The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-AR72.2
"Decision on Request to Appeal"
16 May 2000
Bench of the Appeals Chamber (Judges Shahabuddeen [Presiding], Vohrah and Nieto-Navia)
Sub-rule 82(B) of the Rules of Procedure and Evidence - Permissive rather than obligatory - Power to determine the matter of separate trials.
Sub-rule 82(B) of the Rules of Procedure and Evidence is permissive rather than obligatory, thus leaving to the relevant Trial Chamber the power to determine the matter of separate trials in the circumstances of the case before it.
On 9 March 2000, Trial Chamber II rendered a Decision in which it rejected Momir Talics preliminary motion seeking the separation of his trial from that of Radoslav Brdjanin. Trial Chamber II stated that "[t]he Trial Chamber recognises that there could possibly exist a case in which the circumstances of the conflict between the two accused are such as to render unfair a joint trial against one of them, but the circumstances would have to be extraordinary. It is not satisfied that the present is such a case" (para. 29). Trial Chamber II also insisted that "trials in this Tribunal are conducted by professional judges who are necessarily capable of determining the guilt of each accused individually and in accordance with their obligations under the Statute of the Tribunal to ensure that the rights of each accused are respected" (para. 32).
On 17 March 2000, pursuant to Sub-rules 72(B)(ii)1 and 72(C)2 of the Rules of Procedure and Evidence, the accused filed a Request to appeal against this Decision and challenged the following grounds on which the Trial Chamber rejected his motion:
-the Prosecution allegations clearly show that a single campaign was being waged by one people against another people at the same time and in the same region. And so satisfy the requirements of Rule 48 of the Rules of Procedure and Evidence3;
-there is no risk of different deadlines in each case (his and Mr. Brdjanins) or of a conflict of interests arising from a conflict between the Defence which prejudices Mr. Talic;
-the joint trial is in the interests of justice because "a public and essential public interest is 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 [...]".
The accused alleged that "[n]one of the aforesaid arguments put forward by the Trial Chamber is relevant", which the Bench interpreted as meaning that Momir Talics grounds of appeal relate to the three aforementioned arguments.
On 21 March 2000, the Prosecution opposed the Request on the ground that it did not show any good cause.
The Bench of the Appeals Chamber stated in respect of the admissibility of the appeal that the accused had filed the Request eight days after the filing date of the Decision, thus not falling within the time-limit set in Sub-rule 72(C) of the Rules of Procedure and Evidence. It nonetheless considered that the motion was valid on the ground that the seventh day from the filing of the Decision when the Request was due was an official United Nations holiday4.
The Bench further deemed that Sub-rule 72(B)(ii) provides that Decisions on preliminary motions are without interlocutory appeal save (jurisdictional cases apart) "where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber". Such leave is therefore required in order to appeal a Decision on a preliminary motion seeking the severance of counts joined in one indictment under Rule 495 or separate trials under Sub-rule 82(B)6 of the Rules of Procedure and Evidence.
The Bench of the Appeals Chamber examined the three grounds of the Request and found that none showed good cause:
The Bench held that it was open to the Trial Chamber to find that the criteria prescribed by Rule 48 of the Rules of Procedure and Evidence for Momir Talics and Radoslav Brdjanins joinder were satisfied. The Bench stressed that the Request argues that the Decision changed the meaning of the text of the amended indictment "which lead[s] to the two accused being classed together, sometimes contrary to the very text of the indictment which confers upon them distinct roles". The Bench also ruled that the Decision had not purported to make any finding as to the substance of the amended indictment when it described its content. Consequently, the Bench found that no basis had been shown for suggesting any error on the part of the Trial Chamber in reaching its Decision.
The Bench also stated that the Trial Chamber exercised its discretionary power in deciding the different deadlines and on any possible conflict of interests7, and that its Decision "should not be upset in the absence of compelling reasons".
The Bench considered that in respect of the scheduling order of 27 March 2000 the Trial Chamber sought to facilitate Momir Talic in filing a proper response and did not intend to prejudice him in any way.
The Bench concluded that, in the circumstances, no ground had been shown for suggesting any error on the part of the Trial Chamber in reaching its Decision.
The Bench again deemed that it was open to the Trial Chamber to decide whether a joint trial would be in the interests of justice8 and noted in this respect that Sub-rule 82(B) of the Rules of Procedure and Evidence provides that a Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers this necessary to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice (emphasis added).
Most importantly, the Bench characterised Sub-rule 82(B) of the Rules of Procedure and Evidence as "permissive rather than obligatory" thus leaving to the relevant Trial Chamber the power to determine the matter of separate trials in the circumstances of the case before it.
Hence, the Bench again held that, in the circumstances, no ground had been shown for suggesting any error on the part of the Trial Chamber in reaching its Decision.
The Bench found that the appellant had failed to establish the existence of good cause within the meaning of Sub-rule 72(B)(ii) and consequently rejected the Request.
1. "Decisions on preliminary motions are without interlocutory appeal save [ ] in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber".
2. "Appeals under Sub-rule 72(B)(i) shall be filed within fifteen days and applications for leave to appeal under Sub-rule 72(B)(ii) shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless
(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision".
3. "Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried".
4. Information Circular ICTY/IC/2000/02, 11 January 2000, indicates that 16 March is the Muslim celebration of Eid Al-Adha.
5. "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".
6. "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".
7. On the need to show a conflict of interests, see The Prosecutor v. Kupreskic et al., Case No. IT-95-16, Trial Chamber II, Decision on Defence Motions for separate Trials, 15 May 1998, in which the Trial Chamber considered "that the Defence have failed to show that a conflict of interest might arise in the course of a joint trial which could seriously prejudice either of the three accused subject of the Motions, or that the interests of justice would be otherwise threatened by a joint trial".
8. On the assumption that trials can be joined in order to best serve the interests of justice, see The Prosecutor v. Kunarac and Kovac, Case No. IT-96-23-PT, Trial Chamber II, Decision on joinder of trials, 9 February 2000, (Judicial Supplement No. 12); The Prosecutor v. Kvocka, Kos, Radic, Zigic and Prcac, Cases No. IT-98-30-T and IT-95-4-PT, Trial Chamber I, Decision on Prosecution motion to join trials, 14 April 2000 (Judicial Supplement No. 14).