"Decision on Prosecution's Motion for Joinder"

13 December 2001
Trial Chamber III (Judges Richard May [Presiding], Patrick Robinson and O-Gon Kwon)

Procedural Background

On 27 November 2001, the Office of the Prosecutor filed a Motion for joinder pursuant to Rule 49 of the Rules of Procedure and Evidence1 in which it sought to join three Indictments against Slobodan Milosevic relating to alleged serious violations of international humanitarian law in Kosovo, Croatia and Bosnia & Herzegovina. The Prosecution submitted that the Trial Chamber should adopt a wide interpretation of the term "transaction" in Rule 49 of the Rules. It also submitted that in the instant case the "transaction" connecting the three Indictments is the accused's plan to create a "Greater Serbia" encompassing Kosovo and the areas of Croatia and Bosnia & Herzegovina with a substantial Serb population. It concluded that the crimes charged against Slobodan Milosevic "fulfill the 'same transaction' requirement of Rule 49".

The amici curiæ responded on 10 December 2001.

On 11 December 2001, the Trial Chamber heard both parties and the amici curiæ. The Trial Chamber gave an oral decision allowing the Motion to the extent that the Croatia and Bosnia & Herzegovina Indictments would be joined together and denying it to the extent that the Kosovo Indictment would be tried separately.

The Reasoning

The Trial Chamber first noted that Rule 2(A)2 defines the notion of transaction and that "the scope of Rule 49 and the definition of 'transaction' have not been the subject of rulings by either the Appeals Chamber or Trial Chambers" of the Tribunal. It referred to the Separate Opinion of Judge Shahabuddeen appended to the Decision Stating Reasons for Appeals Chamber's Order of 29 May 1998 rendered by the Appeals Chamber on 2 July 1998 in The Prosecutor v. Milan Kovacevic3 and reviewed the case-law of the International Criminal Tribunal for Rwanda4 as well as civil and common law jurisdictions such as the United States of America and England. It expressed the view that "the essence of the test is to determine whether there were a series of acts committed which together formed the same transaction, i.e. part of a common scheme, strategy or plan."5 The Trial Chamber emphasised that "[t]here is no power to join unconnected acts on the ground that they form part of the same plan" which "must be such that the counts represent interrelated parts of a particular criminal episode." It concluded that "[i]f there was no such series of acts and no such plan, any application for joinder must fail" and that "[w]here there is no similarity in time and in place, the conclusion that the counts represent interrelated parts of a particular criminal episode will be more difficult, albeit not impossible, to draw." The Trial Chamber also underscored that, for purposes of joinder, it must act on the factual allegations contained in the Indictments6.

Test to be applied

The Trial Chamber stressed that Rule 49 of the Rules on joinder "must be interpreted in light of the entitlement of the accused […] to a fair hearing" under Article 21(2) of the Statute7 which is "a distinct element of Rule 49". It also considered that "[j]oinder should not be granted where the interests of justice would be prejudiced - those interests relate not only to the accused but also to the interests of the Prosecution and the international community in the trial of any accused charged with serious violations of international humanitarian law." Lastly, the Trial Chamber took into account "judicial economy, e.g. the avoidance of duplication of evidence and the avoidance of hardship to witnesses."8

The Kosovo Indictment

The Trial Chamber noted that "the conflict in Kosovo occurred in a province" of the Federal Republic of Yugoslavia and that "no mention of a 'Greater Serbia' plan appears in the Kosovo Indictment". It therefore considered that the alleged nexus was "too nebulous to point to the existence of 'a common scheme, strategy or plan' required for the 'same transaction' under Rule 49." The Trial Chamber added that "there is a distinction in time and place between the Kosovo and the other Indictments and also a distinction in the way in which the accused is alleged to have acted." It concluded that the acts alleged in the three Indictments did not "form the same transaction for the purposes of Rule 49."

The Croatia and Bosnia & Herzegovina Indictments

However, the Trial Chamber considered that the Croatia and Bosnia & Herzegovina "Indictments exhibit a close proximity in time, type of conflict and responsibility of the accused" and found that "the requirements for joinder under Rule 49 are satisfied." It held that "[t]he two Indictments contain allegations of a series of acts which together formed the same transaction, i.e. a plan to take over the areas with a substantial Serbian population in two neighbouring States." The Trial Chamber found that "[t]he two conflicts are close enough in time and similar enough in the methods used to be said to represent interrelated parts of a particular episode." With regard to judicial economy, it considered that two trials would enable it "to manage the trial more easily." The Trial Chamber expressed the view that "the fact that the accused would have to defend himself on the contents of three Indictments together would be onerous and prejudicial".

Lastly, it noted that, unlike the other two, the Kosovo Indictment "is ready for trial". The Trial Chamber pointed out that "[t]he fact that the trials will take place in this order is the result of the fact that the Prosecution issued the Kosovo Indictment 2 years ago, but did not issue the Croatia and Bosnia Indictments until this autumn", i.e. 9 years and 6 years after the events.

