Case No.: IT-05-87-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
7 September 2005

PROSECUTOR

v.

MILAN MILUTINOVIC
NIKOLA SAINOVIC
DRAGOLJUB OJDANIC
NEBOJSA PAVKOVIC
VLADIMIR LAZAREVIC
VLASTIMIR DORDEVIC

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DECISION ON PAVKOVIC MOTION TO SET ASIDE JOINDER OR IN THE ALTERNATIVE TO GRANT SEVERANCE

__________________________________________________

The Office of the Prosecutor

Mr. Thomas Hannis
Ms. Christina Moeller
Ms. Carolyn Edgerton

Counsel for the Accused

Mr. Eugine O’Sullivan and Mr. Slobodan Zecevic for Milan Milutinovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Dragoljub Ojdanic
Mr. Toma Fila and Mr. Vladimir Petrovic for Nikola Sainovic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder for Mr. Sreten Lukic

THIS 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 ("International Tribunal"),

BEING SEIZED of the "Pavkovic Motion to Set Aside Joinder Order or in the Alternative to Grant a Severance," dated 16 August 2005 ("Motion"),

NOTING the "Addendum to Pavkovic Motion to Set Aside Joinder or in the Alternative to Grant a Severance," dated 19 August 2005 ("Addendum"), and the additional oral submissions made by counsel for the Accused, Nebojsa Pavokovic ("the Accused"), at the Status Conference held on 25 August 2005 ("Status Conference"),

NOTING the "Decision on Prosecution Motion for Joinder," issued by this Trial Chamber on 8 July 2005 ("Joinder Decision"), which granted a "Motion for Joinder" filed by the Prosecution on 1 April 2005 ("Joinder Motion"), seeking to join the three accused in Prosecutor v. Milan Milutinovic, Dragoljub Ojdanic and Nikola Sainovic, Case No. IT-99-37-PT, with the four persons accused in Prosecutor v. Nebojsa Pavokovic, Vladimir Lazarevic, Vlastimir Dordjevic and Sreten Lukic, Case No. IT-03-70-PT, and for all seven accused to be jointly charged and tried under one joint indictment,

NOTING that counsel for the Accused agreed at the Status Conference that the Trial Chamber could consider the Motion, the Addendum, and the additional oral submissions as the substance of his objections to the Joinder Motion,

NOTING ALSO that the Accused states in his Motion that the Joinder Motion was not served upon his counsel, Mr. John Ackerman, who was appointed on 13 June 2005,¹ and that Mr. Ackerman received no documents from the duty counsel who had been assigned by the Deputy Registrar to represent the Accused for his initial appearance on 28 April 2005 "and in such other matters as may be necessary until a permanent counsel is assigned,"²

NOTING FURTHER that the Accused submits in his Motion that

1. no joinder decision should have been issued by the Trial Chamber until such time as counsel of his choosing had been assigned and given the opportunity to respond,

2. in the alternative, pursuant to Rule 82(B), he should be tried separately on the grounds that being tried jointly with the other defendants would cause him serious prejudice and that it would not be in the interests of justice,

3. his defence team started working on the case near the end of June 2005, and that they need a considerable amount of time to review and analyse all of the material provided by the Prosecution in order to prepare for trial,

4. requiring him to be ready for trial as early as December 2005 or January 2006 is a violation of equality of arms,

NOTING that in his Addendum the Accused submits that added allegations concerning events in Kosovo in 1998 have been added by the Prosecution in its Amended Joinder Indictment, filed on 16 August 2005,

NOTING ALSO that the additional oral submissions made by counsel for the Accused at the Status Conference simply restated his position that the defence team requires a significant amount of time to prepare for trial,

CONSIDERING that at the Status Conference the Prosecution clarified that it does not intend to charge the Accused with crimes committed in 1998,

CONSIDERING that the following factors were taken into account by the Trial Chamber in its Joinder Decision:

1. whether the accused are charged with the same crimes, allegedly committed during the same period and in the same geographical area,³

2. whether the indictments demonstrate prima facie that the crimes charged against all the accused were committed in the course of the same transaction,⁴

3. whether joinder would avoid duplication of the presentation of evidence related to underlying crimes, would minimise hardship to witnesses, and would be in the interests of judicial economy,⁵

4. whether joinder would create a conflict of interest or otherwise prejudice the right of any of the accused to a fair and expeditious trial,

CONSIDERING ALSO that:

1. no date has yet been set for trial in the present case and that the Accused will have adequate time and facilities for the preparation of his defence,

2. no basis has been identified for concluding that joinder would create a conflict of interest or otherwise prejudice the right of the Accused to a fair and expeditious trial,

3. the Trial Chamber is satisfied that it is in the interests of justice that all seven accused persons be tried in a single trial and that, had the arguments put forward by the Accused opposing joinder been submitted prior to the Trial Chamber’s Joinder Decision, they would not have altered its Decision,

PURSUANT to Rules 54 and 82 of the Rules of Procedure and Evidence,

HEREBY DENIES the Motion.

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

___________________________
Judge Patrick Robinson
Presiding

Dated this seventh day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]