Case No. IT-02-57-PT
Judge Patrick Robinson, Presiding
Judge Carmel Agius
Judge Liu Daqun
Mr. Hans Holthuis
21 September 2005
THE PROSECUTOR v. VUJADIN POPOVIC
THE PROSECUTOR v. LJUBISA BEARA
THE PROSECUTOR v. DRAGO NIKOLIC
THE PROSECUTOR v. LJUBOMIR BOROVCANIN
THE PROSECUTOR v. ZDRAVKO TOLIMIR, RADIVOJE MILETIC & MILAN GVERO
THE PROSECUTOR v. VINKO PANDUREVIC & MILORAD TRBIC
DECISION ON MOTION FOR JOINDER
The Office of the Prosecutor:
Mr. Peter McCloskey
Counsel for the Accused:
Zoran Zivanovic for Vujadin Popovic
John Ostojic for Ljubisa Beara
Jelena Nikolic for Drago Nikolic
Alan Newman and Miodrag Stojanovic for Ljubomir Borovcanin
Natacha Fauveau Ivanovic for Radivoje Miletic
Dragan Krgovic for Milan Gvero
Djorde Sarapa for Vinko Pandurevic
Colleen Rohan for Milorad Trbic
1. On 10 June 2005, the Prosecution filed a “Motion for Joinder of Accused”, seeking to join six cases involving nine accused together in one indictment (“Joinder Motion ” or “Motion”).1 On 29 June, the President of the Tribunal issued an order appointing Judges Robinson, Agius and Liu to constitute the Trial Chamber “for the purpose of determining the Joinder Motion.”2
2. Six of the eight accused currently before the Tribunal3 (from four out of the six cases) filed a response to the Joinder Motion. Three oppose the Motion;4 two state that they do not oppose it, but mount various arguments against it,5 and one does not oppose it.6 Beara and Borovcanin have not responded.
3. On 28 June 2005, the Prosecution filed a Motion for Amendments to the Indictments, along with a proposed amended indictment that includes all nine accused. The amended indictment proposes, among other things, to (i) delete the charge of complicity in genocide against several accused, (ii) add or expand the charges of conspiracy to commit genocide, genocide, extermination, deportation and forcible transfer against others, and (iii) “clarify” other legal charges.7
4. On 12 July 2005, the Prosecution filed a consolidated reply to the responses of Miletic and Gvero to the Joinder Motion, along with a request for leave to file the submission on the ground that “it would be in the interests of justice and efficiency to have these arguments before the Trial Chamber.”8 In response, on 28 July Miletic filed an “addendum” to his original response to the Joinder Motion, along with a motion for leave to file it.9
5. On 2 September 2005, the Trial Chamber issued an order proprio motu requiring the Prosecution to address the Chamber regarding the number of witnesses it expects to call and the expected length of the trial (i) in the event of a joint trial and (ii) if the cases were tried separately.10
6. On 5 September 2005, the Prosecution filed a response to this order,11 and the accused Gvero and Miletic filed replies on 12 and 16 September respectively .12
II. The Standard
7. Rule 48 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides that “SpCersons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.” A “transaction” is defined in Rule 2 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.”
8. If the Chamber decides that the requirements of Rule 48 have been met, it may, based on an evaluation of various factors, decide either to grant joinder or leave the cases to be tried separately.13 The case law of the Tribunal suggests that the following factors may properly be taken into account in making this determination: (i) avoiding the duplication of evidence, (ii) promoting judicial economy, (iii) minimising hardship to witnesses, (iv) ensuring the consistency of verdicts, (v) avoiding a conflict of interests that might cause serious prejudice to an accused and (vi) protecting the interests of justice.14 In deciding whether charges against more than one accused should be joined pursuant to Rule 48, the Chamber should base its determination upon the factual allegations contained in the indictments and related submissions.15
III. The Motion
9. According to the Prosecution’s Joinder Motion, the requirements of Rule 48 are met because all the indictments relate to the same “transaction”: a common scheme whose purpose was to ethnically cleanse the Eastern Bosnian enclaves. Specifically, the scheme consisted of two interrelated joint criminal enterprises: one to “force the Muslim population from the Srebrenica and Zepa enclaves” and the second “to murder all the able-bodied men captured from the Srebrenica enclave.”16
10. The Prosecution states that “[t]he crime base allegations against all of the … Accused are identical.”17 All of the accused “were working together with other VRS [Bosnian Serb Army] and MUP [Bosnian Serb Interior Ministry] officers … that knowingly participated in the joint criminal enterprise.”18 Their “common purpose ” was to “ethnically cleanse the Bosnian Muslim population from the Srebrenica and Zepa areas” and they are all charged with criminal responsibility under Article 7(1) and with crimes under Articles 4 and 5 of the Tribunal’s Statute.19
11. The Prosecution admits that only the most recent indictment—against Tolimir, Miletic and Gvero—charges the accused with ethnic cleansing in Zepa, as opposed to Srebrenica alone, but, it argues, “the present Indictments nevertheless allege that ridding Zepa of the Bosnian Muslim population was part of the greater plan to rid the Eastern Bosnia region of the Bosnian Muslim population.”20 The Prosecution also acknowledges that not all of the accused are charged with the same crimes (for instance some are not charged with genocide, extermination or forcible transfer, and only two of the nine are charged with command responsibility under Article 7(3)), but, it stresses, they are all charged with crimes committed “in the course of one campaign pursuant to a common scheme, which was to rid Srebrenica of the Bosnian Muslim population, within the same time frame and locations, and hence satisfies the ‘same transaction’ requirement of Rule 48.”21 It adds that the proposed amended indictment, if confirmed, would further streamline the charges.22
