IN TRIAL CHAMBER III
Judge Patrick Robinson, Presiding
Judge Carmel Agius
Judge Liu Daqun
Mr. Hans Holthuis
6 October 2005
THE PROSECUTOR v. VUJADIN POPOVIC
PROSECUTOR v. LJUBISA BEARA
THE PROSECUTOR v. DRAGO NIKOLIC
THE PROSECUTOR v. LJUBOMIR BOROVCANIN
PROSECUTOR v. ZDRAVKO TOLIMIR, RADIVOJE MILETIC & MILAN
THE PROSECUTOR v. VINKO PANDUREVIC & MILORAD
DECISION ON MOTION FOR CERTIFICATION
OF JOINDER DECISION FOR INTERLOCUTORY APPEAL
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
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.1 On
29 June 2005, 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. On 21 September 2005, the Trial Chamber issued
a decision granting the motion for joinder (“Decision”).
Judge Patrick Robinson appended a Separate Opinion
to the Decision.
3. On 27 September 2005, the accused Pandurevic
and Miletic filed separate motions for certification
of the Trial Chamber’s Decision for interlocutory
Prosecution filed a consolidated response to the
Motions 3 days later.4
4. On 3 October 2005, Miletic filed a reply to
response, along with a motion for leave to file
II. The Standard
5. According to Rule 73 (B) of the Rules of Procedure
and Evidence of the Tribunal (“Rules”), “[d]ecisions
on all motions are without interlocutory appeal
save with certification by the Trial Chamber, which
may grant such certification if the decision involves
an issue that would significantly affect the fair
and expeditious conduct of the proceedings or
the outcome of the trial, and for which, in the
opinion of the Trial Chamber, an immediate resolution
by the Appeals Chamber may materially advance the
6. In other words, a Trial Chamber can only exercise
its discretion to certify a decision for interlocutory
appeal if two criteria are satisfied: (1) the decision
involves an issue which would significantly affect
the fair and expeditious conduct of the proceedings
or the outcome of the trial, and (2) an
immediate resolution of this issue may, in the
opinion of the Trial Chamber, materially advance
the proceedings . These two criteria are cumulative:
they must both be satisfied if certification is
to be granted.6
7. The accused Miletic makes the following arguments
in favour of certification:
- The Trial Chamber “did not correctly interpret
the right to present evidence” when
it accepted the Prosecution’s claim that, even
though Miletic is not charged with crimes relating
to the alleged mass killings, there would be a
considerable overlap between the evidence presented
against him and the evidence presented against
the other accused;7
- The Trial Chamber “did not correctly assess” the
potential prejudice that Miletic could suffer
in a joint trial as a result of the presentation
in his trial of evidence which is not relevant
to the charges against him;8
- This issue “is extremely important for the conduct
of the trial and for its outcome
” and “directly affects the right of the accused guaranteed
by the Tribunal’s Statute
- “Since a joinder could prejudice the rights
of the accused and the fairness of the trial in
an irreversible and irreparable manner, this matter
must be disposed of once and for all prior to
the commencement of the trial”10,
- An “immediate resolution may materially advance
the proceedings” because although
the defence could at a later stage file a motion
seeking separate trials, “such
a step would cause delays in the proceedings”11,
and “should an error of law be committed in the
decision on joinder … a new trial
might be necessary.”12
8. The accused Pandurevic makes the following arguments
in favour of certification:
- “[T]he case of Vinko Pandurevic differs substantially
from the cases of all other accused persons. Accordingly
there is no same transaction for the purpose of the
provisions of Rule 48 of the Rules of Procedure
and Evidence as a base [sic] for joinder”;13
- Because “the case of Vinko Pandurevic SisC different
from all the other accused
… [a] joint trial with other accused would not be fair
for him for the purpose of the provisions of Article
20 of the Statute”14,
- The conditions in Rule 73(B) are satisfied and “the
filing of the appeal is in the interest of justice.”15
9. The Prosecution, in its consolidated response,
- The Motions fail to identify an error of law
or fact in the Trial Chamber’s Decision
and in large part simply reiterate the arguments
set out in earlier pleadings opposing joinder;16
- Pandurevic reiterates the argument that there
is no “same
transaction” for purposes
of joinder under Rule 48 but points out no error
of law or fact in respect of this conclusion by the
Trial Chamber; indeed, such a conclusion is clearly
supported by the Tribunal’s jurisprudence;17
- Miletic reiterates the argument that he would
be prejudiced by joinder because in a joint trial
the Prosecution could present evidence regarding
the commission of mass murders which is not relevant
to him, but establishes no error of law in respect
of the conclusions of the Trial Chamber; indeed, “the
Indictment clearly alleges that Miletic was a named
member of the joint criminal enterprise which includes
the mass murders of the able-bodied men of Srebrenica.
