"Decision on Defence to Sever Defendants and Counts"

15 March 1999
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Introduction

At the pre-trial stage of the Simic et al. case, on 11 February 1999, Counsel for Stevan Todorovic, pursuant to Sub-rule 82(B) of the Rules of Procedure and Evidence, filed a Motion requesting that his trial be severed from that of the other accused. The Motion propounded three grounds which would make a joint trial unfair to the defendant Todorovic: (1) the co-accused might testify and incriminate him, (2) should the co-accused decide not to testify, their pre-trial statements incriminating Mr. Todorovic might be entered into evidence whereas he would not have the opportunity to cross-examine, and (3) should Mr. Todorovic decide to testify on some, but not all, counts negative inferences might be drawn against him. The Defence submitted that "mutually antagonistic defences" in this case would constitute a conflict of interests possibly causing serious prejudice to Mr. Todorovic.

The Decision

Since all the crimes alleged took place in the same region and during the same time-period, the Trial Chamber considered that they were committed "in the course of the same transaction" as required by Rule 48 of the Rules of Procedure and Evidence regarding joinder of accused. The Trial Chamber further considered Sub-rule 82(B) which allows a Trial Chamber to sever defendants in a joint trial "in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice."

Agreeing with the Prosecution, the Trial Chamber considered that the Trial Chamber’s professional Judges are able to deal fairly and effectively with cases involving conflicting defences. The possibility of such defences, consequently, does not constitute a conflict of interests possibly causing serious prejudice. Indeed, such a defence would also be possible in the case of separate trials.

As to the accused’s second point, the Trial Chamber found that the question of evidence must be evaluated at trial. It also dismissed the third argument which it did not consider relevant to the issue at hand.

Lastly, considering that evidence would not be duplicated and that hardship caused to witnesses would be kept to a minimum, the Trial Chamber found that a joint trial best serves the interests of justice and dismissed the Defence Motion.

25 March 1999
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Introduction

The present Decision was rendered in response to a pre-trial Prosecution Motion pursuant to Rule 73 and Sub-rules 94(A) and (B) of the Rules of Procedure and Evidence filed on 16 December 1998. The Motion requested that the Trial Chamber take judicial notice of the international character of the armed conflict in Bosnia and Herzegovina from 6 March or, at the latest 6 April, and continuing until 19 May 1992 at the earliest. The Trial Chamber noted that the request is linked to the application of the counts in the indictment alleging grave breaches of the 1949 Geneva Conventions. According to Tribunal jurisprudence, the grave breaches regime requires inter alia  proof that the armed conflict at stake has an international character.

The Submissions of the Parties

The Prosecution contended that pursuant to Sub-rule 94(A), judicial notice could be taken of the international nature of the conflict since in view of unanimous Tribunal jurisprudence it was a (historical) fact of common knowledge, at least within the Tribunal. The Prosecution further submitted that the international character of the conflict has been determined in other proceedings before the Tribunal. It argued that the issue is an adjudicated fact insofar as it is not under appeal in the Judgement and Opinion of 7 May 1997 in the Tadic case (IT-94-1-T) and the Judgement of 16 November 1998 in the Delalic et al. case (IT-96-21-T).

As to the latter point, however, the Defence argued that the character of the conflict would (probably) be under appeal in both judgements and, therefore, contested the Prosecution’s conclusion that, pursuant to Sub-rule 94(B), judicial notice may be taken of the issue. The Defence further contended that the character of the conflict is controversial and submitted that the issue of judicial notice should be approached with great caution. In its view, judicial notice may only be taken of notorious facts which cannot be reasonably disputed, "or capable of immediate and accurate demonstration by resorting to readily accessible sources of indispensable accuracy".

Furthermore, the Defence submitted that judicial notice would jeopardise the accused’s right to a fair trial and to examine or have examined the Prosecutor’s evidence, pursuant to Article 21 of the Statute, and that the accused is entitled to an independent determination of the facts. Finally, the Defence argued that the legal conclusion drawn from the characterisation of the conflict, which is based on an interpretation of facts, is not appropriate for judicial notice.

