Jovica Stanisic, Case No. IT-03-69-AR65.1, Decision on Prosecution’s Appeal Against Decision Granting Provisional Release, 3 December 2004; and Prosecutor v. Franko Simatovic, Case No. IT-03-69-AR65.2, Decision on Prosecution’s Appeal Against Decision on Provisional Release, 3 December 2004.
12 - Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Indictment, 15 January 2003; and Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Modified Amended Indictment, 12 July 2005 (“Seselj Indictment”). See also Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Confirmation of Indictment and Order for the Warrant for Arrest and Surrender, 14 February 2003; Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Motion by Vojislav Seselj, Challenging Jurisdiction and Form of Indictment, 26 May 2004; Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Validity of Appeal of Vojislav Seselj Challenging Jurisdiction and Form of Indictment, 29 July 2004; Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Leave to Amend the Indictment, 27 May 2005; and Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Corrigendum to the Amended Indictment Annexed to the Prosecution’s Motion for Leave to Amend the Indictment, 8 July 2005.
13 - Seselj Indictment, paras. 6, 15, 18, 28-29, 31, 34 and counts 1-14; and Joinder Motion, para. 9.
14 - Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Defence Motion for Provisional Release, 23 July 2004.
15 - Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with His Defence, 9 May 2003; and Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Request of the Accused to Revoke the Ruling of the Trial Chamber to Appoint Standby Counsel (Submissions number 81, 82 and 84), 3 May 2005.
16 - Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Response to Prosecution’s Motion for Joinder, 13 June 2005 (“Martic Response”).
17 - Stanisic filed a motion for leave to file a response to the Joinder Motion which exceeds the page limit. The Trial Chamber grants the motion and takes all the submissions raised in Stanisic’s response into consideration. Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Defence Request for Leave to File a Response to Prosecution Motion for Joinder Which Exceeds the Page Limit, 28 June 2005; Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Defence Response to the Prosecution Motion for Joinder (Dated 1st June 2005), 29 June 2005; and Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Defence Response to Prosecution Motion for Joinder, 29 June 2005 (“Stanisic Response” and “Simatovic Response”).
18 - Prosecutor v. Vojislav Seselj, IT-03-67-PT, Submission by Dr. Vojislav Seselj Opposing the Prosecution Motion for Joinder of Cases, 29 August 2005 (“Seselj Response”).
19 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Prosecution’s Request for Leave to File a Consolidated Reply, with Prosecution’s Consolidated Reply to Jovica Stanisic and Franko Simatovic’s Reponses to the Prosecution Motion for Joinder Annexed Thereto, 5 July 2005.
20 - Prosecutor v. Momir Nikolic et al., Case No. IT-02-53-PT, IT-02-56-PT, Decision on Prosecution's Motion for Joinder, 17 May 2002, para. 14; Prosecutor v. Zeljko Meakic et al., Case No. IT-95-4-PT, IT-95-81-PT, Decision on Prosecution's Motion for Joinder of Accused, 17 September 2002, para. 24; Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-A, Decision on Request to Appeal, 16 May 2000; and Prosecutor v. Vujadin Popovic et al., Case No. IT-02-57-PT, IT-02-58-PT, IT-02-63-PT, IT-02-64-PT, IT-04-80-PT, IT-05-86-PT, Decision on Motion for Joinder, 21 September 2005, para. 8.
21 - Prosecutor v. Slobodan Milosevic, Case No. IT-99-37-PT, IT-01-50-PT, IT-01-51-PT, Decision on Prosecution’s Motion for Joinder, 13 December 2001, para. 37; Prosecutor v. Vidoge Blagojevic et al., Case No. IT-98-33/1-PT, IT-01-43-PT, IT-01-44-PT, Written Reasons Following Oral Decision of 15 January 2002 on the Prosecution's Motion for Joinder, 16 January 2002, para. 17; Prosecutor v. Momir Nikolic et al., supra note 20, para. 13; Prosecutor v. Zeljko Meakic et al., supra note 20, paras. 23-24; and Prosecutor v.Vujadin Popovic et al, supra note 20, para. 8.