Therefore, the Prosecution is entitled in law … to
lead evidence of the mass murders which are relevant
to the proof of the joint criminal enterprise”;18
- The Motions fail to demonstrate that the Decision
would significantly affect the fair and expeditious
conduct of the proceedings or the outcome of
the trial, and
- The Motions fail to demonstrate that an immediate
resolution of this issue by the Appeals Chamber
may materially advance the proceedings.19
10. The Trial Chamber is satisfied that the cumulative
requirements of Rule 73 (B) have been met.20
11. The first requirement of Rule 73(B) is met
because the Decision involves an issue – the right
of an accused to be accorded the same rights in a
joint trial as he would have if tried separately – which
significantly affects the fair and expeditious conduct
of the proceedings.
12. The second requirement of Rule 73(B) is also
met because if the Appeals Chamber were to find
the Decision flawed, it may be necessary to conduct
new trials in which one or more accused are severed
from the rest, an outcome which would be prejudicial
to the accused, to witnesses and to the interests
of justice and judicial economy . Therefore an
immediate resolution of this issue by way of interlocutory
appeal may, in the Trial Chamber’s view, materially
advance the proceedings.
13. Finally, the Trial Chamber believes that its
decision on certification is aided by consideration
of all the arguments raised by the parties and
therefore grants Miletic’s motion for leave to
file his Reply to the Response of the Prosecutor
concerning the Motion for Certification of the
Appeal dated 27 September 2005.
14. For these reasons, pursuant to Rule 73 of the
Rules, this Trial Chamber hereby GRANTS the motions
for certification and GRANTS Miletic’s motion for
leave to file the Reply to the Response of the
Prosecutor concerning the Motion for Certification
of the Appeal dated 27 September 2005.
Judge Liu appends a Partially Dissenting Opinion
to this Decision.
Done in English and French, the English version being
Judge Patrick Robinson
Dated this 6th day of October 2005
At The Hague
[Seal of the Tribunal]
1 - Motion for Joinder
of Accused, Prosecutor v. Popovic, IT-02-57-PT, Prosecutor
v. Beara, IT-02-58-PT, Prosecutor v. Nikolic,
Prosecutor v. Borovcanin, IT-02-64-PT, Prosecutor
v. Tolimir et al., IT-04-80-PT, Prosecutor v.
Pandurevic and Trbic, IT-05-86-PT, 10 June 2005. The accused
are Vujadin Popovic, Ljubisa Beara, Drago Nikolic,
Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Miletic,
Milan Gvero, Vinko Pandurevic and Milorad Trbic.
2 - See Order Referring
the Joinder Motion and Corrigendum to Order Referring
the Joinder Motion, Prosecutor
v. Popovic, IT-02-57-PT, Prosecutor v. Beara,
Prosecutor v. Nikolic, IT-02-63-PT, Prosecutor
IT-02-64-PT, Prosecutor v. Tolimir et al., IT-04-80-PT,
Prosecutor v. Pandurevic and Trbic, IT-05-86-PT,
29 June 2005 and 4 July 2005 respectively.
3 - Vinko
Pandurevic’s Defence Request for Certification to File
the Interlocutory Appeal Against the Trial Chamber’s
Decision on Motion for Joinder, Case No. IT-04-86-PT,
27 September 2005 (“Pandurevic Motion”); Request
for Certification to Appeal the Decision on Motion
for Joinder of 21 September 2005, Prosecutor v.
