IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of:
19 October 1999
PROSECUTOR
v.
MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC
PROSECUTOR
v.
DRAGAN KOLUNDZIJA
___________________________________________________________
DECISION ON PROSECUTORS MOTION FOR JOINDER
____________________________________________________________
The Office of the Prosecutor:
Mr. Grant Niemann
Mr. Kapila Waidyaratne
Mr. Michael Keegan
Counsel for the Accused
Mr. Toma Fila, for Mlado Radic
Mr. Krstan Simic, for Miroslav Kvocka
Mr. Simo Tosic, for Zoran Zigic
Mr. Zarko Nikolic, for Milojica Kos
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 ("the
International Tribunal"),
BEING SEISED of a "Motion for
Joinder" ("Motion"), filed by the Office of the Prosecutor ("the
Prosecution") on 22 July 1999, and the responses of counsel for Mlado Radic1, Milojica Kos2, Miroslav
Kvocka3 and for Dragan Kolundzija4,
NOTING the written submissions of the parties and their oral
arguments heard on 27 and 29 September 1999,
NOTING that charges against Mlado
Radic, Milojica Kos, Miroslav Kvocka, and Zoran Zigic are contained in Indictment
IT-98-30 (relating to both the Omarska and Keraterm camps) and the charges against Dragan
Kolundzija are contained in Indictment IT-95-8 (relating mostly to the Keraterm camp),
NOTING the request of the Prosecution to sever Dragan Kolundzija
from Indictment IT-95-8 and to join him to Indictment IT-98-30 on the following grounds:
- all of the accused named in these two Indictments are alleged to have been participants
in the same transaction: an organised effort to "cleanse" the Prijedor area of
Muslims and Croats. Joinder of these accused is therefore appropriate under Rule 48 of the
Rules of Procedure and Evidence of the International Tribunal ("Rules");
- all of the acts committed by the five accused form part of the "same
transaction", thus permitting joinder of these crimes into a single Indictment under
Rule 49;
- joinder would promote judicial economy, reduce witness trauma, and conserve the
resources of the International Tribunal; conversely severance would inevitably cause
delay;
- joinder would serve the interests of the accused Dragan Kolundzija by expediting the
commencement of his trial;
- joint trials before the International Tribunal should be the norm rather than the
exception, as international crimes tend to be collective in their nature (Judgement of the
Appeals Chamber in Prosecutor v. Tadic on "common design"5);
- the distinction between Omarksa and Keraterm camps is artificial. Both camps were part
of a campaign of persecution on a Prijedor-wide basis;
NOTING that the Defence argue as follows:
- the Prosecution interprets the phrase "same transaction" so widely as to
implicate all accused of Serb ethnicity in the "ethnic cleansing" of the
Prijedor municipality. This is a theory of collective guilt, which violates the principle
of individual criminal responsibility;
- there is no connection between the events that occurred in the Omarska and Keraterm
camps. Those accused indicted for acts allegedly committed in the Omarska camp have
nothing to do with acts said to have been committed at Keraterm;
- the conditions of Rule 48 are not met and Rule 49 is inapplicable ;
- the two cases are at completely different phases of preparation for trial (one is ready
for trial whereas the other is just commencing the pre-trial phase). Joinder would
inevitably violate the rights of the accused Miroslav Kvocka,
Milojica Kos, Mlado Radic and Zoran igic to an expeditious trial;
- future arrests could lead to even further delays in the trial of the accused Miroslav
Kvocka, Milojica Kos, Mlado Radic and Zoran igic;
- Defence counsel for Dragan Kolundzija argues that he is in any case entitled to an
expeditious trial and the Prosecution cannot argue this as an incentive;
- Defence counsel for Mlado Radic argues that joinder would make it impossible to proceed
at this s
tage with the proposal to take evidence by way of deposition;
- Defence counsel for Mlado Radic and Milojica Kos propose that the proceedings against
Zoran igic and Dragan Kolundzija be severed from the rest and that separate trials
relating to the Omarska
and Keraterm camps should take place;
- Defence counsel for the accused Dragan Kolundzija argues that joinder would lead to a
