Case No.: IT-99-37-PT
IT-01-50-PT
IT-01-51-PT

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision of:
13 December 2001

PROSECUTOR

v.

SLOBODAN MILOSEVIC

__________________________________________

DECISION ON PROSECUTION’S MOTION FOR JOINDER

__________________________________________

The Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dirk Ryneveld
Ms. Hildegaard Uertz-Retzlaff

The Accused:

Slobodan Milosevic

Amicus Curiae:
Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Michaďl Wladimiroff

A. INTRODUCTION

  1. This Trial Chamber of the International Tribunal (“International Tribunal”) has before it a motion filed on 27 November 2001 by the Office of the Prosecutor (“Prosecution”) for joinder of three Indictments against the accused Slobodan Milosevic (“Motion”).1

  2. The Motion, which was filed by the Prosecution under Rule 49 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), seeks to join three Indictments against the accused which relate to alleged serious violations of international humanitarian law in Kosovo,2 Croatia 3 and Bosnia and Herzegovina,4 hereinafter referred to as the “Kosovo”, “Croatia”, and “Bosnia” Indictments respectively . The amici curiae filed their response to the Motion on 10 December 2001 (“Amici Curiae Response”).5 Both parties and the amici curiae were heard by the Trial Chamber on 11 December 2001 (“Hearing”).

  3. The Trial Chamber gave its oral decision on the day of the Hearing, allowing the Motion to the extent that the Croatia and Bosnia Indictments will be joined together; and denying it to the extent that the Kosovo Indictment will be tried separately. The Trial Chamber now issues the written reasons for its ruling.

  4. This Decision deals with all the arguments, written and oral, raised by the Prosecution, the accused and the amici curiae on the Motion.

    (a) Kosovo Indictment

  5. The Kosovo Indictment was the first to be confirmed, although it deals with events which were the latest in time. This Indictment was originally confirmed on 24 May 1999, but leave to amend was granted and it was confirmed in its amended form on 29 June 2001 (the day of the transfer of the accused to the International Tribunal). Subsequently, the Prosecution sought leave to further amend the Indictment and the Trial Chamber granted leave to do so on 29 October 2001.

  6. The Kosovo Indictment (in its second amended form) is concerned with events in the province of Kosovo in the republic of Serbia (“Kosovo”), a constituent republic of the Federal Republic of Yugoslavia (“FRY”). These events occurred between 1 January 1999 and 20 June 1999 when it is alleged that the accused participated with four co-accused and others in a joint criminal enterprise, the purpose of which was the expulsion of a substantial proportion of the Kosovo Albanian population from the territory of Kosovo with the aim of ensuring continued Serbian control over the province. The Indictment alleges that the enterprise was carried out by means of a widespread campaign of terror and violence executed by the forces of FRY and Serbia in Kosovo “acting at the direction or with the encouragement or support ” of the accused and others.6 Features of the operations involved in the campaign were the murder of hundreds of civilians , the forcible transfer and deportation of 800,000 Kosovo Albanians, and the destruction and looting of property. Arising from these allegations the five accused are charged in five counts with persecution, deportations and forcible transfer (crimes against humanity) and murder charged as a crime against humanity and a violation of the laws or customs of war. Each of the accused is charged as being individually responsible under Article 7, paragraph 1, of the Statute of the International Tribunal (“Statute ”) for these crimes; and Slobodan Milosevic, as President and Supreme Commander of the Armed Forces of the FRY (“VJ”), is charged as being responsible as a superior under Article 7, paragraph 3, of the Statute for the actions of his subordinates within the VJ and police who committed the crimes.7

  7. At a status conference on 30 October 2001 the Prosecutor said that she expected to call 228 witnesses and produce some 500 documents in relation to the Kosovo Indictment . Her time estimate for the Prosecution case was about 170 days and she stated that the Prosecution was ready for trial.8 During the Hearing the Prosecution stated that in the event of a separate trial on the Kosovo Indictment, its case would last about nine months.9 The Prosecution said that they expected 167 live witnesses to testify about the crime base, although this figure might be reduced to 42, if the evidence of the other witnesses were admitted under Rule 92 bis.10

