IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 1 July 1998
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE MOTION BY DEFENDANT DELALIC REQUESTING
PROCEDURES FOR FINAL DETERMINATION OF THE CHARGES
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Zeljko Olujic, Mr. Tomislav Kuzmanovic, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Ms. Cynthia McMurrey, Ms. Nancy Boler, for Esad Landzo
1. Pending before 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 ("International Tribunal") is a "Motion by the Defendant Delalic Requesting Procedures for Final Determination of the Charges Against Him" ("Motion" or "Application") ("Official Record at Registry Page ("RP") D6407 - D6413) filed on 2 June 1998. The Office of the Prosecutor ("Prosecution") filed a response to the Motion on 8 June 1998 ("Prosecution Motion to Exclude Presentation of Evidence Immediately After the Close of Delalic Defence" ("Prosecution Response"), RP D6572 - D6575). The background to the Motion is the following.
2. Applicant, Zejnil Delalic, is the first accused person in the present case. The three other accused persons are Zdravko Mucic a/k/a Pavo, Hazim Delic and Esad Landzo a/k/a/ Zenga. They were jointly indicted on 19 March 1996 and their trial is still ongoing.
3. The Prosecution has closed its case against all the accused persons. The first accused, Zejnil Delalic, has called witnesses in his own defence but has not given evidence before the Trial Chamber. The Trial Chamber has ordered the first accused to close his case but he has not yet done so. His application for leave to appeal against this decision was refused by the Appeals Chamber in a decision filed on 15 June 1998 ("Decision on the Application for Leave to Appeal Pursuant to Rule 73 by the Accused Zejnil Delalic", Case No. IT-96-21-73.4, RP A15 - A18). At the present time witnesses have appeared before the Trial Chamber on behalf of the second and third accused. The fourth accused is expected to call his witnesses in due course. None of the three other accused has given evidence before the Trial Chamber. However, none of the three co-accused persons has indicated their intention not to give evidence, if and when the first accused closes his case.
4. In the Motion the first accused is now seeking an order of the Trial Chamber:
(i) (a) For the Prosecution to indicate its intention whether or not to call rebuttal evidence against the first accused, and if so, to do this immediately after the close of the defence of the first accused; (b) that the first accused may then present any rejoinder evidence and, (c) that the Trial Chamber may then order evidence (if any) in regard to the first accused;
(ii) That following upon (i) above, the Prosecution and the Defence present final arguments in regard to the determination of the guilt or innocence of the first accused, and;
(iii) For the Trial Chamber then to proceed to final determination of the charges against the first accused.
5. The Trial Chamber heard oral arguments on the Motion on 9 June 1998, whereupon it reserved its decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
A. Applicable Provisions
The relevant provisions of the Statute of the International Tribunal ("Statute") and the Rules of Procedure and Evidence ("Rules") are reproduced hereunder.
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
Rights of the accused
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(c) to be tried without undue delay;
Joinder of Accused
Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.
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.
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
(A) Preliminary motions, being motions which
(i) challenge jurisdiction
(ii) allege defects in the form of the indictment
(iii) seek the severance of counts joined in one indictment under Rule 49 or seek separate trials under Rule 82 (B), or
(iv) raise objections based on the refusal of a request for assignment of counsel made under Rule 45 (C)
shall be in writing and be brought not later than sixty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66 (A) and shall be disposed of before the commencement of the opening statements provided for in Rule 84.
(B) Decisions on preliminary motions are without interlocutory appeal save
(i) in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
(ii) in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber.
(C) Applications for leave to appeal under Sub-rule (B) (ii) shall be filed within seven days of filing of the impugned decision.
Joint and Separate Trials
(A) In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.
(B) The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.
Instruments of Restraint
Instruments of restraint, such as handcuffs, shall not be used except as a precaution against escape during transfer or for security reasons, and shall be removed when the accused appears before a Chamber.
Before presentation of evidence by the Prosecutor, each party may make an opening statement. The defence may, however, elect to make its statement after the conclusion of the Prosecutors presentation of evidence and before the presentation of evidence for the defence.