22 - Joinder Motion, para. 23.
23 - Ibid, paras. 23-24 and 35; and Prosecution Reply, paras. 8-16.
24 - Joinder Motion, paras. 23-27; and Prosecution Reply, paras. 4-5.
25 - Prosecution Reply, para. 4.
26 - The Prosecution refers to certain statements in the pre-trial briefs in support of this submission. See Joinder Motion, para. 24; and Prosecution Reply, paras. 8-16.
27 - Joinder Motion, paras. 24-25.
28 - Ibid, paras. 28-33.
29 - Prosecution Reply, para. 18.
30 - Joinder Motion, paras. 1 and 35 citing Prosecutor v. Slobodan Milosevic, Case No. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder, 13 December 2001, para. 21.
31 - Prosecution Reply, paras. 7-8
32 - Joinder Motion, para. 21 referring to Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-PT, Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 20.
33 - Stanisic Response, paras. 10, 21 and 25; Simatovic Response, paras. 3 and 15-16; and Seselj Response, para. 18.
34 - Martic Response, para. 3.
35 - Stanisic Response, paras. 4, 6, 8, 10 and 12; Simatovic Response, para. 15; and Seselj Response, paras. 12-13, 16 and 18.
36 - Stanisic Response, paras. 7 and 11-18.
37 - Stanisic Response, paras. 4-6.
38 - Stanisic Response, paras. 17-26; and Seselj Response, para. 17.
39 - Stanisic Response, paras. 18-20, 22 and 24.
40 - Stanisic Response, para. 35; and Simatovic Response, para. 16.
41 - Stanisic Response, para. 27.
42 - Stanisic Response, paras. 4, 13 and 28; Simatovic Response, paras. 16 and 18-21; Martic Response, para. 5; and Seselj Response, para. 19. See also infra, paras. 24-25.
43 - Rules 2 and 48 of the Rules, Prosecutor v. Slobodan Milosevic, supra note 30, paras. 20-21; Prosecutor v. Radoslav Brdjanin and Momir Talic, supra note 32, para. 20; and Prosecutor v. Ntakirutimana et al., ICTR 96-10-I and ICTR 96-17-T, Decision on the Prosecutor’s Motion to Join the Indictments, February 22, 2001.
44 - Joinder Motion, paras. 23-24; and Prosecution Reply, paras. 4-5 and 7-15.
45 - Firstly, the Indictments against Stanisic/Simatovic and Seselj refer to “permanent removal”, while the Indictment against Martic refers only to “removal”. Secondly, the Indictments against Seselj and Martic refer to the “removal of non-Serbs from approximately one third of the territory of Croatia and large parts of BiH”, while the Indictment against Stanisic/Simatovic refers to their “removal from large areas of Croatia and BiH”. Thirdly, the Indictments against Martic and Seselj indicate that the removal of non-Serbs was done “through commissions of crimes under articles 3 and 5 of the ICTY Statute”, while the Indictment against Stanisic/Simatovic refers to “commissions of crimes of Persecutions, Murder, Deportations and Inhumane acts (forcible transfers)”. Moreover, the Indictments against Martic and Seselj allege that the purpose of the JCE was to make the areas mentioned in the Indictments part of a new Serb-dominated state, while the Indictment against Stanisic/Simatovic does not refer to such a purpose. Lastly, only the Indictment against Seselj refers to the removal of non-Serbs from parts of Vojvodina (Serbia). Joinder Motion, paras. 23 and 26-27.
46 - Martic Indictment, counts 1, 3, 4, 10-11 and 15-18; Stanisic/Simatovic Indictment, counts 1-5; and Seselj Indictment, counts 1, 3-4 and 10-11.
47 - Martic Indictment, counts 2, 5-9 and 12-14; and Seselj Indictment, counts 2, 5-9 and 12-14.
48 - Martic Indictment, count 19. Moreover, although the counts charged against Martic and Seselj may largely be similar, they are related to different events.
49 - Martic Indictment, para. 3; Stanisic/Simatovic Indictment, para. 8; and Seselj Indictment, para. 5.
