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Mr. Mitko Naumovski, Mr. David F. Geneson, and Mr. Turner T. Smith, Jr.,
for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez

I. INTRODUCTION

1. Pending before this Trial Chamber of the International Criminal Tribunal for the former Yugoslavia ("the International Tribunal") is the "Accused Mario Cerkez’s Application for a Separate Trial" filed by Defence Counsel for Mario Cerkez ("the Defence") on 23 July 1998 ("the Application"). On 18 August 1998 the Office of the Prosecutor ("the Prosecution") filed a Response ("the Response"). The Defence filed a Reply on 31 August 1998 ("the Reply").

This motion was originally filed before Trial Chamber I, consisting of Judge Claude Jorda, Presiding, Judge Fouad Riad, and Judge Almiro Rodrigues. Oral argument on the motion was presented at a closed session status conference on 2 September 1998: the transcript was made available to this Trial Chamber and was considered in reaching this decision.

On 17 November 1998, by an Order of the President of the International Tribunal, Gabrielle Kirk McDonald, this case was assigned to the current Trial Chamber, composed of Judge Richard May, Presiding, Judge Mohamed Bennouna, and Judge Patrick Robinson. A closed session status conference was held on 26 November 1998 before Judge Richard May and Judge Mohamed Bennouna, Judge Robinson being unavoidably absent.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,

2. The Application for a separate trial is based on the general grounds: (a) that the Prosecution has not sufficiently alleged that the acts of the defendants were part of the same transaction under Rule 48 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"); and (b) that a joint trial will not lead to efficiency and may lead to delay and prejudice to the accused.

3. In amplification of this argument the Defence submits that no facts are alleged which support the existence of a common "scheme, strategy or plan"; these words connote some form of agreement or close coordination between the actors. Such a definition is consistent with domestic laws of conspiracy and Article 187 of the Criminal Code of Croatia. There is no allegation that Dario Kordic and Mario Cerkez were associated through such an agreement or close coordination, nor is there an allegation that Mario Cerkez was under the command of Dario Kordic; in fact, it is alleged that Mario Cerkez was under the command of Tihomir Blaskic. The mere allegation is that Dario Kordic and Mario Cerkez were both members of the Croatian Defence Council ("HVO") and strove to further its aims and objectives. Shared political affiliation is wholly inadequate to allege the existence of a common "scheme, strategy or plan".

4. The Defence further argues that the Trial Chamber should order severance in the interests of justice, under Rule 82 (B). The subject-matter of the trials of Dario Kordic and Mario Cerkez involves little overlap. The Prosecution evidence differs in regard to each accused. Whereas Dario Kordic is charged as a high-ranking political and military leader, Mario Cerkez is charged merely as an HVO Brigade commander in a single municipality involved in small-scale and local operational decisions. (Dario Kordic is charged with offences in a wider geographical area and over a greater length of time: 28 months as opposed to 16 in the case of Mario Cerkez). Trying both together would result in a significantly longer trial. Evidence brought against Dario Kordic could have a negative spill-over effect and unfairly magnify the responsibilities and activities of Mario Cerkez. For all these reasons, the Defence requests a separate trial for Mario Cerkez.

5. The Prosecution argues that the Trial Chamber should deny the Defence request for the following reasons:

1. The crimes alleged were a part of a common scheme, strategy or plan, i.e., "to attack the Muslim civilian population in the . . . Lasva Valley . . . generally and specifically . . . in Vitez and Busovaca and . . . Zenica";
2. the confirming Judge recognised that the accused were properly joined and that the case was appropriate for joint trial;
3. the allegations in the indictment reveal that the culpability of Dario Kordic and that of Mario Cerkez arise out of the same plan or series of events, i.e., a campaign of persecution and ethnic cleansing;
4. as an HVO commander, Mario Cerkez implemented the HVO goals and objectives and took part in the persecution campaign, whereas Dario Kordic played a central role in developing and executing the campaign;
5. there is no need for accused who are part of a plan to be in direct communication with each other; this would run counter to parallel jurisprudence from domestic jurisdictions on the law of conspiracy. The essential requirement is that a plan existed and criminal acts were performed pursuant to it. No matter how small the part of the accused, he is still part of the plan and should be tried together with those whose culpability also arises from the plan;
6. it is in the interests of justice that there should be a joint trial; the interests of justice do not relate merely to the accused, but to the administration of justice, which includes the interests of the International Tribunal and of the Prosecution;
7. witnesses called in previous trials may not be willing to give evidence if called twice and, in any event, there is greater hardship in giving evidence several times.

