Case No.: IT-99-37-AR73
BEFORE THE APPEALS CHAMBER
Judge Claude Jorda, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Fausto Pocar
Judge Theodor Meron
1 February 2002
Counsel for the Prosecutor:
Ms Carla Del Ponte
Mr Geoffrey Nice
Mr Norman Farrell
Ms Peggy Kuo
Mr Slobodan Milosevic
Mr Steven Kay
Mr Branislav Tapuskovic
Mr Michaïl Wladimiroff
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,
BEING SEIZED OF an interlocutory appeal of the Prosecution filed on 15 January 2002 (“the Application”) against the “Decision on Prosecution’s Motion for Joinder” issued by Trial Chamber III on 13 December 2001 (“Impugned Decision”), refusing to join the Indictment against Slobodan Milosevic (“Accused”) relating to crimes alleged to have been committed in Kosovo (“Kosovo Indictment”) with the Indictments relating to crimes alleged to have been committed in Croatia (“Croatia Indictment”) and Bosnia (“Bosnia Indictment”), but deciding that the Croatia and Bosnia Indictments should be joined;
NOTING the “Decision on Prosecution Application for Leave to File an Interlocutory Appeal” rendered by a Bench of the Appeals Chamber on 9 January 2002 granting leave to appeal;
NOTING that an oral hearing took place on 30 January 2002 to hear the Parties’ submissions upon the issues raised in the present appeal;
CONSIDERING that the interpretation of the expression “the same transaction” in Rule 49 of the Rules of Procedure and Evidence (“Rules”) is a question of law;
AND CONSIDERING that the decision of a Trial Chamber under Rule 49 as to whether there should be a joinder is a discretionary one;
BEING SATISFIED that, based upon arguments as to the correct interpretation of Rule 49 which had not been put by the Prosecution to the Trial Chamber for its consideration, the Trial Chamber misdirected itself as to the correct interpretation of the Rule, and that this error of law invalidated that decision and vitiated the exercise by the Trial Chamber of its discretion;
CONSIDERING that, in accordance with usual appellate practice, the Appeals Chamber should therefore exercise its own discretion in substitution for that of the Trial Chamber;
BEING SATISFIED that, upon the correct interpretation of Rule 49, the acts alleged in the Croatia, Bosnia and Kosovo Indictments (“Three Indictments”) form the same transaction;
BEING ALSO SATISFIED in accordance with Rule 49 that the crimes charged in the Three Indictments are alleged to have been committed by the Accused;
NOTING the statement made by the Prosecution to the Appeals Chamber that it is ready to proceed in relation to the Kosovo Indictment on 12 February 2002;
NOTING ALSO the assurances given to the Appeals Chamber by the Prosecution that it will be ready to proceed with the Croatia and Bosnia Indictments on 1 July 2002, that it will be in a position to present its list of witnesses, its list of exhibits and its Pre-Trial Brief relating to these two Indictments by 1 April 2002, and that it will not seek further time during the trial for the preparation of its case in relation to those Indictments;
CONSIDERING that, if there were to be a joinder and if the trial were to proceed on 12 February 2002, the evidence relating to the Croatia and Bosnia Indictments should not be adduced until the material relevant to those Indictments (including that which must be disclosed pursuant to Rules 66 and 68) has been made available to the Accused and until his rights pursuant to Article 21 of the Tribunal’s Statute in relation to that material have been complied with;
AND CONSIDERING that, upon that basis, the Appeals Chamber should exercise its discretion to order that there should be only one trial of the Three Indictments;
HEREBY ALLOWS the Prosecution’s appeal and ORDERS as follows:
(1) The Three Indictments shall be tried together in the one trial.
(2) For the purposes of that one trial, the Three Indictments shall be deemed to constitute one Indictment.
(3) The case against the Accused shall be given a single case number.
(4) Unless the Trial Chamber otherwise decides, the trial shall commence on 12 February 2002 with evidence relevant only to the charges relating to Kosovo being adduced until it becomes appropriate, in accordance with the views stated above by the Appeals Chamber, to adduce evidence also relevant to the charges relating to Croatia and Bosnia.
(5) The Prosecution shall make available to the Accused as soon as possible the material relevant to the charges relating to Croatia and Bosnia (including that which must be disclosed pursuant to Rules 66 and 68).
(6) The Trial Chamber may, if it so decides, require the Prosecution in its Opening Address, and notwithstanding that the material referred to in the last Order has not by that time been made available to the Accused, to give a general outline of its case in relation to all Three Indictments sufficient to provide assistance to the Trial Chamber in relation to any issue of admissibility of evidence which may arise during the early stages of the trial.
The Appeals Chamber’s reasons for this decision will be issued in due course.
Done in both English and French, the French text being authoritative.
Judge Claude Jorda
Dated this first day of February 2002
At The Hague,
[Seal of the Tribunal]