50 - Seselj Indictment, para. 5.
51 - Martic Indictment, paras. 3 and 9.
52 - Martic Indictment, paras. 6 and 21; Stanisic/Simatovic Indictment, paras. 11 and 19; and Seselj Indictment, paras. 8 and 15.
53 - Martic Indictment, paras. 21, 25-34, 39, 42, 44 and 47; and Stanisic/Simatovic Indictment, paras. 19 and 23-32.
54 - Stanisic/Simatovic Indictment, paras. 19, 23, 33, 42-48, 57 and 59; and Seselj Indictment, paras. 15, 17-18, 20-23, 25, 29, 31 and 34.
55 - Martic Indictment, paras. 21, 25, 38-39, 42, 47 and 49.
56 - The allegations with respect to Mrkonjic Grad were omitted from the Stanisic/Simatovic Proposed Amended Indictment.
57 - Stanisic/Simatovic Indictment, paras. 19, 49-56 and 59. The Prosecution seeks to amend the Indictment to include certain events in Srebrenica, which is not a common crime base. Stanisic/Simatovic Proposed Amended Indictment, paras. 19, 23, 55-65 and 68.
58 - Seselj Indictment, paras. 15, 16, 18-19, 24, 24, 26-27, 29, 31 and 34.
59 - The Trial Chamber is aware that the Seselj Indictment refers to crimes that are alleged to have been committed in the Republic of Serbian Krajina (“RSK”), and alleges that on 19 December 1991 the SAO Krajina proclaimed itself the RSK and on 26 February 1992 the SAO Western Slavonia, SAO SBWS and the Dubrovnik Republic joined the RSK. This, however, does not change the Trial Chamber’s conclusion that there is no overlap between the geographical location of crimes alleged in the Indictments of Martic and Seselj. Seselj Indictment, para. 6.
60 - Prosecutor v. Slobodan Milosevic, supra note 30, paras. 19-21.
61 - Prosecutor v. Slobodan Milosevic, supra note 21, para. 45.
62 - Prosecutor v. Slobodan Milosevic, supra note 21, paras. 45-46.
63 - Prosecutor v. Slobodan Milosevic, supra note 30, paras. 19-20.
64 - Ibid, paras. 19-21.
65 - Ibid. para. 20.
66 - Ibid, para. 21.
67 - Ibid, para. 13.
68 - Joinder Motion, paras. 36-40.
69 - Prosecution Reply, para. 18; and Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Rule 65ter Conference, T. 245, 27 September 2005 (“Rule 65ter Conference”).
70 - Stanisic Response, paras. 33-37; Simatovic Response, paras. 17-18, 24 and 26; Martic Response, paras. 4-5, 7 and 13; and Seselj Response, paras. 8 and 20.
71 - Stanisic Response, para. 32.
72 - Simatovic Response, para. 25.
73 - Seselj Response, para. 8.
74 - Stanisic Response, para. 36; and Simatovic Response, para. 25.
75 - This estimate is slightly different from the one given by the Prosecution in the Rule 65ter Conference. See T. 267.
76 - Joinder Motion, paras. 37-38; and Rule 65ter Conference, T. 267.
77 - For example, it seems that because a joinder would extensively prolong the length of the trial for each of the accused, it would also lead to additional costs for such issues as legal aid, to the extent that the accused have shown eligibility for the payment of such aid.
78 - Rule 65ter Conference, T. 267; and Prosecution Reply, para. 18.
79 - Joinder Motion, para. 38.
80 - The Prosecution also submits that it is willing to consider dropping certain crime base allegations. However, the Trial Chamber observes that no further indication is given of allegations it might be willing to drop and that the Prosecution has not stated that it will in fact do so should joinder be ordered.
81 - Joinder Motion, para. 43; and Prosecution Reply, paras. 19-20.
82 - Joinder Motion, paras. 43-44
83 - Stanisic Response, paras. 41 and 44; Simatovic Response, para. 22; and Seselj Response, para. 9.
84 - Martic Response, para. 12; Stanisic Response, paras. 50-58; Simatovic Response, paras. 5, 22 and 26; and Seselj Response, para. 20.
