"Decision referring Decision on Motion for separate Trials"

4 November 1999
Trial Chamber II (Judges Cassese [Presiding], Mumba and Hunt)

Following the confirmation of an indictment against three or more accused, a Rule 53 non-disclosure order was issued by a Judge. The Judge also

(1) granted leave:

[...] to prepare separate redacted copies of the indictment relating to each of the individual accused, deleting all references to the other co-accused, which includes changing the language of the indictment to reflect singular rather than plural where appropriate, and re-numbering paragraphs and schedules where necessary [...].

and

(2) ordered that the non-disclosure order which he had made be vacated in part in respect of any documents relevant to an accused who had been detained or arrested, and that it otherwise continue in effect until the arrest of all accused who were at large or until further order.

These details were obtained by the Trial Chamber from a specially redacted version of the order. The Trial Chamber commented that such a document should have been released by the Registry in such a form at the time the first (or, at the latest, the second) of the accused was arrested.

Redacted indictments naming each of the accused were certified by the Registrar as conforming with the decision of the confirming Judge and were filed the same day1. Two such indictments were served when two of the accused were arrested a month apart. The Prosecution then filed a further redacted indictment which charged the two accused jointly. This Indictment was said to have been filed in accordance with the order of the confirming Judge. One of the two accused then applied for a separate trial.

The Trial Chamber ruled that there was nothing in the order which granted leave to prepare a redacted indictment naming two of the three or more accused in the original, confirmed Indictment, although it did state that such an order could have included leave to file redacted indictments against any combination of such accused less than them all2.

The Trial Chamber stated that this problem was likely to recur when sealed indictments against more than one accused were used, and that care had to be taken that an overly technical approach not hinder the use of such indictments.

It went on to point out, however, that the application for a separate trial required some care. Given the form of the indictment, the Trial Chamber went on to state that, although it was reasonable to conclude that the original sealed indictment also charged three or more accused jointly, the application for a separate trial could relate only to the further redacted indictment3. Since the Prosecution was not given leave to file that indictment, the application for a separate trial was necessarily premature.

The Trial Chamber also took into account the fact that the Prosecution had given notice of its intention to apply to the confirming Judge for leave to add further charges against both accused based upon new material. The decision on the application for a separate trial was accordingly deferred until the final form of the indictment was known.

______________________________________________
1. On 14 March 1999, the confirming Judge, Judge Rodrigues, confirmed an indictment and issued an order for non-disclosure of the indictment, the arrest warrants and other documents before him. At the time of the confirmation, Judge Rodrigues granted leave to prepare separate redacted copies of the indictment relating to each of the individual accused.
2. The redacted indictment naming only Brdjanin was served on him when he was arrested in July of this year, and the one naming only Talic was served on him when he was arrested in August.
3. A non-disclosure order may be vacated in part, notably with regard to an accused who has been arrested or detained. It otherwise continues in effect with regard to other accused.