    (b) Croatia Indictment

  8. The Croatia Indictment was submitted by the Prosecution on 27 September 2001 and confirmed on 8 October 2001. It relates to events which occurred in Croatia between 1 August 1991 and June 1992, i.e., after Croatia had declared its independence. The Indictment alleges that, during this time, Slobodan Milosevic participated in a joint criminal enterprise with others, the purpose of which was the forcible removal of the majority of the Croat and non-Serb populations from about one third of the Republic of Croatia (including the Krajina and Slavonia regions ) which it was planned should become part of a Serb-dominated State.11 It is alleged that the accused “worked in concert with or through several SnamedC individuals in the joint criminal enterprise”12; and was individually responsible under Article 7, paragraph 1, of the Statute for the crimes alleged in the Indictment. Those crimes included persecution, extermination , unlawful confinement, deportation, attacks on civilians and wanton destruction , charged in 32 counts in the Indictment involving allegations of grave breaches of the Geneva Conventions of 1949; violations of the laws or customs of war; and crimes against humanity.

  9. The joint criminal enterprise is said to have been carried out by means of the assumption of control of towns and villages by Serb forces (comprising the Yugoslav National Army (“JNA”), Territorial Defence (“TO”), police of the Ministry of Internal Affairs Police (“MUP”) and paramilitaries), the murder of hundreds of Croats, the imprisonment of thousands in detention facilities (where they were tortured, beaten and killed), sexual assault, the use of forced labour, the deportation of 170,000 Croats and non-Serb civilians and the destruction of homes and cultural monuments . It is alleged that the accused, as President of Serbia and in a leading position in the Socialist Party of Serbia (“SPS”), controlled all facets of the Serbian Government , including the police and security services, and exercised effective control or substantial influence over the other participants in the criminal enterprise. It is further alleged that he, alone or together with them, provided direction and assistance in the take-overs and forcible removal of Croats, supported the military forces, created special forces and exerted control or substantial influence over the JNA and the media.13

  10. The Indictment also alleges that the accused was responsible as a superior for the crimes committed by the JNA, TO, MUP, State Security of Serbia (“DB”) and volunteer units. It is alleged that he exercised control over the members of the ‘Serb Bloc’ within the Presidency of the Socialist Federal Republic of Yugoslavia (“SFRY”) which exercised the powers of the Presidency including that of collective commander in chief of the JNA, TO and volunteer units. It is also alleged that he exercised control over: (a) the JNA counter-intelligence (“KOS”) whose agents directed local Croatian Serb political leaders; and (b) the agents of the MUP and DB who directed and supported local Croatian Serb political leaders.14

  11. At the status conference on 30 October 2001 the Prosecutor said that she expected to call 255 witnesses and produce some 90 documents in relation to the Croatia Indictment . Her time estimate for the Prosecution case was about 170 days and she anticipated that the Prosecution would be ready for trial in 4 – 5 months.15 During the Hearing the Prosecution stated that in the event of a separate trial on the Croatia Indictment, its case would last about 10 months.16 The Prosecution said that they expected 143 live witnesses to testify about the crime base, and additional statements would be tendered pursuant to Rule 92 bis .17

    (c) The Bosnia Indictment

  12. The Prosecutor submitted the Bosnia Indictment on 12 November 2001 and it was confirmed on 22 November 2001. The Indictment is concerned with events in Bosnia and Herzegovina between 1992 and 1995. During this time it is alleged that the accused participated in a joint criminal enterprise, the purpose of which was the forcible removal of Bosnian Muslims and Bosnian Croats from large areas of Bosnia and Herzegovina.18 It is further alleged that the enterprise was put into effect by the widespread killings of thousands , the detention of thousands more and forcible transfer and deportation of others , and plunder and wanton destruction of property: these crimes being committed by Serb forces comprised of JNA, VJ and Bosnian Serb Army (“VRS”) units, local TO units and Serbian MUP police units. The Indictment charges the accused in 29 counts with genocide, grave breaches of the Geneva Conventions, crimes against humanity and violations of the laws or customs of war in the form of persecution, murder, unlawful confinement, torture, deportation, wanton destruction and plunder.