Tolimir et al., IT-04-80-PT (“Miletic Motion”).
Although the Motions were filed before Trial Chamber
II, Trial Chamber III, as the Chamber which rendered
the Decision, has jurisdiction over applications for
its certification. See also Order Referring the Joinder Motion, supra n.
4 - Prosecution’s
Consolidated Response to Vinko Pandurevic’s and Radivoje
Miletic’s Application for Certification of Decision
on Motion for Joinder, Case No. IT-04-80 and IT-04-86,
30 September 2005 “Prosecution Response”).
5 - Application
for Leave to Reply and Reply to the Response of the
Prosecutor concerning the Motion for Certification
of the Appeal dated 27 September 2005, Prosecutor
v. Tolimir et al., IT-04-80-PT, 3 October 2005
6 - See,
e.g., Prosecutor v. Mejakic et al., Case
No. It-02-65-PT, Decision on Knezevic's Motion for
Certification for Interlocutory Appeal of ‘Decision on Prosecution’s
Motion to Amend Consolidated Indictment Schedules A
through F, the Rule 65 Ter Witness Summaries,
and the Pre-Trial Brief Incident Summaries’, 25 January
7 - Miletic Motion, paras.
8 - Id.
at para. 6. Miletic argues that the Trial Chamber’s
conclusions (a) that prejudice to the rights of each
accused was not an “inevitable consequence” of joinder
and (b) that in the present case, the risk of such
prejudice was remote, were both wrong. Id. at
para. 13. Miletic goes on to argue that the Decision
that there is a genuine risk of prejudice” when it
states that a Trial Chamber in a joint trial could
regulate cross-examination by prohibiting repetitive
questions by consecutive counsel for the accused. Such
regulation would, according to Miletic, violate the
right of an accused to be accorded the same rights
in a joint trial as he would have had if he were tried
separately (Rule 82(A)) and his right to cross-examine
witnesses through his own counsel (Article 21 of the
Statute). Id. at paras. 19-21.
9 - Miletic Reply, para.
10 - Miletic Motion, para.
11 - Id.
at para. 25.
12 - Miletic Reply, para.
13 - Pandurevic Motion,
14 - Id.
at para. 7.
15 - Id.
at para. 9.
16 - Prosecution
Response, para. 7.
17 - Id.
at paras. 8-11.
18 - Id.
at para. 15. See also id. at para. 16. But see Miletic Reply,
19 - Prosecution
Response, para. 17.
20 - The
Trial Chamber notes that many of the arguments in the
Motions concern the merits of the arguments to be made
on appeal, as opposed to the merit of the request to
have that appeal heard on an interlocutory basis. As
another Trial Chamber has recently held, a “request
for certification is not concerned with whether a decision
was correctly reasoned or not. That is a matter for
appeal, be it an interlocutory appeal or one after
final Judgement has been rendered. Rule 73(B) concerns
the fulfilment of two criteria, after which the Trial
Chamber may decide to certify an interlocutory appeal.
If it does, then the reasoning of the appealed decision
immediately will be assessed by the Appeals Chamber.
If it does not, the reasoning may be challenged by
the Prosecution after the rendering of the final Judgement,
and the Appeals Chamber, at that time, will assess
the reasoning of the decision.” Prosecutor v. Milosevic,
Case No. IT-02-54-T, Decision on Prosecution Motion
for Certification of Trial Chamber Decision on Prosecution
Motion for Voir Dire Proceeding, 20 June 2005, para.
4. For these reasons, only the arguments relevant to
the two criteria in Rule 73(B) have been considered
in reaching this decision.