The Trial Chamber held that in the interest of judicial economy, pursuant to Rule 94, judicial notice may be taken of "facts not subject to reasonable dispute" but that this should be balanced against an accused’s right to a fair trial.

In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction  of 2 October 1995 in the Tadic   case (IT-94-1-AR72), the Appeals Chamber held that, in each case, a Trial Chamber must determine the nature of the armed conflict at stake on the basis of the specific evidence before it. Other Trial Chambers’ findings in this respect, therefore, apply only inter partes  and the parties to each case should be given the opportunity to argue the factual nature and consequent characterisation of the conflict at issue. The Trial Chamber further considered that Rule 94 allows for judicial notice of facts only and not legal consequences inferred from them. It therefore dismissed the Motion.

However, pursuant to Sub-rule 94(A), the Trial Chamber did proprio motu take judicial notice of two facts of common knowledge underlying the Prosecution’s Motion: Bosnia and Herzegovina’s proclamation of independence from the Socialist Federal Republic of Yugoslavia on 6 March 1992, and the recognition of the new State by the European Community on 6 April 1992 and by the United States on 7 April 1992.

25 March 1999
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Introduction

At the pre-trial stage of the Simic et al. case, on 16 December 1998, the Prosecution filed a preliminary Motion pursuant to Rule 72 of the Rules of Procedure and Evidence. It argued that Counsel for Simo Zaric, Borislav Pisarevic, had personal knowledge of certain facts which will be addressed at trial and which would make him a compellable Defence or Prosecution witness. According to the Prosecution, this would result in a conflict of interest under Articles 9 and 16 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125, 12 June 1997) (hereinafter "the Code of Conduct") and therefore requested that Mr.. Pisarevic be disqualified from appearing as Counsel for Mr. Zaric.

The Defence Submission

Arguing that the Prosecution does not have the right to make a claim for disqualification of Counsel, the Defence contested the lawfulness of the Motion and argued for its dismissal. It further contended that no conflict of interest existed and claimed that none of the accused will call Mr. Pisarevic. It also denied most of the Prosecutor’s factual allegations.

Article 9 of the Code of Conduct, to which all counsel are bound pursuant to Sub-rule 44(B) of the Rules of Procedure and Evidence, provides that counsel must act in the best interest of his client and avoid any conflict of interest in the course of his representation.

The Trial Chamber determined the meaning of a conflict of interest between an attorney and his client. It found that such a conflict arises "... in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice." The Trial Chamber noted that the issue of a conflict of interest between attorney and client is regulated in most national legal systems and that such a conflict affects the fairness of the trial which is guaranteed by Articles 20 and 21 of the Statute.

In the present case, the Trial Chamber considered the Prosecutor’s attempt to illustrate the possibility that Mr. Pisarevic might be called as a witness, even though the Defence contested most of the facts alleged. It further considered the confidence expressed in Mr. Pisarevic by the accused and the statement by the other accused that they would not call him as a witness.

The Trial Chamber considered Article 16 of the Code of Conduct according to which an attorney is prohibited to appear in a trial in which he or she is likely to be called as a witness. An exception to this provision is the case where the testimony relates to uncontested issues, which in the Trial Chamber’s view is not applicable, or where this would result in substantial hardship for the client.

In conclusion, the Trial Chamber found a potential for a conflict of interest arising at trial between Mr. Pisarevic and his client. The Trial Chamber disposed of the matter in accordance with the mechanism provided in paragraph 9(5)(b)(ii) of the Code of Conduct. Accordingly, within seven days, Mr. Pisarevic must obtain and transmit to the Trial Chamber Mr. Zaric’s full and informed written consent to his continued representation. In the view of the Trial Chamber, this solution is compatible with Mr. Pisarevic’s continuing discharge of his other obligations under the Code of Conduct and also respects Mr. Zaric’s right to counsel of his own choice pursuant to Article 21(4)(b) of the Statute.1

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1. Mr. Zaric’s written consent was filed with the Registry on 13 April 1999.