Case No. IT-04-74-PT

Before:
Judge Daqun Liu, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr. Hans Holthuis

Decision of:
1 July 2005

The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Michael Karnavas for the accused Mr. Jadranko Prlic
Mr. Berislav Zivkovic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic for the accused Mr. Slobodan Praljak
Ms. Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr. Tomislav Jonjic for the accused Mr. Valentin Coric
Mr. Fahrundin Ibrisimovic for the accused Mr. Berislav Pusic

1. Trial Chamber I (“Chamber”) of the International Tribunal (“Tribunal”) is seised of three preliminary motions filed pursuant to Rule 72(A) of the Rules of Procedure and Evidence (“Rules”) seeking separate trials under Rule 82 or to sever counts in the Indictment under Rule 49 of the Rules. The motions were filed by Berislav Pusic¹ and Valentin Coric² on 14 December 2004 and by Jadranko Prlic on 15 December 2004 (“Applicants”).³ The Prosecution filed its consolidated “Prosecutor’s Response to Motions Seeking Separate Trials” on 28 January 2005 (“Response”). On 4 February 2005, the Defence for the accused Prlic and Coric filed a reply.⁴

2. Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic (“Accused”) are currently charged in a joint indictment with crimes alleged to have been committed on the territory of Bosnia and Herzegovina between 18 November 1991 and April 1994. The Indictment alleges that each of the Accused is directly responsible for those crimes pursuant to Article 7(1) of the Statute 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 (“Statute” and “Tribunal”, respectively) and as superior or commander pursuant to Article 7(3) of the Statute. The indictment was confirmed by Judge Jean-Claude Antonetti on 4 March 2004 (“Indictment”). On 5 April 2004, the six Accused surrendered to the Tribunal and were provisionally released by virtue of the Chamber’s Decision dated 30 July 2004.

3. The Chamber will consider the Applicants’ arguments for separate trials and severance of counts in turn. It will first examine as a preliminary matter Prlic’s request that the Chamber determines proprio motu that the indictment’s confirmation be reviewed in light of the amended Rule 28(A) and that the appropriate Accused in this case be separated from the others and subsequently be referred under Rule 11bis to the appropriate national Chamber.⁵

4. The Prlic Defence challenges the jurisdiction of the Trial Chamber on the grounds that Rule 28(A) was amended in 2004 in order to only permit the review of new indictments in respect of the most senior alleged leaders. It submits that the failure to make a determination under Rule 28(A) requires to sever those accused who do not meet the criteria of this Rule from the Indictment and to concurrently determine whether their cases should be referred under Rule 11 bis.⁶ The Prosecution responds that there is no basis for an accused to invoke Rule 28 (A) or Rule 11bis since both rules are entirely matters of the Tribunal’s administration and do not create rights for the Accused.⁷ Regarding Rule 11bis, the Prosecution argues that the Accused are plainly within the category of “the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal”.⁸ In its reply, the Prlic Defence maintains that a determination under Rules 28(A) and 11bis must be made.⁹

5. The Indictment in this case was confirmed on 11 March 2004. On 6 April 2004, the Plenary of judges amended Rule 28(A) in order to entrust the Bureau with the determination of whether an indictment, prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of this Tribunal and therefore may be reviewed for confirmation. Rule 6 (D) provides that an amendment to a rule “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case”. The Chamber observes first that the Defence does not establish how the rights of the Accused are prejudiced by the amendment made to Rule 28(A). Secondly, the Chamber notes that for indictments confirmed before the amended Rule 28(A) came into force and which do not concentrate on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of this Tribunal, referral may be considered under Rule 11bis.

6. Rule 11bis specifies that a Referral Bench appointed by the President of the Tribunal may order the referral of an indictment to another court proprio motu or at the request of the Prosecutor. Rule 11bis does not give the Defence a standing to make a request for referral. The suggestion that this Trial Chamber could refer the case of some accused is erroneous. Referral decisions are exclusively of the competence of the Referral Bench appointed by the President of the Tribunal. The Chamber also notes that the Prlic Defence is making a request for referral not only for the accused Prlic but for all Accused. The Chamber deems that such a request is not appropriately brought here.

