Decision on Motion for Certification of Joinder Decision for Interlocutory Appeal

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

IN TRIAL CHAMBER III

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

Registrar:
Mr. Hans Holthuis

Decision of:
6 October 2005

THE PROSECUTOR v. VUJADIN POPOVIC
THE PROSECUTOR v. LJUBISA BEARA
THE PROSECUTOR v. DRAGO NIKOLIC
THE PROSECUTOR v. LJUBOMIR BOROVCANIN
THE PROSECUTOR v. ZDRAVKO TOLIMIR, RADIVOJE MILETIC & MILAN GVERO
THE PROSECUTOR v. VINKO PANDUREVIC & MILORAD TRBIC

_____________________________________________

DECISION ON MOTION FOR CERTIFICATION OF JOINDER DECISION FOR INTERLOCUTORY APPEAL

_____________________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Zoran Zivanovic for Vujadin Popovic
John Ostojic for Ljubisa Beara
Jelena Nikolic for Drago Nikolic
Alan Newman and Miodrag Stojanovic for Ljubomir Borovcanin
Natacha Fauveau Ivanovic for Radivoje Miletic
Dragan Krgovic for Milan Gvero
Djorde Sarapa for Vinko Pandurevic
Colleen Rohan for Milorad Trbic

I. Introduction

1. On 10 June 2005, the Prosecution filed a “Motion for Joinder of Accused”, seeking to join six cases involving nine accused together in one indictment.¹ On 29 June 2005, the President of the Tribunal issued an order appointing Judges Robinson, Agius and Liu to constitute the Trial Chamber “for the purpose of determining the Joinder Motion.”²

2. On 21 September 2005, the Trial Chamber issued a decision granting the motion for joinder (“Decision”). Judge Patrick Robinson appended a Separate Opinion to the Decision.

3. On 27 September 2005, the accused Pandurevic and Miletic filed separate motions for certification of the Trial Chamber’s Decision for interlocutory appeal (“Motions”).³ The Prosecution filed a consolidated response to the Motions 3 days later.⁴

4. On 3 October 2005, Miletic filed a reply to the Prosecution’s response, along with a motion for leave to file it.⁵

II. The Standard

5. According to Rule 73 (B) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), “[d]ecisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.”

6. In other words, a Trial Chamber can only exercise its discretion to certify a decision for interlocutory appeal if two criteria are satisfied: (1) the decision involves an issue which would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and (2) an immediate resolution of this issue may, in the opinion of the Trial Chamber, materially advance the proceedings . These two criteria are cumulative: they must both be satisfied if certification is to be granted.⁶

III. Arguments

7. The accused Miletic makes the following arguments in favour of certification:

The Trial Chamber “did not correctly interpret the right to present evidence” when it accepted the Prosecution’s claim that, even though Miletic is not charged with crimes relating to the alleged mass killings, there would be a considerable overlap between the evidence presented against him and the evidence presented against the other accused;⁷
The Trial Chamber “did not correctly assess” the potential prejudice that Miletic could suffer in a joint trial as a result of the presentation in his trial of evidence which is not relevant to the charges against him;⁸
This issue “is extremely important for the conduct of the trial and for its outcome ” and “directly affects the right of the accused guaranteed by the Tribunal’s Statute ”;⁹
“Since a joinder could prejudice the rights of the accused and the fairness of the trial in an irreversible and irreparable manner, this matter must be disposed of once and for all prior to the commencement of the trial”¹⁰, and
An “immediate resolution may materially advance the proceedings” because although the defence could at a later stage file a motion seeking separate trials, “such a step would cause delays in the proceedings”¹¹, and “should an error of law be committed in the decision on joinder … a new trial might be necessary.”¹²