Presentation of Evidence
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
(i) evidence for the prosecution;
(ii) evidence for the defence;
(iii) prosecution evidence in rebuttal;
(iv) defence evidence in rejoinder;
(v) evidence ordered by the Trial Chamber pursuant to Rule 98.
(B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness.
(C) If the accused so desires, the accused may appear as a witness in his or her own defence.
After the presentation of all the evidence, the Prosecutor may present an initial argument, to which the defence may reply. The Prosecutor may present a rebuttal argument to which the defence may present a rejoinder.
(A) When both parties have completed their presentation of the case, the Presiding Judge shall declare the hearing closed, and the Trial Chamber shall deliberate in private. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.
(B) The Trial Chamber shall vote separately on each charge contained in the indictment. If two or more accused are tried together under Rule 48, separate findings shall be made as to each accused.
Applicant - Zejnil Delalic, first accused
6. In the Motion the applicant states that the defence of the first accused will soon be closed. It is submitted that the sequence of evidence at trial shall be presented in accordance with Sub-rule 85(A)(i), (ii), (iii), (iv), (v) and Rule 98 of the Rules. Accordingly it is argued that at the close of evidence for Mr. Delalic, the Trial Chamber can, and should, order the Prosecution to declare whether it intends to call rebuttal evidence against the first accused. If the Prosecution so intends it could then be ordered to present such evidence immediately. The Trial Chamber may also exercise its right to call evidence.
7. It is submitted that on the conclusion of the evidence in compliance with the procedure outlined above, the parties would have completed the presentation of their cases and the Trial Chamber would be in a position to declare the hearing closed, and to call for closing arguments, pursuant to Rule 86, in respect of the charges in which the first accused stands charged.
8. It is further argued that Rules 87 and 88 enable the Trial Chamber, after closing arguments, to proceed with deliberation and render final judgement in respect of the charges against the first accused. Relying on a construction of Sub-rule 87(B) which provides for separate findings in a multiple defendant trial, it is submitted that there is no rule that such a finding may not be made at any time during the trial. Sub-rule 87(A) is cited in support of the submission that this is possible:
When both parties have completed their presentation of the case, the Presiding Judge shall declare the hearing closed, and the Trial Chamber shall deliberate in private. [. . .]
9. Articles 20 and 21 of the Statute are suggested as the basis for the proposed procedure. It is submitted that such a procedure would achieve an expeditious trial in respect of the first accused and that it would also obviate any violation of the rights of the accused under Article 21(4)(c). It is pointed out that the present trial proceedings commenced more than a year ago, that the presentation of evidence for the Prosecution lasted for nearly a year, and that a large part of the evidence of the Prosecution did not implicate the first accused. It is submitted that to require the first accused to wait for the presentation of the evidence of the other three accused would constitute a breach of his rights under Articles 20 and 21 of the Statute.
10. It is declared that the first accused intends to waive the benefit that may accrue to him from the defence of the other accused if the separate determination of his case is granted. It is requested that the Prosecution should not attempt to lead evidence against the first accused during the presentation of the evidence of the co-accused. Sub-rule 82(A) is relied upon for this request.
11. Finally, it is submitted that the procedure suggested would result in a saving in costs of the trial both in terms of expense and in time.
12. In her oral argument before the Trial Chamber in reply to the Prosecution Response, Ms. Residovic for the first accused stressed the fact that the application of the first accused was not intended to operate as a request for separate trial. Counsel submitted that where there is a conflict of interest in the defence, the defendant is entitled to a separate trial at any stage of the proceedings, but declared that no such application has been made. It was stated that such a request was not considered to be necessary since all the conditions necessary for the application of Rule 85 have been satisfied. The applicant is therefore relying on Sub-rule 82(A) to be accorded all the rights of a separate trial.
13. Accordingly, it was submitted that the procedural sequence to be observed is evidence of the Prosecution, evidence of the first accused, rebuttal evidence of the Prosecution, rejoinder by the defence, any evidence by the Trial Chamber, and final arguments by the parties. The Trial Chamber should then, after deliberation, proceed to a final decision in respect of Mr. Delalic.