6. Rule 48 deals with joinder of accused:

For example, in a Decision on 15 May 1998 in Prosecutor v. Kupreskic et al.¹, Trial Chamber II ruled that the crimes charged in the indictment against six co-accused "consist of the attack on the Muslim population of Ahmici . . . , and are thus part of the same transaction".

7. In a Decision on Motions for Separate Trial in Prosecutor v. Delalic et al.², filed 25 September 1996, Trial Chamber II held that Rule 48 was to be read in the light of the definition of "transaction" in Rule 2, as well as Rule 82 (B). Rule 2 reads:

Rule 82 (B) states:

8. The accused are properly joined in the same indictment since they are accused of crimes committed in the course of the same transaction under Rule 48, i.e., a number of acts occurring as a number of events at different locations and being part of a common strategy or plan (Rule 2). The alleged common scheme, strategy or plan is set out in the indictment, i.e., to control various municipalities and territories by means of the ethnic cleansing or subjugation of the Muslim population in a campaign of persecution from about November 1991 to approximately March 1994 (Amended Indictment, filed 2 October 1998, paras. 24-35).

9. The alleged crimes of the accused Mario Cerkez in pursuance of the above plan are also set out in the indictment. His alleged role was to implement as an HVO commander by military means the above campaign which his co-accused Dario Kordic allegedly had a central role in developing and executing (Amended Indictment, paras. 25-27).

10. To justify joinder what has to be proved is that (a) there was a common scheme or plan, and (b) that the accused committed crimes during the course of it. It does not matter what part the particular accused played provided that he participated in a common plan. It is not necessary to prove a conspiracy between the accused in the sense of direct coordination or agreement. The transaction referred to in Rule 48 does not reflect the law of conspiracy found in some national jurisdictions.

11. The fact that evidence will be brought relating to one accused (and not to another) is a common feature of joint trials. On the basis of the submissions and the allegations in the indictment the Trial Chamber is of the view that this in itself will not cause serious prejudice to Mario Cerkez. Separate trials would probably have to be held consecutively and would therefore take considerably longer than a joint trial. If the accused were tried separately, it is likely that the trial of the first accused would substantially delay the trial of the second accused. The Trial Chamber does not consider, on the basis of the submissions of the accused and the allegations in the indictment, that there is a conflict of interests. Accordingly, no risk of serious prejudice arises as might cause a Trial Chamber to order separate trials under Rule 82 (B); nor do the interests of justice require separate trials. Indeed, the Trial Chamber considers that it is in the interests of justice, of which judicial economy in the administration of justice under the Statute of the Tribunal is an element, that these accused, charged as they are with offences arising from the same course of conduct, should be tried together.

12. The Trial Chamber is reinforced in its view that separate trials are not necessary in this case by the fact that the confirming Judge did not question the appropriateness of joint trials and confirmed the current joint indictment.

For the foregoing reasons

PURSUANT TO Rule 48 and Rule 82 (B) of the Rules,

THE TRIAL CHAMBER REFUSES the Application of the accused Mario Cerkez for a separate trial.

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

_____________________________

Richard May

Presiding Judge

Dated this seventh day of December 1998

At The Hague

The Netherlands

[Seal of the Tribunal]

1. Decision on Defence Motions for Separate Trials, Prosecutor v. Kupreskic et al., Case No. IT-95-16-PT, T. Ch. II, 15 May 1998.

2. Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalic and the Accused Zdravko Mucic, Prosecutor v. Delalic et al., Case No. IT-96-21-T, T. Ch. II, 25 Sept. 1996.

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