conflict of interests and possible antagonistic defences which would prejudice the rights
of the accused;
NOTING that Rule 48 deals with joinder of accused, stating that
"persons accused of the same or different crimes committed in the course of the same
transaction may be jointly charged and tried"6,
NOTING that Rule 49 deals with joinder of crimes committed by the
same accused, stating that "two or more crimes may be joined in one indictment if the
series of acts committed together form part of the same transaction, and the said crimes
were committed by the same accused",
CONSIDERING that it is Rule 48 which applies in this case since the
application seeks to join Dragan Kolundzija to those currently accused under Indictment
IT-98-30,
CONSIDERING that in an earlier Decision in this case the Trial
Chamber found that "the crimes alleged in the Amended Indictment that were committed
in and around the municipality of Prijedor in Bosnia and Herzegovina from approximately 1
April 1992 to 30 August 1992 were committed in the course of the same
transaction"7,
CONSIDERING that, even in the case of a single transaction, a joint
trial is not mandatory under Rule 48 but that joinder is a matter for the discretion of
the Trial Chamber,
CONSIDERING that, in the Decision referred to above, the Trial
Chamber noted the existence of such discretion but found that the relevant accused had
presented no evidence to support a finding that a joint trial would cause him prejudice,
CONSIDERING that pursuant to Rule 82 (B), the Trial Chamber may
order separate trials "to avoid a conflict of interests that might cause serious
prejudice to an accused" or "to protect the interests of justice",
CONSIDERING, however, that joining the accused Dragan Kolundzija to
Indictment IT-98-30 is not in the interests of justice as it would delay the proceedings
against the other accused charged in that Indictment,
CONSIDERING the fundamental obligation of the Trial Chamber,
pursuant to Article 20 of the Statute of the International Tribunal, to ensure fair and
expeditious trials,
FOR THE FOREGOING REASONS
PURSUANT TO Rule 82 of the Rules of Procedure and Evidence,
HEREBY DISMISSES THE MOTION.
Done in both English and French, the English text being
authoritative.
______________________
Richard May
Presiding Judge
Dated this nineteenth day of October 1999
At The Hague
The Netherlands
[Seal of the Tribunal]
1. Defence Response to Prosecutors Request
for Leave to Amend Indictments IT-95-8-PT and IT-98-30-PT, 25 June 1999.
2. Defence Response to Prosecutors Request for Leave to Amend
Indictments IT-95-8-PT and IT-98-30-PT, 5 July 1999.
3. Filing, 5 Aug. 1999; Reply to Prosecutions Motion for Joinder,
18 Aug. 1999; Respond on Prosecutions Submission of Amended Indictment in Case No.
IT-95-8-PT, 20 Sept. 1999; Addition to the Answer on Prosecutors Request for
Joinder, 30 Sept. 1999.
4. Defence Response in Opposition to the Prosecutors Request, 16
Aug. 1999.
5. Judgement, Prosecutor v. Dusko Tadic, IT-94-1-A, A.Ch, 15 July
1999:"(Para. 191) The above interpretation is not only dictated by the object and
purpose of the Statute but is also warranted by the very nature of many international
crimes which are committed most commonly in wartime situations. Most of the time these
crimes do not result from the criminal propensity of single individuals but constitute
manifestations of collective criminality: the crimes are often carried out by groups of
individuals acting in pursuance of a common criminal design . . . .(Para. 193) This
interpretation, based on the Statute and the inherent characteristics of many crimes
perpetrated in wartime, warrants the conclusion that international criminal responsibility
embraces actions perpetrated by a collectivity of persons in furtherance of a common
criminal design . . . (Para. 232) Accordingly, the only possible inference to be drawn is
that the Appellant had the intention to further the criminal purpose to rid the Prijedor
region of the non-Serb population, by committing inhumane acts against them. That
non-Serbs might be killed in the effecting of this common aim was, in the circumstances of
the present case, forseeable . . . ."
6. Rule 2 defines "transaction" 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".
7. Decision on Defence Preliminary Motions on the Form of the Indictment,
12 Apr. 1999.