14. The accusation that adopting the procedure suggested will result in unnecessary delay and duplication of the presentation of the cases in the further course of the proceedings was rejected. In contrast, it was argued that this procedure should be followed in the interests of justice and to ensure observance of the first accuseds fundamental right to a speedy and fair trial. It was said that it would also result in economy in terms of proceedings in the confining of the interrogation of every witness by cross-examination, and that this would result in savings in respect of attorneys.
15. Counsel rejected the criticism by the Prosecution that the application actually prevents the court from hearing additional witnesses. The defence has presented all its evidence and cannot prevent the Prosecution from presenting its own evidence. The first accused has not violated the rights of any of the co-accused, because as the first accused had exercised the right to cross-examine all the Prosecution witnesses and witnesses for the co-accused, the Prosecution and co-accused are entitled to cross-examine witnesses for the first accused.
16. It was submitted by Ms. Residovic on the construction of Article 20 and Rule 82, that the Prosecution does not have the right to introduce any other evidence to affect the case of the first accused through the presentation of the evidence of the co-accused after the first accused had closed his case. It was submitted that if this is not observed the right of the first accused to fair trial would have been violated.
17. Counsel further rejected the objection of the Prosecution founded on the difficulty of the Trial Chamber to evaluate the evidence of witnesses to the prejudice of the co-accused. It was submitted that the Trial Chamber consists of professional judges and that this is not a jury trial. The argument that the evaluation of the evidence in respect of the first accused would create prejudice against the other co-accused was said not to be applicable. It was submitted that the Judges of the Trial Chamber are perfectly capable of evaluating evidence in respect of and against each of the accused persons.
18. As an example of expeditious trial, counsel pointed out that in four months and four days the Prosecution in its 44 court days heard 25 witnesses. In contrast, the Defence of the first accused in its period of two months and 26 court days heard 15 witnesses. It was submitted that the Defence of the first accused has adhered to the instruction of the Trial Chamber in respect of expedition and the avoidance of duplication of witnesses and testimony. The first accused was said to be entitled to the relief sought. The first accused is not seeking a separate trial. The first accused only seeks enforcement of his right under Rule 82 of the Rules.
19. In its response to the Motion, the Prosecution relies, pursuant to the Rules, on the principles of fairness and efficiency and the decision of this Trial Chamber dated 25 September 1996, denying the accuseds prior motion for a separate trial (Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalic and the Accused Zdravko Mucic ("Decision of 25 September 1996"), RP D1409 - D1415).
20. It is submitted that the Motion is in essence an application for a separate trial. It is noted that an application for separate trial was denied in the Decision of 25 September 1996, and submitted that no changed circumstance warrants a review of this Decision. It is further argued that the effect of granting the Motion would mean duplication of resources, delay in the trial of other accused, and prevent the Trial Chamber from hearing additional relevant evidence.
21. It is submitted that evidence presented by witnesses is relevant to all the accused persons, and that defence attorneys for the co-accused frequently cross-examined defence witnesses for the first accused. With very rare exceptions, counsel for the first accused cross-examined every Prosecution witness. Almost all the documentary or other physical evidence introduced by the Prosecution is relevant to the first accused and all the other accused. Hence, considering the case of the first accused in isolation will restrict consideration of the credibility of almost every witness, and the assessment of every document, to the determination of the guilt or innocence of the first accused. The same exercise will then be repeated in the case of each accused. Such a duplication is unnecessary and would result in significant delay to the other accused persons.
22. It is further submitted that if the case against the first accused is thus concluded, the Prosecution might wish to seek to call rebuttal evidence. Otherwise, the necessity to call rebuttal evidence might be obviated by the testimony of other witnesses who testify in the case of the other accused. It is possible that rebuttal witnesses for the first accused might be required for the rebuttal case against other co-accused, after the conclusion of their case. It is noted that this would result in multiple use of the same witnesses, when a single appearance at the conclusion of the case of all the accused persons would be sufficient.