7. The Defence’s requests for review of the Indictment under Rule 28(A) and for referral under Rule 11bis are denied.

8. The provisions relevant to the Applicants’ submissions concerning separation of trial are Rule 82, in particular sub-rule (B), and Rule 48 read in light of the definition of “transaction” in Rule 2 of the Rules. These provisions read as follows :

Rule 2
Definitions

Transaction: 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;

Rule 48
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.

Rule 82
Joint and Separate Trials

(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.

9. While Rule 48 provides a general test for joinder of trials, instructing the Prosecutor under what circumstances several accused may be indicted together, Rule 82 (B) serves to alleviate any subsequent prejudicial effect of the application of Rule 48, by way of separation of trials. The issue to be addressed by this Chamber is whether in the present case a separation of trials should be granted under Rule 82 “in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice”. The Chamber exercises its discretion to order a separation of trials if it finds that “extraordinary” circumstances in the present case make a joint trial prejudicial to the Accused or to the interests of justice and are not counterbalanced by the benefits of a joint trial.¹⁰

10. (a) Lack of factual description and differentiation of the acts of the Accused – Joint criminal enterprise. The Applicants submit that the connection among the Accused has not been sufficiently established in order to charge the Accused through the theory of joint criminal enterprise (“JCE”).¹¹ More specifically, the Pusic Defence stresses that the Indictment charges the Accused without a precise factual description¹² nor an individualisation of the acts and criminal responsibility,¹³ which makes it impossible to prepare an individual defence.¹⁴ It further submits that Pusic has not been charged concerning two particular events mentioned in the Indictment.¹⁵ The Coric Defence submits that the Indictment against the co-accused in this case does not indicate “in what sense there is a common scheme, strategy or plan, when that common scheme, strategy or plan was created, who participated in its creation hence whether the Application participated in its creation and implementation and in what way.”¹⁶ The Coric Defence adds that the six co-accused in this case are charged with participation to a common plan as member of the “Croatian Democratic Union of Bosnia and Herzegovina (HDZ BiH) and the HVO” so any member of such organisation could be a co-accused.¹⁷ The Prlic Defence argues that neither the same transaction, nor his “significant ” contribution to the JCE have been sufficiently established in order to charge the Accused through JCE.¹⁸

11. The Prosecution submits that each Accused is charged in connection with the “same transaction”¹⁹ and that the fact that they played different roles, participated in different hierarchies or had varying degrees of communication with each other does not exclude their participation in the same transaction or JCE, while the characterization of their exact roles, responsibilities and involvement of the Accused are to be resolved at trial.²⁰

12. The Chamber observes first that this decision addresses the issue of separation of trials and that arguments alleging defects in the form of the Indictment are dealt with in a separate decision. The Accused are all charged with crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war alleged to have been committed against Bosnian Muslims in and around the municipalities of Prozor, Gornji Vakuf, Jablanica, Mostar, Ljubuski, Stolac, Capljina and Vares from 18 November 1991 through April 1994 for their alleged participation in a Joint Criminal Enterprise (“JCE”) to politically and militarily subjugate, permanently remove and ethnically cleanse Bosnian Muslims and other non-Croats who lived in areas on the territory of the Republic of Bosnia and Herzegovina which were claimed to be part of the Croatian Community (and later Republic) of Herceg -Bosna, and to join these areas as part of a "Greater Croatia," by force, fear or threat of force, persecution, imprisonment and detention, forcible transfer and deportation, appropriation and destruction of property and other means, which constituted or involved the commission of crimes which are punishable under Articles 2, 3, and 5 of the Tribunal Statute. A perusal of the Indictment shows that the Accused have not been improperly jointly charged by the Prosecution in accordance with Rule 48, since the acts alleged to have been committed by the Accused are part of the same alleged transaction within the meaning of Rule 2 of the Rules. The means and ways by which they participated in the alleged JCE are matters of evidence to be established at trial.

13. No convincing reason has been presented to the Chamber, nor can the Chamber itself see any grounds establishing that the separation of trial is necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.