8. The accused Pandurevic makes the following arguments in favour of certification:

“[T]he case of Vinko Pandurevic differs substantially from the cases of all other accused persons. Accordingly there is no same transaction for the purpose of the provisions of Rule 48 of the Rules of Procedure and Evidence as a base [sic] for joinder”;¹³
Because “the case of Vinko Pandurevic [is] different from all the other accused … [a] joint trial with other accused would not be fair for him for the purpose of the provisions of Article 20 of the Statute”¹⁴, and
The conditions in Rule 73(B) are satisfied and “the filing of the appeal is in the interest of justice.”¹⁵

9. The Prosecution, in its consolidated response, argues that:

The Motions fail to identify an error of law or fact in the Trial Chamber’s Decision and in large part simply reiterate the arguments set out in earlier pleadings opposing joinder;¹⁶
Pandurevic reiterates the argument that there is no “same transaction” for purposes of joinder under Rule 48 but points out no error of law or fact in respect of this conclusion by the Trial Chamber; indeed, such a conclusion is clearly supported by the Tribunal’s jurisprudence;¹⁷
Miletic reiterates the argument that he would be prejudiced by joinder because in a joint trial the Prosecution could present evidence regarding the commission of mass murders which is not relevant to him, but establishes no error of law in respect of the conclusions of the Trial Chamber; indeed, “the Indictment clearly alleges that Miletic was a named member of the joint criminal enterprise which includes the mass murders of the able-bodied men of Srebrenica. Therefore, the Prosecution is entitled in law … to lead evidence of the mass murders which are relevant to the proof of the joint criminal enterprise”;¹⁸
The Motions fail to demonstrate that the Decision would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and
The Motions fail to demonstrate that an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings.¹⁹

IV. Discussion

10. The Trial Chamber is satisfied that the cumulative requirements of Rule 73 (B) have been met.²⁰

11. The first requirement of Rule 73(B) is met because the Decision involves an issue – the right of an accused to be accorded the same rights in a joint trial as he would have if tried separately – which significantly affects the fair and expeditious conduct of the proceedings.

12. The second requirement of Rule 73(B) is also met because if the Appeals Chamber were to find the Decision flawed, it may be necessary to conduct new trials in which one or more accused are severed from the rest, an outcome which would be prejudicial to the accused, to witnesses and to the interests of justice and judicial economy. Therefore an immediate resolution of this issue by way of interlocutory appeal may, in the Trial Chamber’s view, materially advance the proceedings.

13. Finally, the Trial Chamber believes that its decision on certification is aided by consideration of all the arguments raised by the parties and therefore grants Miletic’s motion for leave to file his Reply to the Response of the Prosecutor concerning the Motion for Certification of the Appeal dated 27 September 2005.

V. Disposition

14. For these reasons, pursuant to Rule 73 of the Rules, this Trial Chamber hereby GRANTS the motions for certification and GRANTS Miletic’s motion for leave to file the Reply to the Response of the Prosecutor concerning the Motion for Certification of the Appeal dated 27 September 2005.

Judge Liu appends a Partially Dissenting Opinion to this Decision.