23. Similarly, it is argued that the address at the conclusion of the case of the first accused, would contain issues common to all the accused. The granting of the Motion would result in the repetition of the same address possibly on three other occasions. This would cause unnecessary delay in each of the other trials.
24. It is further submitted that allowing this procedure would result in every accused person seeking to be similarly treated; thereby making a mockery of the basic notion of joint trials.
25. In his oral argument, Mr. Niemann for the Prosecution reiterated the submission that the application is, in essence, one for a separate trial presented in another way. Counsel denied that at this stage the first accused still had a right for separate trial after the proceedings had started under Rule 85. A joint trial having started, the Prosecution can present the evidence jointly in reaction to all accused and has done so. Similarly, the same procedure will be adopted in rebuttal and submissions.
26. Mr. Niemann further submitted that a joint trial is ordered in the public interest. This interest outweighs the interests of the Defence in having a separate trial. Again, the mere fact that the accused will suffer prejudice is not sufficient for the granting of a separate trial.
27. In considering prejudice, Mr. Niemann pointed out that Rule 82 uses the words "serious prejudice". With respect to the legal position in the United Kingdom, it was said that the prejudice that there has to be demonstrated is "dangerous prejudice".
28. It is necessary to observe that the applicant is the first accused in these proceedings. The first accused is at the threshold of closing his defence. His application seeks an order from this Trial Chamber to conclude his defence of the charges against him, in all its stages, and for judgement and sentence, if any, to be delivered before the second accused should embark on his defence. By this the first accused is calling upon the Prosecution to indicate whether any rebuttal evidence would be called, so that he would decide on calling evidence on rejoinder. He is also asking for the final address on his defence by the Prosecution, and himself, and the deliberation on his case, judgement and sentence, if any, by the Trial Chamber.
29. It is relevant and important to refer to the fact that the first accused is jointly tried with the three other accused persons. The first accused has previously applied by a Motion filed on 5 June 1996 for a separate trial (Motion for a Separate Trial, RP D1-8/418 bis). In its Decision of 25 September 1996 the Trial Chamber dismissed the Motion. The reason given by the Trial Chamber for refusing to make the order pursuant to Sub-rule 82(B) was as follows:
. . . the accused have been properly joined and no showing of a conflict of interests has been made nor any prejudice to the interests of justice [. . .]. (Decision of 25 September 1996, at para. 10)
The first accused is, therefore, now asking for what amounts to a separate trial from the rest of the accused at this stage of the proceedings. The application is unique in that the accused is seeking only separate consideration at the conclusion of presentation of evidence for his defence.
30. The principles governing the joinder for trial of accused persons charged with committing offences in the same transaction, are prescribed by Rule 48 of the Rules. This provides simply as follows:
Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried. (Emphasis added)
The provision is very lucidly stated and requires very little, if any, construction of the words used. Only the phrase "same transaction" requires construction. The word "transaction" has been defined in Rule 2 as follows:
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.
31. This Trial Chamber, in construing Rule 48, has held that the word "transaction" should be read in the light of its definition in Rule 2 of the Rules and Rule 82(B) (see Decision of 25 September 1996, at paras. 1 and 2). We adopt this construction. In the opinion of the Trial Chamber the acts alleged were part of the same transaction. This is also clearly stated in paragraphs 13 and 14 of the Indictment, which provide as follows:
13. All of the victims referred to in the charges contained in this indictment were at all relevant times detainees in Celebici camp and were persons protected by the Geneva Conventions of 1949.
14. All acts described in the paragraphs below occurred in the Celebici camp in the Konjic municipality. (Emphasis added)
Thus all the acts complained of in the charges occurred in the course of the same transaction in the Celebici camp, and may be lawfully joined in the same indictment.
32. In its Decision of 25 September 1996 the Trial Chamber held that there is no provision for separate trial of distinct issues arising in the one indictment. However, there is provision for separate trial of accused persons joined in an indictment if the accused would comply with the provisions of Sub-rule 82(B) and the procedure prescribed in Rule 72.
