"Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply"

9 March 2000
Judges Hunt [Presiding], Mumba and Pocar

The issue

The accused, Momir Talic and Radoslav Brdjanin, are jointly charged in the amended Indictment with a number of crimes alleged to have been committed in the Republika Srpska. The Indictment alleges that Brdjanin was the civilian arm of a plan for the ethnic cleansing to which Talic provided military muscle. Rule 48 of the Rules of Procedure and Evidence permits persons accused of the same or different crimes committed in the course of the same transaction to be jointly charged and tried. On 9 February 2000, Talic filed a motion seeking a separate trial.

Talic submitted that: (1) as a military man, he was subject to the military hierarchy; (2) the allegations in the Indictment as to his association with Brdjanin were incorrect; and (3) a joint trial would cause serious prejudice to him because (i) decisions would be made upon motions which affected both accused without an opportunity for him to make submissions, (ii) since Brdjanin has a personal interest in the matter, he could give evidence against him and (iii) the possible guilt of Brdjanin may automatically be ascribed to him by the Trial Chamber and the Trial Chamber would not be able to evaluate the responsibility of each accused individually.

The decision

The Trial Chamber dismissed the application stating that the joint trial did not cause any conflict of interests or serious prejudice to either accused and observed, instead, that a joint trial was important to ensure that the whole picture be exposed by the trial and that the verdicts be consistent.

The reasoning

The Trial Chamber accepted as relevant to the issues to be determined: (1) the fact that the counts against the two accused relate in substance to the same campaign of destruction, the same people, the same period of time and the same area; (2) it is not necessary for all the facts to be identical1; (3) it is in the interests of justice, of which judicial economy in the administration of justice under the Tribunal’s Statute is an element, that accused charged with offences arising from the same course of conduct should be tried together2; and (4) the fact that one accused was a member of the military forces whereas his co-accused was a member of the civilian authorities does not of itself give rise to a conflict of interests3.

The Trial Chamber held that the application had to be determined upon the allegations made in the Indictment and not upon what may or may not be in the supporting material served with the Indictment. It is both normal and necessary procedure in relation to any motion to wait before a decision is reached until the opportunity has been given for all the respondents to the motion to file their responses.

The Trial Chamber pointed out that a joint trial does not require a joint defence and necessarily envisages the case where each accused may seek to blame the other. The Trial Chamber would be very alive to the "personal interest" which each accused has in such a case. Any prejudice which may flow to either accused from the loss of the "right" asserted by Talic to be tried without incriminating evidence being given against him by his co-accused is not ordinarily the type of serious prejudice to which Rule 82(C) is directed4. The Trial Chamber recognised that there could possibly exist a case in which the circumstances of the conflict between the two accused were such as to render unfair a joint trial against one of them but that the circumstances would have to be extraordinary. It was not satisfied that the present was such a case.

The Trial Chamber considered that it would be "contrary to the interests of justice were only half of the whole picture to be exposed in each trial if separate trials were ordered"5. It pointed out that there is a fundamental and essential public interest in ensuring consistency in verdicts. "Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts. The only sure way of achieving such consistency is to have both accused tried before the same Trial Chamber and on the same evidence - unless (as Rule 82(B) requires) there is a conflict of interests which might cause serious prejudice to an accused, or separate trials are otherwise necessary to protect the interests of justice. Neither matter had been established by Talic in this case"6.

The Trial Chamber also rejected Talic’s suggestion that he may automatically be found guilty if Brdjanin is found guilty and that the responsibility of each of them might not be evaluated individually. The Chamber expressed surprise at such suggestions. However, the Trial Chamber accepted Talic’s argument that the prospect that his trial may be delayed if separate trials were ordered should not be taken into account against him if he is prepared to accept the delay in order to achieve a fair trial. However, the Chamber did not accept that a joint trial would be unfair to him7.

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1. Paras. 20-21. See Rule 49 of the Rules of Procedure and Evidence and The Prosecutor v. Kovacevic, Decision Stating Reasons for Appeals Chamber’s Order of 28 May 1998, 2 July 1998, Separate opinion of Judge Shahabuddeen, p. 3.
2. See The Prosecutor v. Kordic and Cerkez, Decision on accused Mario Cerkez’s Application for Separate Trial, 7 December 1998, paras. 10-11.
3. Para. 20. Concerning a possible conflict of interest within the meaning of Rule 82(B), see also The Prosecutor v. Simic et al., Decision on Motion for Separate Trial for Simo Zaric, 3 February 2000. In addition, the fact that the two accused played different roles in the hierarchy of command does not matter (para. 23).
4. Para. 29.
5. Para. 30.
6. Para. 31.
7. Para. 33.