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

_________________________
Judge Patrick Robinson
Presiding

Dated this 6th day of October 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Motion for Joinder of Accused, Prosecutor v. Popovic, IT-02-57-PT, Prosecutor v. Beara, IT-02-58-PT, Prosecutor v. Nikolic, IT-02-63-PT, Prosecutor v. Borovcanin, IT-02-64-PT, Prosecutor v. Tolimir et al., IT-04-80-PT, Prosecutor v. Pandurevic and Trbic, IT-05-86-PT, 10 June 2005. The accused are Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Miletic, Milan Gvero, Vinko Pandurevic and Milorad Trbic.
2 - See Order Referring the Joinder Motion and Corrigendum to Order Referring the Joinder Motion, Prosecutor v. Popovic, IT-02-57-PT, Prosecutor v. Beara, IT-02-58-PT, Prosecutor v. Nikolic, IT-02-63-PT, Prosecutor v. Borovcanin, IT-02-64-PT, Prosecutor v. Tolimir et al., IT-04-80-PT, Prosecutor v. Pandurevic and Trbic, IT-05-86-PT, 29 June 2005 and 4 July 2005 respectively.
3 - Vinko Pandurevic’s Defence Request for Certification to File the Interlocutory Appeal Against the Trial Chamber’s Decision on Motion for Joinder, Case No. IT-04-86-PT, 27 September 2005 (“Pandurevic Motion”); Request for Certification to Appeal the Decision on Motion for Joinder of 21 September 2005, Prosecutor v. Tolimir et al., IT-04-80-PT (“Miletic Motion”). Although the Motions were filed before Trial Chamber II, Trial Chamber III, as the Chamber which rendered the Decision, has jurisdiction over applications for its certification. See also Order Referring the Joinder Motion, supran. 2.
4 - Prosecution’s Consolidated Response to Vinko Pandurevic’s and Radivoje Miletic’s Application for Certification of Decision on Motion for Joinder, Case No. IT-04-80 and IT-04-86, 30 September 2005 “Prosecution Response”).
5 - Application for Leave to Reply and Reply to the Response of the Prosecutor concerning the Motion for Certification of the Appeal dated 27 September 2005, Prosecutor v. Tolimir et al., IT-04-80-PT, 3 October 2005 (“Miletic Reply”).
6 - See, e.g., Prosecutor v. Mejakic et al., Case No. It-02-65-PT, Decision on Knezevic's Motion for Certification for Interlocutory Appeal of ‘Decision on Prosecution’s Motion to Amend Consolidated Indictment Schedules A through F, the Rule 65 Ter Witness Summaries, and the Pre-Trial Brief Incident Summaries’, 25 January 2005.
7 - Miletic Motion, paras. 8-12.
8 - Id. at para. 6. Miletic argues that the Trial Chamber’s conclusions (a) that prejudice to the rights of each accused was not an “inevitable consequence” of joinder and (b) that in the present case, the risk of such prejudice was remote, were both wrong. Id. at para. 13. Miletic goes on to argue that the Decision itself “shows that there is a genuine risk of prejudice” when it states that a Trial Chamber in a joint trial could regulate cross-examination by prohibiting repetitive questions by consecutive counsel for the accused. Such regulation would, according to Miletic, violate the right of an accused to be accorded the same rights in a joint trial as he would have had if he were tried separately (Rule 82(A)) and his right to cross-examine witnesses through his own counsel (Article 21 of the Statute). Id. at paras. 19-21.
9 - Miletic Reply, para. 10.
10 - Miletic Motion, para. 7.
11 - Id. at para. 25.
12 - Miletic Reply, para. 15.
13 - Pandurevic Motion, para. 6.
14 - Id. at para. 7.
15 - Id. at para. 9.
16 - Prosecution Response, para. 7.
17 - Id. at paras. 8-11.
18 - Id. at para. 15. See also id. at para. 16. But see Miletic Reply, para. 11.
19 - Prosecution Response, para. 17.
20 - The Trial Chamber notes that many of the arguments in the Motions concern the merits of the arguments to be made on appeal, as opposed to the merit of the request to have that appeal heard on an interlocutory basis. As another Trial Chamber has recently held, a “request for certification is not concerned with whether a decision was correctly reasoned or not. That is a matter for appeal, be it an interlocutory appeal or one after final Judgement has been rendered. Rule 73(B) concerns the fulfilment of two criteria, after which the Trial Chamber may decide to certify an interlocutory appeal. If it does, then the reasoning of the appealed decision immediately will be assessed by the Appeals Chamber. If it does not, the reasoning may be challenged by the Prosecution after the rendering of the final Judgement, and the Appeals Chamber, at that time, will assess the reasoning of the decision.” Prosecutor v. Miloševic, Case No. IT-02-54-T, Decision on Prosecution Motion for Certification of Trial Chamber Decision on Prosecution Motion for Voir Dire Proceeding, 20 June 2005, para. 4. For these reasons, only the arguments relevant to the two criteria in Rule 73(B) have been considered in reaching this decision.