  13. It is alleged that the accused is individually responsible for these crimes under Article 7, paragraph 1 of the Statute: that he was the dominant political figure in Serbia and the SFRY/FRY and controlled all facets of government.19 As such, it is said that he exercised effective control over the other participants in the criminal enterprise, including the JNA, VJ and VRS units and the political leadership in Republika Srpska (“RS”) and provided support and direction for RS MUP special forces and paramilitaries which participated in the joint criminal enterprise .20

  14. It is further alleged that the accused was also responsible as a superior under Article 7, paragraph 3, of the Statute for the participation of the JNA, VJ and Serbian MUP in the crimes in the Indictment, through his powers as a member of the Supreme Defence Council and his control over the Presidency of the SFRY and the agents of the MUP.21

  15. During the Hearing the Prosecution said that in the event of a separate trial on the Bosnia Indictment, its case would last about 13 months.22 The Prosecution stated that there would be about 300 crime base witnesses, although the statements of 200 of these witnesses might be tendered under Rule 92 bis .23

    B. SUBMISSIONS

    (a) The Prosecution

  16. The Prosecution submits that the Trial Chamber should adopt a wide interpretation of the term “transaction” in Rule 49.24 It is submitted that many of the Indictments before both the International Tribunal and the International Criminal Tribunal for Rwanda (“ICTR”) charge an accused, particularly one in a leadership role, with crimes arising from a series of acts or omissions with a wide geographic and temporal range. It is further submitted that in the present case the “transaction” or common scheme, strategy or plan which connects the three Indictments is Milosevic’s plan to create a “Greater Serbia”, encompassing Kosovo and the areas of Croatia and Bosnia and Herzegovina with a substantial Serb population: this was to be achieved through the forcible removal of non-Serbs from large areas of the territory of the former Yugoslavia by means of acts which constitute crimes under the Statute.25 In the Prosecution’s submission, the “purpose of the joint criminal enterprise described in these indictments and the methods applied to achieve the goal are effectively identical.”26 While some of the actors in the criminal enterprise changed, many of them remained throughout the time frame covered by the three Indictments.

  17. In particular the Prosecution submits that from the late 1980s until October 2000, the accused was the dominant political figure in the FRY, first as the President of the SPS and President of Serbia, and latterly as President of the FRY. In these various capacities, the accused exercised effective control over government structures and military institutions and pursued policies that led to the commission of the crimes charged in each of the Indictments. Among the institutions which played a critical role in the conflicts in Croatia, Bosnia and Herzegovina and Kosovo were the VJ and the Serbian MUP. The accused controlled the mechanisms through which funds were covertly channelled to these organisations during the course of the conflicts covered in all three of the Indictments; and his control over key institutions and individuals in them evolved throughout the three conflicts. Thus, it is argued , given the continuous and evolving nature of the crimes, it would be impossible adequately to consider his participation in the crimes in any one of the Indictments without considering his role in the crimes in the other two Indictments.27

  18. The Prosecution concedes that the events covered in the Kosovo Indictment are separated by “a few years” from those in the other Indictments but submits that they were integrated with those which occurred in the other two areas: the accused used in the Kosovo campaign methods developed in the campaigns in the other two areas, and the historical developments in Kosovo are essential to understanding events in Croatia and Bosnia and Herzegovina. Therefore, the Prosecution submits that a single Trial Chamber should cover all issues in a comprehensive way.28 Furthermore it is argued that the Prosecution would have to present evidence on the accused’s role in the ethnic cleansing campaigns in Croatia and Bosnia and Herzegovina to demonstrate that the acts of violence in the Kosovo campaign were foreseeable .29

  19. Accordingly the Prosecution submits that “the crimes charged against this accused fulfill the ‘same transaction’ requirement of Rule 49”.30

  20. In relation to matters concerning the exercise of discretion the Prosecution submits as follows:

    (a) The right of the accused to a fair and expeditious trial would be enhanced by joinder of the Indictments since he could explore the overall history in a single trial where evidence would be more likely to be first hand, and would not have to face trial and at the same time managing pre-trial proceedings in another case. Furthermore, if convicted, the accused would be subject to one single overall sentence from a single Trial Chamber rather than a number of sentences on different Indictments .