12. In addition, the Prosecution argues that the Chamber should exercise its discretion to grant joinder because doing so would (i) avoid the duplication of evidence such as evidence relating to the crime base and the structure of the VRS army; (ii) promote judicial economy, especially since the Tribunal does not have time to try two or more Srebrenica cases within the dates of its current mandate; (iii) minimise the hardship to victims and witnesses, many of whom would otherwise be required to give testimony in six separate trials, and (iv) ensure a consistent approach regarding verdicts and the evaluation of evidence.23 It adds that joining the six indictments would not cause prejudice to any of the accused because all the cases are “procedurally at the same pre-trial stage within a few months apart” and none of the accused would suffer a significant delay by having their case joined to the other five.24
IV. The Responses
13. The six accused who have responded to the Joinder Motion raise objections to it on the following grounds:
Rule 48 25
14. The Prosecution has charged all the accused with crimes committed in the course of the same “transaction”, as required by Rule 48. Only one of the accused, Pandurevic, explicitly disputes this.37 The charges in the indictments relate to acts carried out by the same people, against the same people, during one period of time and in the same area, and this is all that is required.38 It is not necessary for all the facts to be identical.39 Indeed, the acts of the accused can form part of the same transaction even if they were carried out in different areas and over different periods of time, provided that there is a sufficient nexus between the acts committed.40
15. Here, all nine accused were part of the armed forces of the Republika Srpska41 and all accused are charged with crimes in the same geographical area (eastern Bosnia, specifically Srebrenica and/or Zepa) during substantially the same time period (either March to August 1995 or July to November 1995).42 Many of the accused are also charged with the same crimes.43 This clearly satisfies the requirements of Rule 48, which explicitly states that joined accused may be charged with “different crimes”, and Rule 2, which contemplates that the acts constituting a single “transaction” may take place in “different locations” so long as they form part of a common plan.
16. And, as the Prosecution stresses, although the charges against certain accused are based on only one of the two alleged joint criminal enterprises—the forced removal of the Bosnian Muslim population from Srebrenica and Zepa, but not the killing of the able-bodied men of Srebrenica44— the factual allegations which relate to the two enterprises are closely interlinked .45 Thus
although the joint criminal enterprise for the forcible removal of the population … had begun in March 1995, the forced removal of the Bosnian Muslim population culminated in the actual physical removal of the population from Srebrenica on 12 and 13 July 1995. The majority of the mass killings subsequently took place between 12 and 17 July and … the plan to murder the able bodied men of Srebrenica began on the afternoon of 12 July with the forcible separation of the able bodied men in Potocari from their families . . . .46
17. Moreover, as the Appeals Chamber has made clear in defining the “same transaction ” for purposes of Rule 49, the various acts of the accused can be found to have a common purpose even if they do not overlap in time or place. Thus in the Milosevic case the Appeals Chamber granted joinder of the three—Kosovo, Croatia and Bosnia —indictments even though (i) there was a gap of more than three years between the last events in Bosnia and the first events in Kosovo, (ii) the conflicts in Croatia and Bosnia took place in neighbouring states to the Federal Republic of Yugoslavia whereas those in Kosovo took place in the FRY itself, and (iii) the accused was alleged to have acted indirectly in relation to Croatia and Bosnia but directly (as the commander of the armed forces of the FRY) in relation to Kosovo. For the Appeals Chamber it was sufficient that
[t]he purpose behind the events in each of the three areas for which the accused is alleged to be criminally responsible was the forcible removal of the majority of the non-Serb civilian population from areas which the Serb authorities wished to establish or to maintain as Serbian-controlled areas by the commission of the crimes charged. The fact that some events occurred within a province of Serbia and others within neighbouring states does not alter the fact that, in each case, the accused is alleged to have acted in order to establish or maintain Serbian control over areas which were or were once part of the former Yugoslavia.47
18. Some of the responses to the Joinder Motion appear to acknowledge that the charges in the six indictments are based on a common campaign or plan but suggest that because certain accused played subordinate roles in the campaign or were very low down in the chain of command compared to other accused, joinder under Rule 48 is precluded . This is not correct because, as several Trial Chambers have held, it “does not matter what part the particular accused played provided that he participated in [the] common plan.”48 Indeed, as the Prosecution points out, the fact that the accused were all part of the same army and “intimately linked in the hierarchical structure” may even support the argument that they acted in concert pursuant to a common scheme.49 Thus the accused are eligible for joinder under Rule 48.
