"Decision on Joinder of Trials"

9 February 2000
Trial Chamber (Judges Mumba [Presiding], Hunt and Pocar)

The Issue

The question was whether, several accused who were originally part of the same indictment but who had later been given individual indictment, could still be regarded as co-accused and if not, whether the interests of justice nevertheless required that they be tried together.

The Decision

The Trial Chamber declared that they could no longer be considered co-accused and that, in the present circumstances, the interests of justice would not be served by trying them together.

The Reasoning

The three accused Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were charged together in the original Indictment along with other accused1. The Indictment was subsequently amended three times2. The third amended Indictment against Kunarac and Kovac was confirmed on 1 December 19993. The charges against the remaining five accused, including Vukovic, were redacted and merged into a separate amended Indictment ("separate Indictment"), which was confirmed on 7 October 1999. Following his arrest, Vukovic pleaded to counts of the separate Indictment on 29 December 1999.

The Trial Chamber held that the third amended Indictment and the separate Indictment have replaced the original one. Consequently, the applicant, Zoran Vukovic, is no longer co-accused with the two co-accused Kunarac and Kovac. Thus, his application can only be regarded as one to be joined in the third amended Indictment4.

The Trial Chamber stated that another delay could not be allowed and that the interests of justice would not be served by a joinder of the accused. The Trial Chamber based its finding on the negative effect the postponement of trial would have on the two co-accused5. In addition, postponing this trial would have a delaying domino effect on other awaiting trials: "The Applicant’s right to a trial without undue delay under Article 21(4)(c) of the Statute of the Tribunal has to be assessed in light of the same right of others"6.

Finally, the Trial Chamber held that the protection of victims and witnesses would not necessarily be served by a joinder of accused7. The Trial Chamber balanced the inconvenience of having to come to the Tribunal and testify twice with the need for the victims to know when they will be required to testify and not be subjected to repeated postponements of trials and also considered the fact that four additional indictees still remain at large. It decided that the "dilemma of recalling witnesses to testify in various cases" was an unfortunate consequence of the nature of the Tribunal which had to give way, in the present instance, to the need not to further delay the proceedings. Consequently, the Trial Chamber dismissed the Applicant’s request.

However, the Trial Chamber further declared that "should the Applicant determine that he will have prepared his defence and that he will be ready for trial on 20 March 2000, the same date scheduled for the trial of Dragoljub Kunarac and Radomir Kovac, he may approach the Trial Chamber again for relief"8. Following this statement, the Trial Chamber was seised of a motion by the accused Vukovic indicating that he will be ready for trial on 20 March 2000 and applying for a joinder of his trial to that of Kunarac and Kovac9. Having found that the crimes of the accused were part of the same transaction and that the allegations leveled against the two co-accused significantly overlapped with those against the Appellant, the Trial Chamber concluded that a joint trial was in the interests of judicial economy and granted the Motion10.

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1. The original Indictment was confirmed on 26 June 1996.
2. Respectively on 19 August 1998, on 3 September 1999 and on 1 December 1999.
3. Kunarac surrendered voluntarily on 4 March 1998 and Kovac was arrested on 2 August 1999.
4. Rule 48 "Joinder of Accused".
5. Para. 10: "The Trial Chamber, the Prosecutor and the two co-accused have gone past the point of preparation for the trial where any further postponement would in the interests of justice." Their trial was originally scheduled to start on 1 February 2000, but in order to give Kovac the time to prepare his defence properly, the Trial Chamber postponed the start of the trial until 20 March 2000.
6. Para. 11.
7. Article 22 of the Statute "Protection of victims and witnesses".
8. Para. 13.
9. Defence of the Accused Mr. Zoran Vukovic Approves for Joint Trial to Start on 20 March 2000, 10 February 2000. It must also be noted that in his Motion, the Applicant waived his right to preliminary motions on the indictment.
10. The Prosecutor v. Kunarac and Kovac and Vukovic, Decision on Joinder of Trials, 15 February 2000.