Conditions Governing Applications for Separate Trial of
Accused Persons Jointly Indicted
33. The considerations for severance for separate trial of accused persons jointly indicted are governed by the Rules. Applications for the severance of crimes joined in one indictment or for separate trials of persons so joined under Sub-rule 82(B) may be made by preliminary motion brought within sixty days after the initial appearance of the accused and in any case before the hearing on the merits (Sub-rule 72(A)(iii)). All the motions for separate trial filed by the accused persons in the same Indictment were denied. The time for objecting to a wrongful joinder is clearly after the initial appearance and before commencement of the hearing on the merits (see Sub-rule 72(A)(iii)). Rule 48 is unequivocal that persons jointly indicted may be jointly tried. The provisions of Sub-rule 82(B) enable severance in appropriate cases.
Grounds for Separate Trials
34. Sub-rule 82(B), which provides for separate trial of accused persons jointly indicted, prescribes the conditions for severance. These are that the Trial Chamber may consider separate trial of persons jointly charged if (i) it considers it necessary in order to avoid conflict of interests that might cause serious prejudice to an accused, or (ii) to protect the interests of justice. It is obvious from the use of the conjunctive word or that either condition, if satisfied, will be sufficient to enable the Trial Chamber to make the order. Accordingly, if an accused, applying for a separate severance from a joint trial, is able to satisfy the Trial Chamber that conflicts of interests in the defence of the accused persons might cause serious prejudice to his defence or that it is necessary in order to protect the interests of justice, separate trial will be imperative.
Rationale for Joinder of Offenders
35. There are reasons of undoubted public interest why joint offences should be tried jointly. Savings in expense and time are a factor of importance. It is also desirable, and in the interests of transparent justice, that the same verdict and the same treatment should be returned against all the persons jointly tried with respect to the offences committed in the same transaction. It is also to avoid the discrepancies and inconsistencies inevitable from the separate trial of joint offenders. Hence, the principles of administration of criminal justice have always accepted the practice of trying joint offenders jointly irrespective of the attendant inevitable minimum prejudices. The provisions of Sub-rule 82(B) seems to give a wide discretion to the Trial Chamber in the determination of whether an accused jointly charged should be granted separate trial. This is because both the pre-conditions of causing serious prejudice to the accused, and the protection of the interests of justice, involve the exercise of judicial discretion.
36. It is obvious from the formulation of the reasons for granting separate trial in Sub-rule 82(B) that the overriding principle is the question of justice. Thus the Trial Chamber may, proprio motu, order a separate trial if satisfied that any of the accused persons in a joint trial may be seriously prejudiced from the conflict of interests arising from such a joint trial. The inevitability of some prejudice is recognised. What the interests of justice frown at is the effect of serious prejudice on the results of the trial as a whole. Separate trials may be ordered where evidence admissible against one of the accused would be inadmissible against the others, or where a separate trial would enable the Prosecution to call an accomplice.
37. The Applicant in this case submits that he is not seeking severance or a separate trial within the meaning of Sub-Rule 82(B). The first accused is only interested in the enforcement of his rights under Sub-rule 82(A) which provides that the first accused is to be accorded the same rights as if he were being tried separately. Counsel for the first accused, by this contention, relies on the provisions of Articles 20 and 21 of the Statute and Rule 85 of the Rules. This submission provokes the interpretation of the scope of the meaning of Sub-rule 82(A).
Construction of the Provisions of Sub-rule 82(A) and Rules 83, 84, 86 and 87
38. The first accused is seeking an order that he be allowed to conclude his evidence, make closing arguments, and have deliberation by the Trial Chamber, judgement and possibly sentence before the second accused should start his defence. It is contended that this procedure can be read into Sub-rule 82(A). A careful reading and interpretation of Sub-rule 82(A) and Rules 86 and 87 demonstrates that there was no intention in the provisions to sever a joint trial at any stage unless the conditions in Sub-rule 82(B) have been satisfied.