19. The discretionary factors militate in favour of granting the Joinder Motion.
Avoiding Duplication of Evidence and Promoting Judicial Economy
20. Based on the pre-trial material produced to date, the Chamber finds that a single trial is likely to take less time than six separate ones and that it is therefore in the interest of judicial economy to try the accused together. In the past some Trial Chambers have assumed that joinder would speed up proceedings, while others have predicted that it would slow them down. Here, the scales tip in favour of a single trial because the “crime base” evidence is the same for each accused and could be presented once in a joint trial instead of six times in separate ones.50
21. The Prosecution estimates that there are approximately 100 witnesses common to all accused, so that if the six trials were to take place separately, the Prosecution would have to call a total of 685 witnesses, whereas if there was a joint trial, the prosecution would only call 135 witnesses (35 witnesses being specific to particular accused). In addition they posit that if the six cases were tried separately, the trials would likely last 93-95 months (7-8 years), whereas a joint trial would take only 18-24 months (1-2 years).51 So the Prosecution suggests that approximately 6 years would be saved by joining the trials.
22. On the basis of these submissions and the arguments of the parties, the Chamber finds that multiple trials are thus likely to increase the length of the trial because
separate trials would result in a fair amount of ‘linkage (overlapping) evidence’ which would have to be adduced in [each of the] trials. Considering that the Prosecution would be presenting much of the same evidence in each trial, joinder will permit the Trial Chamber to proceed with the case more efficiently….52
23. In addition, the Chamber notes that the cases are currently all at a similar stage in the pre-trial proceedings, so there is no danger that one case will significantly delay the others from going to trial. It is true that one of the accused remains at large, but the Chamber finds that this is not likely to lead to any significant delay because the Chamber can at any time exercise its discretion to sever his trial from that of his co-accused.53
24. Thus, avoiding the duplication of evidence and promoting judicial economy are both factors that militate in favour of granting joinder.
Protection of Witnesses and Consistency of Verdicts
25. Witnesses would be better protected in a single trial. The issue of protecting witnesses, like the issue of delay, may or may not favour joinder depending on the circumstances of the case, but in this case it supports the single-trial outcome . This is because having a single trial means that witnesses will not need to travel to The Hague, give direct testimony, and answer questions from judges multiple times . Several of the accused suggest that it would be more traumatic for a witness to be exposed to eight or nine consecutive cross-examinations in one case than to undergo cross-examinations in six separate trials. On balance, however, it would seem that the need for a witness to give potentially traumatic (direct) testimony on six separate occasions over a period of several years would be more burdensome than consecutive cross-examinations in a single trial. Furthermore, the cross-examination of witnesses is a matter which can be regulated by the Trial Chamber, for instance by prohibiting repetitive questions by consecutive counsel for the accused.
26. The Trial Chamber also notes that witnesses are more likely to be available if called to testify once during the course of the next 1-2 years (the time the Prosecution estimates a joint trial would take) than if they were expected to come to the Tribunal six times during the course of the next 7-8 years (the time the Prosecution estimates six separate trials would take). The availability of witnesses for trial benefits both parties, either because they are interested in the witness’ direct evidence, or because they will have the opportunity to engage in cross-examination. The increased likelihood that witnesses will be available also serves the interests of justice more generally, because if different Trial Chambers dealing with the same subject-matter have different witnesses available to them there is a risk that their subsequent evaluation of the evidence, and ultimately their findings, will be inconsistent.
27. Contrary to the argument of one of the accused, consistency in the treatment of evidence and in verdicts is also a relevant and important factor in the evaluation of joinder motions. This is due to the “fundamental and essential public interest in ensuring consistency in verdicts.”54 Here a joint trial heard by one bench assessing the same evidence and witnesses is more likely to lead to a consistent assessment of the evidence, and ultimately to consistent verdicts, than if the accused were tried separately.55
28. Thus, protecting witnesses and ensuring the consistency of verdicts are both factors that militate in favour of granting joinder.
Prejudice to the Accused
29. These factors must, of course, be balanced against the possibility that joinder may adversely affect the rights of one or more of the accused.