85 - Stanisic Response, paras. 52-54; Simatovic Response, paras. 5-8 and 26; Martic Response, paras. 8-12; and Seselj Response, paras. 8 and 14.
86 - Stanisic Response, paras. 45-49.
87 - Martic Response, para. 13; Stanisic Response, paras. 40 and 42-44; Simatovic Response, para. 18; and Seselj Response, paras. 14 and 20.
88 - Stanisic Response, para. 40; and Seselj Response, para. 20.
89 - Prosecutor v. Ndayambaje, Case No. ICTR-96-8-T, Decision on the Defence Motion for a Separate Trial, 25 April 2001, para. 11; Prosecutor v. Brdjanin and Momir Talic, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002, para. 21 citing Prosecutor v. Simic et al., Case No. IT-95-9-PT, Decision on Defence Motion to Sever Defendant and Counts, 15 March 1999; and Prosecutor v. Vujadin Popovic et al., supra note 20, para. 32.
90 - Both the Prosecution and the Defence submitted their pre-trial briefs on 7 May 2004 and 1 November 2004, respectively. Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Partially Confidential Prosecution’s Pre-Trial Brief, 7 May 2004; and Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Defence’s Pre-Trial Brief Pursuant to Rule 65ter(F) (with a Confidential Annex), 1 November 2004.
91 - As previously noted, the Seselj Indictment was amended on 12 July 2005. However, the Prosecution did not amend its pre-trial brief and the Defence did not submit a pre-trial brief. Prosecutor v. Vojislav Seselj, supre note 12; and Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Prosecution’s Pre-Trial Brief, 28 October 2004.
92 - Prosecutor v. Jovica Stanisic, supra note 10; Prosecutor v. Franko Simatovic, supra note 10; Prosecutor v. Jovica Stanisic, supra note 11; and Prosecutor v. Franko Simatovic, supra note 11.
93 - As previously noted, on 6 May 2005 the Prosecution filed a motion for leave to amend the amended Indictment. Prosecutor v. Jovica Stanisic and Franko Simatovic, supra note 8.
94 - Regarding the issue of self representation see Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 13; and Prosecutor v. Momcilo Krajisnik, Reasons for Oral Decision Denying Mr Krajisnik’s Request to Proceed Unrepresented by Counsel, 18 August 2005, paras. 24 and 33. Regarding the issue of health-related difficulties see Prosecutor v. Radoslav Brdjanin and Momir Talic, supra note 89.
95 - Articles 20(1) and 21(4)(c) of the Statute. The Tribunal’s jurisprudence recognised that the right to an expeditious trial is an inseparable and constituent element of the right to a fair trial. Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-AR73.5, Decision on Interlocutory Appeal by the Accused Zoran Zigic Against the Decision of Trial Chamber I Dated 5 December 2000, 25 May 2001, para. 20.
96 - The Trial Chamber notes that the European Court of Human Rights (“ECtHR”) and the United Nations Human Rights Committee have taken various decisions on what may constitute 'unreasonable time' or 'undue delay'. Among these decisions are Ledonne (No. 2) v. Italy, ECtHR, 12 May 1999, para. 23; Majaric v. Slovenia, ECtHR, 8 February 2000, paras. 33-39; and Pélissier v. France, ECtHR, 25 March 1999, paras. 67 and 74. Communication No. 336/1988: Bolivia, UN Doc. CCPR/C/43/D/336/1998, 6 November 1991, para. 6.5.
97 - Joinder Motion, para. 40; and Prosecution Reply, paras. 23-24.
98 - Stanisic Response, para. 38.
99 - Simatovic Response, para. 24.
100 - Seselj Response, para. 19.
101 - Prosecutor v. Vujadin Popovic et al., supra note 20, para. 25.
102 - Joinder Motion, paras. 41-42; and 54 and Prosecution Reply, para. 26.
103 - Stanisic Response, paras. 33-37 and 39; and Seselj Response, para. 19.
104 - Prosecutor v. Vujadin Popovic et al., supra note 20, para. 27.