14. (b) Conflict of interests. The Pusic and Coric Defence submit that a joint trial based on the Indictment as it stands would raise a conflict of interests that might cause serious prejudice to them.²¹ The Coric Defence stresses that the presentation of evidence against one accused, even when this evidence does not concern the other Accused, places a “strain on the defence”.²² The Prlic Defence submits that there is a real danger of presentation of antagonistic defences, causing serious prejudice to him.²³ The Pusic Defence contends that there is a conflict of interests between the Accused because of the vague form of the indictment.²⁴

15. The Prosecution submits that the Defence have not demonstrated any serious prejudice or risk of antagonistic defences raised at the joint trial.²⁵ It further submits that there is no risk of adverse inference, since the evidence will be heard by professional judges²⁶ and because the vast majority of the evidence is applicable to all six Accused.²⁷

16. In its reply, the Coric Defence restates that the presentation of evidence against other Accused in a situation when it does not concern one of the Accused is an unnecessary burden for the Defence and might cause serious prejudice to an accused.²⁸ He also insists that “due regard for the protection of witnesses cannot have precedence over rights of the accused”.²⁹ In its reply, the Prlic Defence also reiterates that there is a real danger of the emergence of antagonistic defences.³⁰

17. The Pusic Defence’s complaint that a conflict of interests may exist among the Accused because of the vague form of the indictment is inappropriately raised here. The first issue to be addressed is whether evidence, which may be presented against one accused and not against the others, may create a risk of strain on the Defence of the other accused. This concern is especially addressed in jury systems where there can exist special fear that it would be difficult to distinguish the evidence relating to the respective accused. As has been consistently held, the Chambers of this International Tribunal are composed of professional Judges who confine the evidence to the defendant to whom it is relevant and consequently, assess the evidence in a joint trial in a fair and just manner.³¹

18. With respect to the risk of antagonistic defences raised by the Prlic Defence, this Chamber endorses the finding of other Trial Chambers of this Tribunal that, while considering a motion for separation of trials, the possibility of “mutually antagonistic defences does not constitute a conflict of interests capable of causing serious prejudice and that, in any case, separate trials would not eliminate the possibility of an accused testifying against another accused”.³²

19. The Chamber is aware that the strain might well be greater for the Defence with a joint trial. Nevertheless, the Defence has not shown, nor can the Trial Chamber itself see any element that the additional burden on the Defence amounts to unfairness to the Accused or would substantially outweigh the benefits of a joint trial.

20. The Trial Chamber finds that the submissions of the Applicants on this point provide insufficient basis for concluding that the separation of trials would create a conflict of interests that might cause serious prejudice to the Accused.

21. (c) Interests of justice – undue delay. The Applicants submit that it is in the interests of justice to order a separation of trials.³³ The Coric Defence and the Prlic Defence submit that a large trial involving six accused might lead to undue delay.³⁴ In particular the Prlic Defence stresses that a joint trial “would constitute an unreasonable time and expenditure burden”.³⁵ The Coric Defence argues that in a joint trial, the Prosecution may present evidence against a co-accused which does not necessarily concern all co-accused, and which renders the trial longer, more complex and subject to delays in case a co-accused is ill or unable to follow the proceedings for any other reasons.³⁶ According to the Coric Defence, the advantage for witnesses not to have to repeat their testimonies should not take precedence over the consideration that the trial against one defendant is more expeditious.³⁷

22. The Prosecution submits that there is no risk of delay due to joint trial³⁸ but on the contrary, the joint trial is a chance to speed up the entire trial process. The Prosecution further avers that it is in the interests of justice and judicial economy to favour a joint trial, for it would enable a consistent verdict, give a full picture and overall assessment of all the evidence and have a single trial chamber hearing all the evidence as opposed to several. It would also protect victims and witnesses from repetitive appearances, trauma and hardship.³⁹

23. The Chamber deems that it is in the interests of justice to favour joint trials.⁴⁰ Separate proceedings in this case would entail a substantial repetition of evidence and of repeated hardship to witnesses called to testify whereas a joint trial contributes to efficiency and judicial economy in the trial against the Accused charged with crimes allegedly committed within the same transaction.

