Case No. IT-99-36-T
IN TRIAL CHAMBER II
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Mr. Hans Holthuis
3 October 2002
DECISION ON "REQUEST FOR CERTIFICATION TO APPEAL AGAINST THE DECISION TO SEPARATE TRIALS" AND ON "MOTION TO EXTEND TIME-LIMIT FOR FILING BRIEF IN SUPPORT OF REQUEST FOR CERTIFICATION TO APPEAL"
The Office of the Prosecutor:
Ms. Joanna Korner
Mr. Andrew Cayley
Counsel for the Accused:
Mr. John Ackerman and Mr. Milan Trbojevic, for Radoslav Brdjanin
Mr. Slobodan Zecevic and Ms. Natacha Fauveau-Ivanovic, for Momir Talic
TRIAL CHAMBER II ("Trial 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 ("Tribunal") is seised of the "Request for Certification to Appeal Against the Decision to Separate Trials" ("Request") and "Motion to Extend Time-Limit for Filing Brief in Support of Request for Certification to Appeal" ("Motion"), filed by the Accused Momir Talic ("Talic") on 27 September 2002 pursuant to Rule 73 (B) and (C) of the Rules of Procedure and Evidence ("Rules").
- On 20 September 2002 the Trial Chamber rendered its "Decision on Prosecutionís
Oral Request for the Separation of Trials" ("Decision"), pursuant to which
the proceedings against Talic were separated from those against the Accused
Radoslav Brdjanin ("Brdjanin"), who is charged under the same indictment,
upon the completion of the testimony of witness Muhamed Filipovic. The Trial
Chamber ruled that it is in the interest of justice to sever the Trials in
the circumstances that one of the Accused, namely Talic, has been certified
by a panel of medical experts as being unfit to stand trial.
- Talic now seeks certification from the Trial Chamber to appeal the Decision
pursuant to Rule 73 (B) of the Rules, arguing that "the impugned decision
might seriously affect the fair conduct of the proceedings and the outcome
of General Talicís Trial and is not in the interests of justice". Moreover,
pursuant to Rule 73 (C) of the Rules, Talic asks for an extension of time
to file a brief in support of the Request.
- On 30 September 2002 the Office of the Prosecutor ("Prosecution") filed
its "Prosecutionís Response to the Pleadings Entitled "Demande de certification
díappel contre la décision relative à la disjonction díinstances"
and "Requête aux fins de prorogation du délai pour déposition
du mémoire soutenant la demande de certification díappel" Filed by
Counsel for the Accused Momir Talic on 27 September 2002" ("Response"). The
Prosecution submits that the Request is based upon a fundamental misinterpretation
of the law with regard to joint criminal enterprise and consequently asserts
that the Request and the Motion are without merit and should be dismissed.
- On 1 October 2002, Counsel for Brdjanin gave notice to the Trial Chamber
and the Prosecution that Brdjanin is planning to file motions which might
have implications for the presentation of evidence in the proceedings against
Brdjanin during the week of 6 October and perhaps thereafter. Following this
notice, the Trial Chamber received a "Motion to Stay Evidentiary Proceedings",
in which Brdjanin requests the Trial Chamber to delay any decision on Talicís
Request and Motion until the English translations have been provided to Counsel
for Brdjanin and until there has been proper time to respond to Talicís filings,
should he consider it appropriate to do so. In addition, Brdjanin requests
the Trial Chamber to stay the evidentiary hearings in the proceedings against
Brdjanin until the issues raised by the Talic filings are resolved.
- Upon receipt of Brdjaninís filings, the Trial Chamber sent a fax to
Counsel for Brdjanin on 1 October 2002 granting him 24 hours from the moment
of receipt of that fax to file a Response to Talicís Request and Motion. The
Trial Chamber attached a copy of the English translations of Talicís Request
and Motion, which were filed on the same day. Counsel for Brdjanin was directed
to acknowledge receipt of that fax as soon as he received it.
- Defence for Brdjanin responded through 2 faxes. The first fax acknowledged
receipt of the English translations of Talicís filings. The second fax stated
that the Defence for Brdjanin will not respond to Talicís Request and Motion.
