IN TRIAL CHAMBER II
Judge Antonio Cassese, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge David Hunt
Dorothee de Sampayo Garrido-Nijgh
4 November 1999
DECISION DEFERRING DECISION ON MOTION FOR SEPARATE TRIALS
The Office of the Prosecutor:
Ms Joanna Korner
Mr Michael Keegan
Ms Ann Sutherland
Counsel for the Accused:
M Xavier de Roux
M Michel Pitron
1. In an indictment filed on 2 September 1999, Radoslav Brdanin (Brdanin) and Momir Talic (Talic) are jointly charged with a crime against humanity, based upon persecutions on political, racial or religious grounds.1
2. The indictment alleges that:
(i) In 1992, actions were taken in certain areas of Bosnia and Herzegovina, including the Autonomous Region of Krajina ("ARK"), which resulted in the death or forced departure of most of the Bosnian Muslim and Bosnian Croat populations from those areas.2
(ii) These actions were taken by police units, paramilitary groups, Territorial Defence units and units of the Yugoslav Peoples Army ("JNA").3
(iii) A "three part plan" was carried out (1) to create impossible conditions, involving pressure and terror tactics, that would have the effect of encouraging the non-Serbs to leave the area, (2) to deport and banish those who were reluctant to leave, and (3) to liquidate those non-Serbs who remained and who did not fit into the concept of the Serbian State.4
(iv) The execution of that plan included
(1) the denial of fundamental rights to Bosnian Muslims and Croats, including the right to employment and freedom of movement;
(2) the wanton destruction of Bosnian Muslim and Bosnian Croat villages and areas, including the destruction of religious and cultural buildings in the areas attacked;
(3) the killing of Bosnian Muslims, Bosnian Croats and other non-Serbs;
(4) causing serious bodily or mental harm to Bosnian Muslims, Bosnian Croats and other non-Serbs;
(5) detaining Bosnian Muslim and Bosnian Croats under conditions of life calculated to bring about the physical destruction of a part of those populations; and
(6) the forced transfer or deportation of Bosnian Muslim and Bosnian Croats from areas of Bosnia and Herzegovina that had been proclaimed as part of the Serbian Republic of Bosnia and Herzegovinia.5
(v) Brdanin and Talic were essential members of the ARK Crisis Staff who acted in concert in planning, instigating, ordering, committing or otherwise aiding and abetting the complete range of operations related to the conduct of the hostilities and destruction of Bosnian Muslim, Bosnian Croat and other non-Serb communities in the Autonomous Region of Krajina.6
(vi) Each of the accused carried out the particular responsibilities of his position in support of the overall plan, Brdanin as the President of the ARK Crisis Staff and Talic as Commander of the 5th Corps of the JNA (later designated the 1st Krajina Corps).7
II The application
3. On 14 October 1999, Talic filed a Motion seeking separate trials for Brdanin and himself on the indictment filed on 2 September ("Motion").8 Before considering the merits of the application,however, it is necessary to refer to two issues which arise in relation to that indictment.
III The various indictments
4. On 14 March 1999, Judge Rodrigues confirmed an indictment transmitted to him by the Prosecutor in accordance with Articles 18.4 and 19 of the Tribunals Statute and Rule 47 of the Rules of Procedure and Evidence. On the same day, and in accordance with Rule 53, the judge made an order for non-disclosure of the indictment which he had confirmed, the arrest warrants and the other documents before him. In other words, the indictment became what has become known as a sealed indictment. The fact that there are still today some documents under seal leads to the inevitable inference that the original indictment confirmed by Judge Rodrigues named more than the two accused so far revealed.
5. At the time of confirming the indictment, Judge Rodrigues also
(1) granted leave:
[ ] to prepare separate redacted copies of the indictment relating to each of the individual accused, deleting all references to the other co-accused, which includes changing the language of the indictment to reflect singular rather than plural where appropriate, and re-numbering paragraphs and schedules where necessary [ ].9
(2) ordered that the non-disclosure order which he had made be vacated in part in respect of any documents relevant to an accused who had been detained or arrested, and that it otherwise continue in effect until the arrest of all accused who were at large or until further order.