24. The Chamber is of the opinion that a joint trial in this case would best serve the objective of Article 21(4) (c) of the Statute, which is trial without undue delay. While a joint trial seems to result in some delay, the fact is that in this case, the time required to try the six Accused jointly will be significantly shortened with a joint trial and avoids that some accused wait to be tried until after the trials of other accused is concluded. The Chamber emphasizes however that in the event the trial may be subject to delays, for instance in case a co-accused is ill or unable to follow the proceedings, the Chamber will reconsider this position in view of the prejudice that may arise.

25. In sum, even when considered jointly, the various disadvantages considered above do not outweigh the advantages of a joint trial nor affect the fairness of the trial. The Defence has not shown that separate trials would best serve the interests of justice in this case. The Chamber is satisfied that to grant the separate trials sought would be distinctly adverse to the interests of justice.

26. Rule 49 governs the issue of joinder of counts as follows:

Rule 49
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.

27. Although the Prlic Defence makes his request for severance of counts pursuant to Rule 49 of the Rules, the arguments raised in support of severance of counts are not appropriately brought under Rule 49 since they concern the issue of heads of responsibility, vagueness of the Indictment and admissibility of Rule 92bis statements.

28. (a) Heads of responsibility – Article 7 (1) and (3) of the Statute. The Prlic Defence requests that either counts alleging responsibility under Article 7(1) of the Statute or counts alleging responsibility under Article 7(3) of the Statute be severed on the grounds that the Appeal Judgement in the Blaskic case⁴¹ ruled that such counts must be pleaded separately and not concurrently as in this indictment.⁴² According to the Prlic Defence, the Blaskic Appeal Judgement has changed the practice of the Tribunal allowing alternative and cumulative charging pursuant to Articles 7(1) and 7(3) of the Statute.⁴³

29. The Prosecution submits that the practice of the Tribunal allowing alternative and cumulative charging pursuant to Articles 7(1) and 7(3) of the Statute has not been changed by the jurisprudence in the Blaskic Appeal Judgement.⁴⁴ It also contends that the arguments concerning pleading under Articles 7(1) and 7(3) go to the form of the Indictment.⁴⁵

30. In the Blaskic Appeal Judgement, the Appeals Chamber held that:

…in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.⁴⁶

31. The Prlic Defence confuses the issues of cumulative charging and cumulative conviction, two distinct issues governed by distinct sets of rules. The Appeals Chamber in the Blaskic case reiterates the position already held in the Delalic et al. case that the Prosecution is allowed to cumulatively charge an accused in an indictment, including under Article 7(1) and (3), and that improper cumulative convictions should be avoided.

32. The Chamber finds no merits to the Defence’s arguments that counts pleading both Article 7(1) and Article 7(3) of the Statute be severed.

33. (b) Vagueness of the Indictment regarding the functions and authority of the Accused. The Prlic Defence asserts that counts relating to periods in which he was not involved or had no authority or role must be severed as they are not pleaded with particularity.⁴⁷ The Prlic Defence submits that counts alleging participation through non-civilian functions which are not directly ascribed to Prlic should be “severed”.⁴⁸

34. Both arguments allege defects in the form of the Indictment and are not appropriately raised here.

35. (c) Admissibility of statements under Rule 92bis (A) and (C). The Prlic Defence contends that counts alleging co-participation through a joint criminal enterprise allegedly committed by now deceased persons should be struck because an indictment “ought not be allowed to plead allegations based on acts and out of court unsworn statements of deceased persons which would at trial not be admissible”.⁴⁹

36. Although the arguments of the Defence are not clear, the Chamber makes the following observation. There is no merit to the argument that the death of an alleged co-perpetrator in a JCE should prevent the prosecution and the trial of other participants to the JCE. The Defence has not identified the statements of deceased persons that cannot be admitted into evidence under Rule 92bis (C) nor analysed the content of those statements, if any, and given the reasons for their inadmissibility. The Defence has failed to establish that the charges against the Accused can only be proved through inadmissible evidence.

37. The request by the Prlic Defence for severance of counts is dismissed.

FOR THE FOREGOING REASONS,

PURSUANT TO Rule 72 of Procedure and Evidence,

HEREBY DENIES the Motions.

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

Dated this 1st Day of July 2005.
At The Hague,
The Netherlands.

__________________________
Judge Daqun Liu
Presiding

[Seal of the Tribunal]