39. It is relevant to point out that the purport of Sub-rule 82(A) is to vest in the accused in a joint trial all the rights of a single accused on trial before a Trial Chamber. Accordingly, the accused jointly tried does not lose any of the protection under Articles 20 and 21 of the Statute, or his rights under Rules 83, 84, 85, 86 and 87 of the Rules.
40. It is pertinent to refer to Rule 83 which provides for the removal of handcuffs and any instrument of restraint when the accused is before the Trial Chamber. The Defence is, under Rule 84, entitled to make an opening speech after the Prosecution. The order for presentation of evidence remains the same as in Rule 85, as with the closing arguments after the presentation of all the evidence (Rule 86).
41. It is in Rule 86 that a seeming difficulty arises with respect to the meaning of the joint trial of accused persons. But this difficulty disappears when subjected to the definition of Sub-rule 2(B) applicable to all the Rules which says that "[I]n the Rules, the masculine shall include the feminine and the singular the plural, and vice-versa". If so construed an accused person in a joint trial, though vested individually with all the rights of an accused person in a single trial, is subject to the collective rights of the group in the overall interests of justice for ensuring an expeditious and fair trial.
42. Accordingly, an accused in a joint trial will make his opening statements before the presentation of evidence and his closing arguments after the presentation of all the evidence (Rule 86). The presentation of all the evidence in Rule 86 in a joint trial means all evidence on the part of the Prosecution and the Defence of each accused, as a whole. It is not confined to all the evidence of each accused person in the Defence. When Rule 87 refers to both parties completing their presentation of the case it means the Prosecution and all the accused persons as a Defence in a joint accused trial. The Presiding Judge shall declare the hearing closed and the Trial Chamber shall deliberate in private. It is not intended in a multiple accused trial to close the case for each accused person by conducting a separate closing address for this purpose (Rule 87). The trial is a joint trial of all the accused persons on the indictment which has not been severed.
43. Counsel has submitted that because separate findings shall be made as to each accused in accordance with Rule 87 in a joint trial, this suggests that the joint trial may be severed at any stage of the trial. Such interpretation ignores the fundamental rationale of a joint trial which is to ensure as nearly as possible that the same verdict and the same treatment shall be returned against all those concerned in the joint trial on the indictment of the offences. It is also to avoid inconsistencies which might arise from trying joint offences as separate offences. The contention that Sub-rule 87(B) does not forbid a separate trial during a joint trial is erroneous. There is nothing to suggest that it approves of a separate trial. A separate finding on each accused in a joint trial is not inconsistent with a joint trial. A separate finding relates merely to an issue in the trial.
44. It is also contended by the applicant that the requirement of separate findings, under Sub-rule 87(B) in respect of the accused in a joint trial, supports the concept of separate trial. The Trial Chamber is of the opinion that the interpretation is erroneous. Sub-rule 87(B) cannot be so construed. The rationale for the Rule is that each accused, having been charged with a distinct offence, even if the same, in different counts, ought to be considered separately in accordance with the supporting evidence. The accused persons have been jointly tried. Findings as to guilt or not are particular to the individual accused. This is why Rule 87, though providing for deliberation in respect of the trial, speaks of voting separately on each charge, and separate findings in respect of each accused tried together under Rule 48. The provisions of Sub-rule 87(B) speak of joint trial.
45. The submission of Counsel to the first accused, of the intention to waive any benefits that would accrue to him arising from a joint trial, is clearly indicative of the awareness that the joint trial of the accused person seeking separate trial is still in progress. If Counsel wishes to have a separate trial, then it is mandatory to establish the essential requirements of conflict of interest in the trial seriously prejudicial to the interests of such accused, or overall public interest and interests of justice. These are the preconditions for severance in a joint trial.