    (b) A joint trial would be the most cost-effective means of trying the accused, i.e., a trial by a single Trial Chamber rather than three trials before three separate Trial Chambers: in the case of a single trial the Prosecution would be able more easily to reduce substantially the number of witnesses (expected to be about 600) and to cope better with disclosure and exculpatory material.

    (c) Witnesses would be better protected if they do not have to give evidence on more than one occasion: more than 20 witnesses would be in this position.

    (d) A single trial would ensure consistency of verdicts and sentence.

    (e) The trial of the co-accused in the Kosovo Indictment could be severed if all three Indictments were joined against this accused.

  21. During the Hearing, the Prosecution pointed out that they used the words “Greater Serbia” only as a “handle” and that the alleged overall plan of the accused was a centralised Serbian State encompassing Serb populated areas and the determination to retain or gain whatever would fall within that plan.31

  22. The Prosecution submitted that it would be undesirable to try the Kosovo Indictment first, because: the Kosovo events were chronologically last; the interests of the victims and witnesses require that those who suffered in the earlier events should not have their resolution postponed by a later case being heard first; the Croatia and Bosnia Indictments can be seen as more substantial and more grave, and should therefore not be postponed; the Kosovo Indictment contains a discrete issue which may require some considerable time, namely the NATO bombings.32

  23. It was also submitted that it would be undesirable to try the accused on the Kosovo Indictment first, because it was in Kosovo that the accused first gathered power, and the crimes which ultimately occurred there were “waiting to happen” and had simply been “delayed.”33 According to the Prosecution it was the policy of the accused which led to the commission of the serious crimes by those under his influence and control. Based on this, the Prosecution argued that evidence on earlier events is relevant on the later, as showing what could be expected if his policies were carried out.34

    (b) The Accused

  24. The accused submitted during the Hearing that not one argument had been set forth in favour of joinder. He said that a joinder would not be correct and that it could not be justified.35 The accused also urged the Trial Chamber not to allow the Kosovo Indictment to be pushed back for the “benefit of daily politics”.36

    (c) The Amici Curiae

  25. On the other hand, in their written response to the Motion, the amici curiae submit that the three Indictments can be dealt with on their own, as has been the case to date.37 They submit that the Motion should be refused if the Trial Chamber is of the view that the accused would not receive a fair trial if joinder took place or if such joinder would prevent the Trial Chamber from carrying out its duties effectively.38 They point out that the Trial Chamber will have to consider “the extreme scale of the single trial exercise and whether the Trial Chamber is able adequately to deal with all the charges within the three indictments.”39

  26. In addition, during the Hearing, the amici curiae stressed that there should be established a nexus for each count within the three Indictments before they could be joined.40 They noted that, in their view, there was “commonality” between the counts in the three Indictments , but that the Prosecution had failed to justify joinder of the Indictments by relying on the accused’s alleged plan to create a “Greater Serbia”.41

    C. THE LAW

  27. The question of whether Indictments should be joined, as pleaded in the present case, is governed by Rule 49 of the Rules, which provides:

    Joinder of Crimes

    Two or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the said crimes were committed by the same accused.

  28. The first issue, therefore, before the Trial Chamber in deciding this Motion is whether the “series of acts committed together form[ed] the same transaction”. A “transaction” is defined for the purposes 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.42

  29. As yet, the scope of Rule 49 and the definition of “transaction” have not been the subject of rulings by either the Appeals Chamber or Trial Chambers of the International Tribunal. However, guidance may be found in a Separate Opinion to an Appeals Chamber Decision on the amendment of indictment in Kovacevic, where Judge Shahabuddeen said: “Joinder of offences is of course possible, within limits. Additional charges must bear a reasonable relationship to the matrix of facts involved in the original charge.”43 He noted that the test of the relationship is laid down by Rule 49, the language of which “recognises both the convenience to each side of trying several charges together and the injustice which might enure to the accused if he was required to answer unrelated charges at the same time.”44 Judge Shahabuddeen further stated that Rule 49 appears to have taken its inspiration from the “same transaction” test used in the federal system of the United States of America, according to which it has been said that “it is proper … to join offenses which are closely related in that they were interrelated parts of a particular criminal episode.”45 He concluded that “the question is whether all the counts, old and new, represent interrelated parts of a particular criminal episode. It is not necessary for all of the facts to be identical. It is enough if the new charges cannot be alleged but for the facts which give rise to the old.”46 [emphasis supplied]

