Case No.: IT-98-30/1-A

Before:
Judge Mohamed Shahabuddeen, Presiding Judge
Judge Fausto Pocar
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg De Roca

Registrar:
Mr. Hans Holthuis

Decision of:
24 November 2003

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellants:

Mr. Krstan Simic for Miroslav Kvocka
Mr. Toma Fila for Mlado Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub Prcac

THE APPEALS 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 “Request for Separation of Miroslav Kvocka’s Appeal Procedure ” filed on 17 October 2003 (“Motion”), in which Miroslav Kvocka (“Appellant”) seeks to have his appeal procedure separated from that of his co-Appellants for the following reasons:

1) The Judgement was issued almost 2 years ago;¹
2) Disclosure is an ongoing process and the end is uncertain;²
3) The Appellant has not filed any Rule 115 Motions, while his co-Appellants have filed Rule 115 Motions;³
4) The Appellant’s case can be considered separately due to his status, and the time he spent in Omarska camp;⁴
5) The Appellant has a right to an expeditious trial;⁵ and
6) The Appellant has, on 9 December 2002, spent two-thirds of his sentence in detention ;⁶

NOTING the “Prosecution’s Response to Miroslav Kvocka’s ‘Request for Separation of Miroslav Kvocka’s Appeal Procedure’” filed on 27 October 2003 (“Response”), in which the Prosecution submits that the request should be denied for the following reasons:

1) The Appellant’s previous “Motion for Separation of Appellant Zigic’s Appeal Procedure ” only requested the separation of co-Appellant Zigic;⁷
2) The Motion contains paragraphs that revisit factual and legal positions either adopted by the Prosecution or arrived at by the Trial Chamber in its Judgement, which are, inter alia, the subject matter of the present appeal proceedings and the Appellant has not shown how reference to these positions supports the present Motion ;⁸
3) The co-Appellants were charged in the same indictment, and the Appellant has not demonstrated any ground or good reason to justify being treated separately in accordance with a different and expedited schedule and his entitlement to a judgement before the other appeals are completed;⁹
4) Assuming that severance can be ordered in appellate proceedings under Rule 107 of the Rules of Procedure and Evidence (“Rules”), severance can only be ordered in accordance with Rule 82(B) of the Rules, to “avoid a conflict of interests that might cause serious prejudice…and to protect the interest of justice”;¹⁰
5) The appeals of all the Appellants, convicted as they are with offences arising from the same course of conduct as part of a joint criminal enterprise, should be heard together;¹¹

NOTING the Appellant’s “Reply to Prosecution’s Response to Kvocka’s ‘Request for Separation of Miroslav Kvocka’s Appeal Procedure’ and Kvocka’s Request for Provisional Release Pending Hearing of the Appeal” filed on 5 November 2003 (“Reply” and “Request for Provisional Release”),¹² in which the Appellant:

1) submits that the Prosecution’s allegations that the Appellant should be denied the right for separate appeal procedure are not legally based;
2) submits that it is in the interest of justice that the Appellant be brought in the equal position with others in a similar position to him;
3) and also requests to be provisionally released pending the hearing of this appeal ;

NOTING that the Reply was filed 5 days out of time according to paragraph 12 of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155.Rev.1) but that, pursuant to Rule 127(A)(ii) of the Rules, a Chamber “may, on good cause being shown by motion, recognise as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired”;

CONSIDERING that the delay in the filing of the Reply did not prejudice the proceedings in this appeal;

FINDING that there is good cause in the terms of Rule 127 of the Rules;

RECOGNISING therefore in the circumstances of this case the filing of the Reply as validly done;

CONSIDERING that it is the practice of the International Tribunal, pursuant to Rule 48 of the Rules, to try persons jointly accused of the same or different crimes committed in the course of the same transaction;

CONSIDERING that Rule 82(B) of the Rules provides that “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”;

CONSIDERING that a decision under Rule 82(B) of the Rules, as to whether or not persons accused jointly under Rule 48 of the Rules should be tried separately, involves the exercise of judicial discretion;¹³

CONSIDERING that the Appellant Kvocka was tried jointly with several co-accused, that they were found by the Trial Chamber to have participated in a joint criminal enterprise at the Omarska camp, that all but one of them have appealed with regard to the issue of joint criminal enterprise¹⁴, and that a joint appeal hearing would therefore be in the interests of judicial economy;

CONSIDERING that no conflict of interest that might cause serious prejudice to the Appellant exists, nor is a separate appeal procedure necessary to protect the interests of justice;

CONSIDERING, that pursuant to Rule 68 of the Rules and the established jurisprudence of the International Tribunal, the Prosecution is under a continuing obligation to disclose exculpatory material to the Defence even in appeal proceedings and that action taken in pursuance of that Rule is not therefore supportive of a case of severance since any material disclosed pursuant to that Rule might also affect the case of the Appellant;

CONSIDERING as to the fact that the Appellant has served 2/3 of his sentence since 9 December 2002, that, in accordance with Rule 102(A) of the Rules, the sentence stands suspended during the appeal, and that the “Order of the President in Response to Miroslav Kvocka’s Request for Pardon” rendered on 7 August 2003 noted that “to be properly considered, a petition for provisional release should be filed before the Appeals Chamber”;¹⁵

CONSIDERING that Rule 65(I) of the Rules requires that the Appeals Chamber be satisfied that the applicant, if released:

i) will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be”,
(ii) “will not pose a danger to any victim, witness or other person”, and
(iii) “special circumstances exist warranting such release”;

CONSIDERING further, that the Request for Provisional Release contained in the Reply does not address the conditions spelled out in Rule 65(I) of the Rules but that, in the special circumstances of this case, the Appellant should be given an opportunity to address those conditions;

HEREBY DISMISSES the Motion,

GIVES 20 days from the date thereof for the Appellant, by motion, to address the conditions spelled out in Rule 65(I) of the Rules, and

ORDERS that, in default, the Request for Provisional Release stands dismissed as at the expiry of that period.

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

_______________
Mohamed Shahabuddeen
Presiding Judge

Dated this 24th November 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]