46. Counsel to the first accused recounts the advantages to the trial of economy of judicial time and savings in financial expenditure if the case of the first accused is finally disposed of before the presentation of the evidence of the co-accused. It is pointed out that the first accused being required to wait for the presentation of the evidence of the other three co-accused will constitute a breach of his rights under Articles 20 and 21. The Trial Chamber agrees entirely with the position taken by the Prosecution on these submissions. It cannot seriously be suggested that there would be any difference from holding a separate trial if, as the first accused advocates, the three co-accused from this stage of the proceedings have to wait for the conclusion of evidence, addresses, deliberation, judgement and possible sentence in his case, before going through the same procedure themselves. The evaluation of the evidence and the credibility of the witnesses, will be confined and restricted to the evidence against the first accused. So will it be in respect of the others. On the other hand, in a joint trial, evidence at the trial concerns all the co-accused and evaluation of such evidence is not necessarily restricted to the evidence of the one accused whose evidence is in issue. The Trial Chamber is of the opinion that the assessment of the credibility of the witnesses and the assessment of almost every document, the deliberation on the guilt of all the accused persons, which should be done only once at the conclusion of the closing addresses of the accused persons, will be repeated in respect of each accused person if the contention of the first accused were to be the correct legal position. We do not consider this to be the law.
47. The Trial Chamber accepts the contention of the Prosecution that the possibility of it calling rebuttal evidence, with the possibility of the accused calling evidence in rejoinder or the Trial Chamber calling evidence proprio motu, is better considered when all the accused persons have closed their cases. This is the close of the case for the Defence. Otherwise, the Trial Chamber will be confronted with unnecessary multiplication of evidence, repetition resulting in significant, avoidable delay to the trial. The procedure suggested is likely to affect the rebuttal evidence, if any, to be called. This is because the same rebuttal witness to the evidence of the first accused could also be a rebuttal witness to the evidence of another accused. This will result in the undesirable situation where the same witness will be required for the rebuttal of the evidence of another accused. A witness whose testimony requires rebuttal will be required to testify as many times as there are accused persons testimony to rebut. Finally, the comparison of the court days spent by the Prosecution and the days already spent on the witnesses for the first accused, considered on the basis of the period to be spent on each accuseds witnesses, demonstrates how much delay a separate trial, at this stage of the proceedings, will cause.
48. Counsel to the first accused relies on the provisions of Articles 20 and 21 of the Statute for the contention that, even in a joint trial, the Trial Chamber should allow the first accused to conclude his case unto the delivery of judgement, otherwise his right to an expeditious and fair trial would be violated. It is important to appreciate that the provisions of Article 20 vest in the Trial Chamber, not the accused person, the responsibility to "ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused . . .". In a joint trial, with multiple accused persons, the responsibility of the Trial Chamber, in accordance with this provision, is with respect to the rights of all the accused persons. Each of the accused persons in a joint trial is entitled to the rights under Article 21(4)(c), namely the right to be tried without undue delay. It is, therefore, necessary to protect the equal competing rights of the accused persons in a joint trial to an expeditious and fair trial by a strict application of the Rules. As there is no rule prohibiting severance at this stage, so there is none permitting it.
49. The rationale for a joint trial of accused persons is to ensure that persons jointly indicted should be jointly tried. Apart from the savings in financial expenditure and judicial time, it is in the interests of the public and overall interests of justice that the same verdict and the same treatment should be returned against all the persons concerned in the offences arising from the same transaction. A joint trial avoids or at least ameliorates the discrepancies and inconsistencies inevitable from the separate trial of joint offenders.
50. This application is not for a separate trial of an accused person jointly indicted and tried. It is thus designated, for lack of a better description. The trial of the first accused would have been concluded when the relief sought would be considered. But since this is a joint trial, the conclusion of which is subject to the closing of the case of the other three accused persons jointly indicted, the Defence case cannot be closed. The provisions of Sub-rule 82(A) cannot be construed to enable a separate trial of accused jointly indicted and tried. The provisions of Sub-rule 82(B) which is the only provision enabling such a separate trial have not been satisfied. The Trial Chamber has not been given any reason why it should, in the interests of justice, exercise its discretion to grant a separate trial at this stage of the joint trial.
For the foregoing reasons, THE TRIAL CHAMBER
PURSUANT TO RULE 54,
HEREBY DENIES the Motion.
Done in both English and French, the English version being authoritative.
Adolphus G. Karibi-Whyte
Dated this first day of July 1998
At The Hague,
[Seal of the Tribunal]