  30. It should be noted that in Decisions by the Appeals Chamber of the ICTR on, inter alia, matters relating to joinder of accused, Judges McDonald and Vohrah (in similar statements in two Joint and Separate Opinions), also noted that Rule 49 appears to have been drawn from the “same transaction” test found in the federal system in the United States of America.47 They went on to state that the jurisprudence of the ICTY permits joint trials and said that “[w]here possible public interest and the concern for judicial economy would require joint offences to be tried together.”48 [emphasis supplied]

  31. The meaning of a “same transaction” has been considered by Trial Chambers of the ICTR. In one such case the Trial Chamber considered a definition of the “same transaction” submitted by the Prosecutor to be too vague and imprecise and noted , somewhat enigmatically, that it was of the opinion that “the Defence has grounds to think that it would be a gross generalization to deduce solely from the ‘elimination of Tutsis in Kibuye Prefecture in 1994’ the existence of a same transaction”.49

  32. In Bagosora, the Trial Chamber discussed joinder in both common law and civil law jurisdictions and pointed out that in civil law jurisdictions joinder may be granted if “connexité” exists between the crimes with which the accused are charged;50 in other words, there must be a connection between the crimes before joinder will be permitted.

  33. The significance of the connection or ‘nexus’ between the crimes is echoed in common law jurisdictions. Thus in the United States of America, Rule 8(a) of the Federal Rules of Criminal Procedure provides:

    Two or more offenses may be charged in the same indictment [...] if the offenses charged [...] are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. [emphasis supplied]

  34. Further, Rule 14 of the Federal Rules of Criminal Procedure provides that if it appears that a defendant is prejudiced by a joinder of offences, the court may order separate trials of counts or provide whatever other relief justice requires .

  35. Likewise in England charges for any offences may be joined in the same indictment if they are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.51 In R. v. Kray52 the Court of Appeal held that a sufficient nexus must exist between the relevant offences; such a nexus is clearly established if evidence of one offence would be admissible on trial of the other. However, the rule is not confined to such cases; in Ludlow 53 the House of Lords said that nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.

  36. Accordingly, in the view of the Trial Chamber, the essence of the test is to determine whether there were a series of acts committed which together formed the same transaction, i.e. part of a common scheme, strategy or plan. However , the reference to a “series” and the use of the phrase “committed together” in Rule 49 indicates that the acts must be connected in the same way that common law and civil law jurisdictions require. There is no power to join unconnected acts on the ground that they form part of the same plan. As Judge Shahabuddeen explained , the plan must be such that the counts represent interrelated parts of a particular criminal episode.54 If there was no such series of acts and no such plan, any application for joinder must fail. Where there is no similarity in time and in place, the conclusion that the counts represent interrelated parts of a particular criminal episode will be more difficult , albeit not impossible, to draw.

  37. In this connection it should be borne in mind that for purposes of joinder the Trial Chamber must act upon the factual allegations as contained in the Indictments . This was pointed out in Bagosora where the Trial Chamber also said: “ At this stage of the proceedings, only allegations can be made. These allegations will have to be proved at trial. This is not the stage of the proceedings where proof is established. We are not having two trials; one at the joinder stage and one at the trial stage.”55

  38. However, the matter does not end there. For in exercising its discretion under Rule 49, the Trial Chamber must take into account the fact that that Rule, like all other Rules, must be construed in the light of the Statute as a whole; in particular , Rule 49 must be interpreted in light of the entitlement of the accused under Article 21, paragraph 2, to a fair hearing. If, therefore, the Trial Chamber concludes that joinder of indictments will prejudice the accused’s right to a fair hearing , it will not exercise its discretionary power to permit joinder. In that regard , the Prosecution’s submission that Rule 49 should be widely interpreted56 is not accepted, because a distinct element of Rule 49 is the accused’s right to a fair hearing.