Presentation of Prejudicial Evidence
30. Several responses to the Joinder Motion assert that, in a joint trial, prejudice to the accused may generally result from the presentation—in his trial—of evidence that relates exclusively to other accused. The Chamber holds that prejudice to an accused is not an inevitable consequence of joinders under Rule 48, and that therefore blanket a priori statements alleging that an accused could be prejudiced by the presentation of evidence relating to events in which he never took part, unsupported by concrete allegations of specific prejudice that is likely to result, are not compelling. This is because Chambers of the Tribunal, unlike certain domestic criminal courts, are made up of “‘professional judges [who are] able to exclude that prejudicial evidence from their minds’” when it comes to determining the guilt of a particular accused.56 Thus in the Brdjanin case, for instance, the Trial Chamber concluded that:
[t]he fact that evidence will be brought relating to one accused (and not to another ) is a common feature of joint trials. On the basis of the submissions and the allegations in the indictment the Trial Chamber is of the view that this in itself will not cause serious prejudice to [the accused].57
31. In this case Miletic and Gvero are the only accused who make a specific argument regarding the risk of prejudice. They—unlike some of the other accused58— are not charged with genocide, conspiracy to commit genocide, or extermination for killing the able-bodied men of Srebrenica and as a result, they argue, all the evidence presented to substantiate the allegation that their co-accused committed these crimes would prejudicially affect their trial. The Chamber notes this disparity in charging but finds that in this case the risk of prejudice is still remote because all the accused, including Miletic and Gvero, are nevertheless charged with acts whose purpose was to ethnically cleanse the Bosnian Muslim population of Srebrenica. Thus the Trial Chamber accepts the Prosecution’s representation that the bulk of the evidence against them will be the same:
The only component of the joint criminal enterprise with which Gvero and Miletic have not been charged … [is] the mass killings of the able-bodied men. These are, however, the same men that Gvero and Miletic participated in forcibly removing from the enclave, and their organised murders, while not part of the actual charges against Gvero and Miletic, will form part of the evidence against them even if they are tried separately from the other named co-accused.59
As a result the Trial Chamber sees no concrete risk of prejudice to any accused on this ground.
Conflicts of Interest
32. Closely related to the issue of the prejudice to an accused that can result from the presentation of evidence in a joint trial is the issue of conflicts of interest that may arise between the accused themselves during the course of such a trial. The Prosecution alludes to “one conflict between Accused Trbic and some of the other accused wherein Trbic in statements to the OTP and in testimony at the Blagojevic/Jokic trial, implicated several of his current co-accused in the Srebrenica crimes.”60 No further details are provided, however, and Trbic, in his response to the Joinder Motion, does not allege that any conflict exists.61 Thus the allegation by some accused that a joint trial would result in a conflict of interest has not been substantiated.62
33. Trial Chambers have in the past held that conducting joint trials where co-accused may testify against each other does not per se constitute a conflict of interests between accused63 and that the mere “‘possibility of mutually antagonistic defences’ does not constitute a conflict of interests capable of causing serious prejudice”64 because “trials in this Tribunal are conducted by professional judges who are necessarily capable of determining the guilt of each accused individually.”65 In the Trial Chamber’s view, then, no convincing argument has been advanced by any of the accused as to the possibility of any conflict of interest that would prohibit joinder.66
34. In sum, the Trial Chamber believes that a single trial—by avoiding the duplication of evidence (paras. 20-22), promoting judicial economy (paras. 20-23), safeguarding the rights and availability of witnesses (paras. 25-26), and ensuring consistency of verdicts (para. 27)—will better protect the interests of justice. The rights of the accused will also, in the Chamber’s view, be better protected in a joint trial which is likely to (i) be more expeditious (paras. 21-23) and (ii) have a fuller evidentiary record (para. 26) than if the six cases were to proceed independently . Moreover, the Chamber is not convinced that the accused are likely to suffer prejudice if a joint trial is ordered (paras. 30-33).
35. Finally, the Trial Chamber believes that its decision on the Joinder Motion is aided by consideration of all the arguments raised by the parties and therefore grants (i) the Prosecution motion for leave to file its consolidated reply and (ii) Miletic’s motion for leave to file the “addendum” to his initial response to the Joinder Motion .
36. For these reasons, pursuant to Rules 48 and 126 bis of the Rules, this Trial Chamber hereby orders as follows:
(a) The Prosecution is granted leave to file the Prosecution Consolidated Reply to Defence Response to Prosecution Motion for Joinder of Accused;
(b) The accused Miletic is granted leave to file the Addendum to Response to the Joinder Motion of 5 July, and
(c) The Prosecution’s Joinder Motion is granted.
37. The Trial Chamber requests the Registry to designate one unified case number to the joined case forthwith.
Done in English and French, the English version being authoritative.
Judge Patrick Robinson
Judge Robinson appends a Separate Opinion to this Decision.
Dated this 21st day of September 2005
At The Hague
[Seal of the Tribunal]