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1. "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."
2. "In the Rules, unless the context otherwise requires, the following terms shall mean: […]
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".
3. The Prosecutor v. Milan Kovacevic ("Prijedor"), Case No. IT-97-24-AR73, Appeals Chamber, Decision Stating Reasons for Appeals Chamber's Order of 29 May 1998, 2 July 1998, Separate Opinion of Judge Shahabuddeen, in which the Judge considered that "[a]dditional charges must bear a reasonable relationship to the matrix of facts involved in the original charge." Judge Shahabuddeen noted that Rule 49 lays down the test of relationship, the language of which "recognises both the convenience to each side of trying several charges together and the injustice which might enure to the accused if he was required to answer unrelated charges at the same time." The Judge stated that Rule 49 appears to have taken its inspiration from the "same transaction" test used in the federal system of the United States of America. Judge Shahabuddeen concluded that "the question is whether all the counts, old and new, represent interrelated parts of a particular criminal episode" and added that it was "not necessary for all the facts to be identical" and that it was enough if the new charges could not "be alleged but for the facts which g[a]ve rise to the old."
See also The Prosecutor v. Radoslav Brdjanin & Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply, 9 March 2000 (hereinafter the "Brdjanin & Talic Decision", summarised in Judicial Supplement No. 13), in which the Trial Chamber adopted the Separate Opinion of Judge Shahabuddeen (para. 20).
4. The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-A, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, 3 June 1999, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 32; The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-A, Appeals Chamber, Decision on Appeal Against Oral Decision of Trial Chamber II of 28 September 1998, 3 June 1999, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 31; The Prosecutor v. Clément Kayishema, Case No. ICTR-95-1-T, The Prosecutor v. Gérard Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T, The Prosecutor v. Obed Ruzindana, Case No. ICTR-95-1-T and ICTR-96-10-T, Trial Chamber II, Decision on the Motion of the Prosecutor to Sever, to Join in a Superseding Indictment and to Amend the Superseding Indictment, 27 March 1997, page 3; The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7, The Prosecutor v. Gratien Kabiligi & Aloys Ntabakuze, Case No. ICTR-97-34 and ICTR-97-30, The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12, Trial Chamber III, Decision on the Prosecutor's Motion for Joinder, 29 June 2000 (hereinafter the "Bagosora, Kabiligi, Ntabakuze and Nsengiyumva Decision"), paras. 105 to 107.
5. See The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber III, Decision on Accused Mario Cerkez's Application for Separate Trial, 7 December 1998, in which the Trial Chamber held that "[t]o justify joinder what has to be proved is that (a) there was a common scheme or plan, and (b) that the accused committed crimes during the course of it" (para. 10).
See also The Prosecutor v. Vidoje Blagojevic, The Prosecutor v. Dragan Obrenovic, The Prosecutor v. Dragan Jokic, Case Nos. IT-98-33/1-PT, IT-01-43-PT, IT-01-44-PT, Trial Chamber II, Written Reasons following Oral Decision of 15 January 2002 on the Prosecution's Motion for Joinder, 16 January 2002 (hereinafter the "Blagojevic, Obrenovic and Jokic Decision"), in which the Trial Chamber considered that where it "finds that an indictment demonstrates prima facie that crimes have been committed in the course of the same transaction by different accused, in the sense that there was a common scheme, strategy or plan, and the accused committed crimes during the course of it, then legally it is possible to join accused in one indictment" (para. 19).
6. See The Prosecutor v. Gratien Kabiligi & Aloys Ntabakuze, Case No. ICTR-97-34-I, Trial Chamber II, Decision on the Defence Motion Requesting an Order for Separate Trials, 30 September 1998, in which the Trial Chamber held that "in the absence of evidence to the contrary, [it] shall act upon the Prosecutor's factual allegations as contained in the indictment and related submissions" (page 2); see also the Bagosora, Kabiligi, Ntabakuze and Nsengiyumva Decision. See also the Brdjanin & Talic Decision, para. 22.
7. "In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute."
See the Blagojevic, Obrenovic and Jokic Decision, in which the Trial Chamber found that before exercising its discretion, it "must pay close attention to Rule 82(B) so that joinder will not be ordered in circumstances where separate trials are considered necessary 'to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice'" (para 21).
8. See The Prosecutor v. Blagoje Simic et al. ("Bosanski Samac"), Case No. IT-95-9-PT, Trial Chamber II, Decision on Motion for Separate Trial for Simo Zaric, 3 February 2000, in which the Trial Chamber considered that "a joint trial avoids duplication of evidence, minimises hardship to witnesses, and is generally in the interests of judicial economy" (page 3); see also the Blagojevic, Obrenovic and Jokic Decision, para 20.