BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Lal Chand Vohrah
Judge Rafael Nieto-Navia

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
16 May 2000

PROSECUTOR

v.

RADOSLAV BRDANIN
MOMIR TALIC

___________________________________________________________

DECISION ON REQUEST TO APPEAL

___________________________________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Michael Keegan
Ms. Ann Sutherland

Counsel for the Appellant Momir Talic:

Mr. Xavier de Roux
Mr. Michel Pitron

 

THIS BENCH of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("the Bench"),

BEING SEIZED OF a "Request to Appeal against the Decision of 9 March 2000", filed by the accused Momir Talic ("the Appellant") on 17 March 2000 in French ("the Request" and "the Decision", respectively), pursuant to sub-Rule 72 (B) (ii) of the Rules of Procedure and Evidence ("the Rules");

NOTING the "Prosecution’s Response to ‘Request to Appeal Against the Decision of 9 March 2000’ filed by Counsel for the Accused Momir Talic", filed on 21 March 2000;

NOTING that the Request was filed on the eighth day from the filing of the Decision, thus being out of time in terms of sub-Rule 72 (C), but that the Bench considers it to be validly filed on the ground that the seventh day from the filing of the Decision, the date on which the Request was due, was a United Nations holiday;

NOTING that the Decision rejected a preliminary motion of the Appellant seeking the separation of his trial from that of his co-accused;

CONSIDERING 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", and that such leave is required in order to appeal from a decision on a preliminary motion seeking the severance of counts joined in one indictment under Rule 49 or separate trials under sub-Rule 82 (B);

NOTING that the Appellant considers that the "Trial Chamber rejected General Talic’s request on the following grounds:

- the Prosecution allegations clearly show that a single campaign was being waged by one same people against another same people, at the same time and in the same region, which satisfies the requirements of Rule 48 of the Rules of Procedure and Evidence.

- there is no risk of the different deadlines in each case (his and Mr. Brdjanin’s) or of the conflict of interests arising from a conflict between the Defence causing prejudice to General 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…’";

NOTING further that the Appellant considers that "SnCone of the three aforesaid arguments put forward by the Trial Chamber is relevant", and interpreting this to mean that the Appellant’s grounds of appeal relate to the three aforementioned arguments;

CONSIDERING that, as to the first of the three grounds of the Request, it was open to the Trial Chamber to find that the criteria prescribed by Rule 48 of the Rules for the joinder of accused were satisfied;

CONSIDERING more particularly that the Request argues that the Decision changed the meaning of the text of the Amended Indictment "which lead to the two accused being classed together, sometimes contrary to the very text of the indictment which confers upon them distinct roles";

CONSIDERING that the Decision did not purport to make any finding as to the substance of the Amended Indictment when it described its content;

CONSIDERING that, in the circumstances, no basis has been shown for suggesting any error on the part of the Trial Chamber in reaching the Decision on the first ground, and that there is therefore no showing of good cause so far as this ground is concerned;

CONSIDERING that, as to the second ground, it was open to the Trial Chamber, in its discretion, to decide on the different deadlines and on any possible conflict of interests, and that its decision should not be upset in the absence of compelling reasons;

NOTING that the scheduling order to which the Appellant refers was made by the Trial Chamber with the object of facilitating the Appellant in filing a proper response and was not intended to prejudice him in any way;

CONSIDERING that, in the circumstances, no basis has been shown for suggesting any error on the part of the Trial Chamber in reaching the Decision on the second ground, and that there is therefore no showing of good cause as far as this ground is concerned;

CONSIDERING that, as to the third ground of the Request, it was open to the Trial Chamber to consider whether a joint trial would be in the interests of justice, and noting in this respect that sub-Rule 82 (B) provides that a 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;

CONSIDERING that sub-Rule 82 (B) 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;

CONSIDERING further that the Decision stated that "StChe 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", and 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";

CONSIDERING that, in the circumstances, no basis has been shown for suggesting any error on the part of the Trial Chamber in reaching the Decision on the third ground, and that there is therefore no showing of good cause as far as this ground is concerned;

FINDS that the Appellant has failed to establish in his Request the existence of good cause within the meaning of sub-Rule 72 (B) (ii); and

PURSUANT to sub-Rule 72 (B) (ii),

HEREBY REJECTS the Request.

Done in both English and French, the English text being authoritative.

 

________________________________
Mohamed Shahabuddeen
Presiding Judge

Dated this sixteenth day of May 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]