Redacted indictments naming each of the accused were then certified by the Registrar as conforming with the decision of Judge Rodrigues, and they were filed the same day. The redacted indictment naming only Brdanin was served on him when he was arrested in July of this year, and that naming only Talic was served on him when he was arrested in August.
6. Following the arrest of Talic, and on 2 September, the prosecution filed a further redacted indictment which names both Brdanin and Talic, charging them jointly with the crime against humanity already referred to. This indictment purports to have been filed in accordance with the order of Judge Rodrigues, but there is nothing in that order which grants leave to prepare a redacted indictment which names two of the three or more accused in the original, confirmed, indictment. Nor has this indictment been certified as conforming with that decision. It is perhaps significant that this further redacted indictment was not filed on 14 March, unlike the two redacted indictments each naming only one of the original accused.
7. This is, of course, a problem likely to recur with the use of sealed indictments against more than one accused, and care must be taken that an overly technical approach does not hinder the use of such indictments. The leave granted, however, specifically refers only to redacted indictments against each accused alone, and it does not include (as it could have included) redacted indictments against any combination of such accused less than them all.
8. The present application, moreover, requires some care to be taken. Whilst it is a reasonable conclusion from the form of the further redacted indictment that the form of the original indictment was one charging the three or more accused jointly, that document remains sealed, and the only indictment to which the present application for separate trials can relate is that which was filed on 2 September. As the prosecution did not have leave to file that indictment, the present application is necessarily premature.
9. A sensible solution would be for the prosecution to obtain leave to prepare and file the further redacted indictment charging Brdanin and Talic jointly, and then to have the Registrar certify the document as conforming with that leave. As some knowledge of the contents of the original, confirmed, indictment is required before that leave can be granted, and as that document remains sealed, it would be preferable for any application for such leave be made to Judge Rodrigues as the confirming judge.
IV Application to amend
10. However, the prosecution has, by its Response to the application, given notice that it intends to apply to Judge Rodrigues as the confirming judge for leave to amend the indictment in any event.10 The Trial Chamber has been informed that this is to add further charges based upon new material, and that a similar application is being made in the indictment against Brdanin. This is a further reason for the application to prepare and file a further redacted indictment to be heard by the confirming judge.
11. A common practice where the prosecution wishes to add a defendant to an existing indictment is to present a new indictment against the existing defendant (or defendants) and the new defendant, so that, when the new indictment is confirmed, leave will be granted to withdraw the original indictment.11 Although that is not precisely the situation in the present case, it may be the most convenient course to follow in the circumstances of the present case.
12. Whichever course is followed, it is nevertheless clear that the present application for separate trials cannot be determined until the nature of the amendments are known. In the event that it becomes necessary by reason of the amendments for Talic to re-plead, Rule 50(C) permits him a further thirty days thereafter in which to file a fresh Preliminary Motion for separate trials. The Trial Chamber accordingly defers its decision until the final form of the indictment is known.
13. FOR THE FOREGOING REASONS, Trial Chamber II
(1) defers its decision on the Motion until the result is known of the application by the prosecution to amend the indictment, and
(2) grants leave
(a) to the accused Talic to file any addendum to the Motion as he may be advised, within fourteen days of being informed of the result of that application and receipt of any amended indictment, and
(b) to the Prosecution to file a further Response to the Motion and addendum within fourteen days from the filing of that addendum.
Done in English and French, the English text being authoritative.
Dated this 4th day of November 1999,
At The Hague,
Judge David Hunt
(at the request of the Presiding Judge)
[Seal of the Tribunal]
1. Statute of the Tribunal, Article 5.
2. Indictment, para 9.
3. Ibid, par 9.
4. Ibid, par 26.
5. Ibid, par 27.
6. Ibid, par 15.
7. Ibid, pars 13, 15.
8. Motion to Separate Trials, 14 October 1999.
9. This is quoted from a specially obtained redacted version of the order made. It is a document which should have been released in such a form when the first (or, at the latest, the second) of the accused was arrested.
10. Prosecutions Response to "Motion to Separate Trials" Filed by Counsel for the Accused Momir Talic, 21 October 1999, at p 2.
11. See, generally, Kanyabashi v Prosecutor, ICTR-96-15-A, 3 June 1999, and in particular the Dissenting Opinion of Judge Shahabuddeen, at p 14.