  39. However, it is not only the interests of the accused which must be considered . Joinder should not be granted where the interests of justice would be prejudiced – those interests relate not only to the accused but also to the interests of the Prosecution and the international community in the trial of any accused charged with serious violations of international humanitarian law. Significantly, Rule 82 (B), which deals with the separation of trials, makes express reference to the interests of justice. Although not expressly mentioned in Rule 49, the Chamber has no doubt that it is a factor to be considered.

  40. Other factors that may properly be taken into account by the Trial Chamber when exercising its discretion under Rule 49 include judicial economy, e.g. the avoidance of duplication of evidence, and the avoidance of hardship to witnesses .

    D. DISCUSSION

  41. The first issue to be determined is whether the three Indictments form part of a series of acts committed together which formed the same transaction, i.e ., part of a common scheme, strategy or plan.

  42. The Prosecution case is that they do, since they form part of a plan for a “Greater Serbia”. It is the case that in each Indictment it is alleged that the accused participated in a joint criminal enterprise, the purpose of which was the removal of non-Serbs from a certain area, and which was carried out by similar means . However, analysis of the Indictments shows that they deal with events as follows :

    Croatia: August 1991 – June 1992
    Bosnia: March 1992 – December 1995
    Kosovo: January – June 1999

    There is, therefore, a gap of more than three years between the last events in Bosnia and the first events in Kosovo.

  43. Furthermore, in contradistinction to the conflict in Kosovo, the conflicts in Croatia and Bosnia and Herzegovina did not take place in the FRY, but in neighbouring States; and must be seen against the background of conflicts arising from the break -up of the former Yugoslavia, brought to an end by the Dayton Peace Accords of December 1995. In these two cases it is alleged that the accused acted “indirectly”, in concert with or through other individuals in the joint criminal enterprise or exercising substantial influence and control over them, e.g. the Bosnian Serb leadership and VRS, inter alia, in Bosnia and Herzegovina and volunteer groups and paramilitaries , inter alia, in Croatia.

  44. On the other hand, the conflict in Kosovo occurred in a province of FRY well after the Peace Accords. Moreover, the accused in this case acted “directly” and was in de jure and de facto control as commander of the VJ.

  45. The Trial Chamber notes that no mention of a “Greater Serbia” plan appears in the Kosovo Indictment and that it is only in relation to other individuals that the plan is mentioned in the Bosnia and Croatia Indictments. The Trial Chamber considers that nexus too nebulous to point to the existence of a “a common scheme , strategy or plan” required for the “same transaction” under Rule 49. As noted supra,57 there is a distinction in time and place between the Kosovo and the other Indictments and also a distinction in the way in which the accused is alleged to have acted. Consequently, the Trial Chamber does not consider that the acts alleged in the three Indictments form the same transaction for the purposes of Rule 49.

  46. On the other hand, the Croatia and Bosnia Indictments exhibit a close proximity in time, type of conflict and responsibility of the accused. Therefore, in the case of these two Indictments, the Trial Chamber finds that the requirements for joinder under Rule 49 are satisfied. The two Indictments contain allegations of a series of acts which together formed the same transaction, i.e., a plan to take over the areas with a substantial Serbian population in two neighbouring States. Similar means were used in each case to bring about this purpose and the accused played a similar role in each case. The two conflicts are close enough in time and similar enough in the methods used to be said to represent interrelated parts of a particular episode.

  47. The Prosecution submits that in terms of judicial economy it would be cost effective to try the accused in one trial. The Prosecution in its Motion indicated that some 600 witnesses would be called at such a trial,58 which would last about 3 years.59 However, in oral submissions during the Hearing it was stated that there would be approximately 380 - 395 witnesses, whose testimony would require about 300 trial days in total.60 The Prosecution added that a number of these witnesses could testify under Rule 92 bis.61 Trial Chamber notes that this represents a significant reduction in the Prosecution’s estimate of the number of witnesses. Even so, in the view of the Trial Chamber a single trial of that length is far too long. In this connection, the Trial Chamber also notes that in the Kordic case, 241 witnesses took 240 trial days over a period of 20 months.62 Accordingly, two trials would enable the Trial Chamber to manage the trial more easily.

