Before: Judge Richard May, Presiding

Judge Mohamed Bennouna

Judge Patrick Robinson

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 15 March 1999








The Office of the Prosecutor

Ms. Anne-Birgitte Haslund
Ms. Mary MacFadyen
Ms. Nancy Paterson

Defence Counsel

Mr. Branislav Avramovic for Milan Simic
Mr. Igor Pantelic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic, for Simo Zaric


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 ("the International Tribunal"),

BEING SEISED of a "Motion to Sever Defendants and Counts" ("Motion"), filed by counsel for the accused Stevan Todorovic ("the Defence") on 11 February 1999, and the "Prosecutor’s Response to the Defence Motion to Sever Defendants and Counts", filed by the Office of the Prosecutor ("the Prosecution") on 22 February 1999,

NOTING the written submissions of the parties and their arguments heard during a public hearing held on 4 March 1999,

NOTING the request of the Defence for a separate trial on the ground that a joint trial would be unfair because of the following reasons: (1) if the co-accused choose to testify they might incriminate Stevan Todorovic; (2) if the co-accused choose not to testify but if their pre-trial statements, which the accused says incriminate him, were to be entered into evidence, he would be deprived of the right to confront and cross-examine "his accusers"; and (3) if the accused himself were to testify on certain counts but remain silent on others, adverse inferences could be drawn against him,

NOTING the submission of the Defence that the possibility of "mutually antagonistic defences" in this case constitutes a conflict of interests that might cause serious prejudice to the accused Stevan Todorovic,

NOTING that the Prosecution argues that the above concerns are not applicable to cases before a Trial Chamber of the International Tribunal which is composed of professional Judges; that the Defence has failed to show a conflict of interests which would justify a separate trial, and that to grant separate trials would be adverse to the interests of justice,

NOTING that pursuant to Rule 48 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), "persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried", and that joint trials in such cases are a well-established practice in the International Tribunal,

CONSIDERING that the "same transaction" in this case consists of the alleged crimes which were committed in and around the municipalities of Bosanski Samac and Odzak from approximately 1 September 1991 through 31 December 1993, as described in the Second Amended Indictment,

CONSIDERING that pursuant to Rule 82 (B) of the Rules the Trial Chamber has the discretion to order separate trials "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 a Trial Chamber of the International Tribunal, composed of professional Judges, is able to assess the evidence in a case involving conflicting defences in a fair and just manner, without prejudice to any of the accused, and that such a case is best tried by the same Trial Chamber rather than a number of different Chambers,

CONSIDERING therefore, that the possibility of such "mutually antagonistic defences" does not constitute a conflict of interests capable of causing serious prejudice and that, in any case, separate trials would not eliminate the possibility of an accused testifying against another accused,

CONSIDERING that the argument raised by the Defence, concerning the possible testimony of the co-accused and the entering into evidence of their pre-trial statements, is a matter of evidence to be evaluated at trial,

CONSIDERING that the submission of the Defence on adverse inferences being drawn from a partial testimony is not relevant to the question of whether a separate trial is justified in this case,

CONSIDERING that a joint trial avoids duplication of evidence, minimizes hardship caused to witnesses, and is generally in the interest of judicial economy,

CONSIDERING therefore, that the interests of justice are best served by a joint trial in this case,




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


Richard May

Presiding Judge

Dated this fifteenth day of March 1999

At The Hague

The Netherlands

[Seal of the Tribunal]