- On 1 October 2002, the Prosecution submitted its "Prosecutionís Response
to the Pleadings Entitled "Motion to Stay Evidentiary Proceedings" Filed by
Counsel for the Accused Radoslav Brdjanin on 1 October 2002"", in which it
asked the Trial Chamber to instruct Defence for Brdjanin to respond to Talicís
filings by 4 p.m. on 2 October 2002.
A. Talicís Request
- In view of what will be stated in the following paragraphs, the submission
of Talic that as a result of the Decision of this Trial Chamber to sever the
Trials might seriously affect the fair conduct of the proceedings and the
outcome of Talicís Trial, does not call for any consideration and will not
be considered by this Trial Chamber. Nor will the Prosecutionís Response on
this issue be considered. Talicís Request for certification, as will be explained,
cannot be accepted for the reasons that will be stated and which are strong
enough as not to leave place for other considerations. Indeed if as the Defence
for Talic submits and maintains, Talic is unfit to stand trial, the submission
that his Trial may be prejudiced as a result of the Decision sought to be
appealed is an untimely one. If his medical condition improves and he can
stand trial, appropriate submissions can be made at that time.
- In judging the merit of the Request, the Trial Chamber recalls the statement
by the Defence for Talic at the Hearing on 19 September 2002 that "[a]s to
the severance of the case, we leave that in the hands of the Trial Chamber"1.
In the view of the Trial Chamber, the Defence for Talic hereby recognized
explicitly and in accordance with the jurisprudence of this Tribunal the judicial
discretion of the Trial Chamber to determine the matter of severance of Trials
in the circumstances of the case before it. Moreover, during the Hearing on
26 September 2002, the Defence for Talic acknowledged that "the Trial has
to be separated"2, admitting implicitly that the
interests of justice required the Trials to be severed pursuant to Rule 82
(B) of the Rules.
- Given the present as well as the prognosed medical condition of Talic,
and the insistence of his Defence throughout that he is unfit to stand trial
and that his condition can only deteriorate with time, his request to this
Trial Chamber to go back on its Decision to sever the two Trials can only
be seen and considered with the loudest disapproval. What Talic is asking
for is to ultimately bring chaos in this case and a situation where the Trial
itself will necessarily come to a halt and would require severance in any
case. This Trial Chamber cannot but look at this as a blatant abuse of process.
It should have been obvious to the Defence of Talic that what is in the interest
of justice is the Decision to sever the two Trials and not the opposite.
- The Trial Chamber consequently finds that this Request is not only without
merit, but also manifestly ill-founded and frivolous. Pursuant to Rule 46
(C) of the Rules, the Trial Chamber decides to subject the bringing of this
frivolous Request to a sanction.
B. Talicís Motion
- In the context of the frivolous character of Talicís Request, the Trial
Chamber sees no reason why the Defence for Talic should be given an extension
of time to file a brief in support of the Request for certification to appeal.
The Motion is therefore rendered otiose.
- However, the Motion is indicative of what situation the Defence of Talic
wants this Trial Chamber to embark itself in, namely a situation where the
Trial itself will necessarily come to a halt and would require severance just
the same. For that reason, the Trial Chamber cannot but see that the Motion
too is frivolous and will apply to it the sanction pursuant to Rule 46 (C)
of the Rules.
For the foregoing reasons,
PURSUANT to Rule 46 (C) and Rule 73 (B) and (C) of the Rules,
TRIAL CHAMBER II HEREBY ORDERS THAT
1. The Request of Talic is dismissed and the certification is declined, and the Trial of the Prosecutor v. Brdjanin will proceed as decided i.e. separately from that against Talic.
2. The Motion of Talic is dismissed.
3. The Registrar is directed to withhold payment of the whole of fees associated with the Request and the Motion of Talic and/or costs thereof.
Done in French and English, the English version being authoritative.
Dated this 3rd day of October 2002,
At The Hague
[Seal of the Tribunal]
1 - Unofficial Transcript of the Hearing on 19
September 2002, T. 9938.
2 - Unofficial Transcript of the Hearing on 26 September 2002,