  48. Further, in the Prosecution’s Motion it was stated that about 20 witnesses would have to give evidence more than once if there were separate trials. In their oral submissions, the Prosecution indicated that this number might increase. The Prosecutor acknowledged that these witnesses would not be victim witnesses.63 In the Trial Chamber’s view, the figure of some 20 witnesses having to repeat their evidence in separate trials is not of great significance given the overall number of witnesses.

  49. During the Hearing the Prosecution stated that they would be ready for a joint trial on the three Indictments “by the summer”, although they would prefer the autumn .64 The Trial Chamber notes that this estimate appears very optimistic, given the fact that they have not yet completed the disclosure with regard to the Kosovo Indictment65 and that the other two Indictments have just been confirmed. In the view of the Trial Chamber the trial of the accused on the three Indictments would be rendered more manageable on the basis of two trials.

  50. The Prosecution also argued that the accused would receive a fairer and more expeditious trial in the case of a single trial. However, in the Trial Chamber’s view, the fact that the accused would have to defend himself on the contents of three Indictments together would be onerous and prejudicial, particularly in the case of the Kosovo Indictment and its different circumstances. The Trial Chamber , comprised as it is of professional judges, should not to be influenced by prejudicial evidence in one trial affecting another. However, if there is such risk, the evidence must be excluded.

  51. Consistency of verdict and sentence can be maintained by a single Trial Chamber trying both cases, although this is a matter which can be reviewed. In any event , it is not a bar to these Indictments being tried separately.

  52. Accordingly, the Trial Chamber will allow the Motion to the extent that the Croatia and Bosnia Indictments will be joined together. However, the Kosovo Indictment will be tried separately. This Indictment will be tried first. It is ready for trial, the others are not. The fact that the trials will take place in this order is the result of the fact that the Prosecution issued the Kosovo Indictment 2 years ago, but did not issue the Croatia and Bosnia Indictments until this autumn; 9 years and 6 years respectively after the events.

    E. DISPOSITION

  53. The Trial Chamber

ORDERS that the Croatia and Bosnia Indictments be joined and be given a common case number;

ORDERS that the Prosecution file a joint Indictment within 28 days;

DECIDES that the Kosovo Indictment will be tried separately first, beginning on 12 February 2002; and

DECIDES that the Croatia and Bosnia Indictment will be tried immediately after the Kosovo Indictment by this Trial Chamber.

 

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

____________________

Richard May
Presiding

Dated this thirteenth day of December 2001
At The Hague
The Netherlands

1 - Prosecution’s Motion for Joinder, filed 27 November 2001 and Prosecution’s Corrigendum to Motion for Joinder Filed 27 November 2001, filed 10 December 2001 (“Motion”).
2 - Prosecutor v. Slobodan Milosevic et al, Case No. IT-99-37-PT.
3 - Prosecutor v. Slobodan Milosevic, Case No. IT-01-50-PT.
4 - Prosecutor v. Slobodan Milosevic, Case No. IT-01-51-PT.
5 - Amici Curiae Response to the Prosecution Motion on Joinder, filed 10 December 2001 (“Amici Curiae Response”).
6 - Kosovo Indictment, para. 54.
7 - Ibid., paras 19-28.
8 - Status Conference, 30 October 2001, Case No. IT-99-37-PT, Transcript pages (“T.”) 125-26, 128.
9 - Hearing, 11 December 2001 (“Hearing”), T. 66.
10 - Ibid., T. 67-68.
11 - Croatia Indictment, para. 6.
12 - Ibid., para. 9.
13 - Ibid., paras 25 and 26.
14 - Ibid., paras 29-33.
15 - Status Conference, 30 October 2001, Case No. IT-01-50-PT, T. 45-47.
16 - Hearing, T. 66.
17 - Ibid., T. 67.
18 - Bosnia Indictment, paras 6 and 9.
19 - Ibid., paras 5 and 23.
20 - Ibid., paras 24 and 25.
21 - Ibid., paras 27-31.
22 - Hearing, T. 66.
23 - Ibid., T. 68.
24 - Motion, para. 12.
25 - Ibid., para. 13.
26 - Ibid., para. 15.
27 - Ibid., para. 27.
28 - Ibid., para. 16.
29 - Ibid., para. 30.
30 - Ibid., para. 31.
31 - Hearing, T. 43, 53.
32 - Ibid., T. 58-59.
33 - Ibid., T. 44-45.
34 - Ibid., T. 57.
35 - Ibid., T. 107.
36 - Ibid.
37 - Amici Curiae Response, para. 10.
38 - Ibid., para. 6.
39 - Ibid., para. 10.
40 - Ibid., para. 8, and Hearing, T. 83-84.
41 - Hearing, T. 87.
42 - Rule 2 of the Rules.
43 - Prosecutor v. Kovacevic, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, Separate Opinion of Judge Mohamed Shahabuddeen, p. 2. Judge Shahabuddeen’s Separate Opinion was adopted by the Trial Chamber in a Decision on a Motion for a separate trial in the Brdanin & Talic case, where it was referred to as an application of Rule 49 (it was in fact an application of Rule 50): Prosecutor v. Brdanin & 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.
44 - Prosecutor v. Kovacevic, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, Separate Opinion of Judge Mohamed Shahabuddeen, pp. 2-3.
45 - Ibid., p. 3. Judge Shahabudeen was referring to a statement made by Wayne R. LaFave and Jerold H. Israel, Criminal Procedure, 2nd ed., p. 762.
46 - Ibid.
47 - Prosecutor v. Kanyabashi, Case No. ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, 3 June 1999, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 32; and Prosecutor v. Nsengiyumva, Case No. ICTR-96-12-A, Decision on Appeal Against Oral Decision of Trial Chamber II of 28 September 1998, 3 June 1999, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 31.
48 - Prosecutor v. Nsengiyumva, Case No. ICTR-96-12-A, Decision on Appeal Against Oral Decision of Trial Chamber II of 28 September 1998, 3 June 1999, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 31.
49 - Prosecutor v. Kayishema, Case No. ICTR-95-1-T, Prosecutor v. Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Prosecutor v. Ruzindana, Case Nos. ICTR-95-1-T and ICTR-96-10-T, Decision on the Motion of the Prosecutor to Sever, to Join in a Superseding Indictment and to Amend the Superseding Indictment, 27 March 1997, p. 3.

50 - Prosecutor v. Bagosora, Case No. ICTR-96-7; Prosecutor v. Kabiligi & Ntabakuze, Case Nos. ICTR-97-34 and ICTR-97-30; Prosecutor v. Nsengiyumva, Case No. ICTR-96-12, Decision on the Prosecutor’s Motion for Joinder, 29 June 2000, paras 105-107.
51 - Indictment Rules 1971, r. 9.
52 - R. v. Kray and Others, 53 Cr.App.R. 569.
53 - Ludlow v. Metropolitan Police Commr [1971] A.C. 29.
54 - See supra, paragraph 29. Prosecutor v. Kovacevic, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, Separate Opinion of Judge Mohamed Shahabuddeen, pp. 2-3.
55 - Prosecutor v. Bagosora, Case No. ICTR-96-7; Prosecutor v. Kabiligi & Ntabakuze, Case Nos. ICTR-97-34 and ICTR-97-30; Prosecutor v. Nsengiyumva, Case No. ICTR-96-12, Decision on the Prosecutor’s Motion for Joinder, 29 June 2000, paras 120-121.
56 - Motion, para. 12, and Hearing, T. 84.
57 - See supra, paragraphs 42-44.
58 - Motion, para. 41.
59 - Status Conference, 30 October 2001, IT-99-37-PT, T. 136.
60 - Hearing, T. 64-66.
61 - Hearing, T. 67.
62 - Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para. 3.
63 - Hearing, T. 74-76.
64 - Ibid., T. 72-73.
65 - Ibid., T. 68-69.