Case No. IT-95-11-PT
IT-03-69-PT
IT-03-67-PT
IN TRIAL CHAMBER III
Before:
Judge Patrick Robinson, Presiding
Judge Carmel Agius
Judge Liu Daqun
Registrar:
Mr. Hans Holthuis
Decision of:
10 November 2005
PROSECUTOR v. MILAN MARTIC
PROSECUTOR v. JOVICA STANISIC AND FRANKO SIMATOVIC
PROSECUTOR v. VOJISLAV SESELJ
_______________________________________________
DECISION ON PROSECUTION MOTION FOR JOINDER
_______________________________________________
The Office of the Prosecutor:
Ms. Carla Del Ponte
Ms. Hildegard Uertz-Retzlaff
Mr. David Re
Counsel for the Accused:
Mr. Predrag Milovancevic and Mr. Vuk Sekulic
for Milan Martic
Mr. Geert-Jan Alexander Knoops and Mr. Wayne Jordash
for Jovica Stanisic
Mr. Zoran Jovanovic for Franko Simatovic
The Accused:
Mr. Vojislav Seselj
Standby Counsel in the Case Against Vojislav
Seselj:
Mr. Tjarda Eduard van der Spoel
I. BACKGROUND
- 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 (“Tribunal”)1 is seized of three identical
motions for joinder of the cases of Prosecutor
v. Milan Martic, Prosecutor v. Jovica Stanisic
and Franko Simatovic, and Prosecutor v. Vojislav
Seselj, filed by the Office of the Prosecutor on
1 June 2005 and 19 July 2005 (“ Joinder Motion”).2
- The Prosecution requests that the cases against
the accused Jovica Stanisic (“Stanisic ”), Franko
Simatovic (“Simatovic”), Milan Martic (“Martic”)
and Vojislav Seselj (“Seselj”) be joined and tried
in a single trial.3
- Martic is currently charged in an indictment
filed on 24 July 1995, amended on 18 December 2002
and amended again on 9 September 2003.4 He is charged with individual
criminal responsibility pursuant to Article 7(1)
of the Statute of the Tribunal (“Statute”) and
with superior responsibility pursuant to Article
7(3) of the Statute for crimes against humanity
(persecutions, extermination, murder, imprisonment,
torture, inhumane acts—including forcible transfers—and
deportation) and violations of the laws or customs
of war (murder, torture, cruel treatment, wanton
destruction of villages or devastation not justified
by military necessity, destruction or wilful damage
to institutions dedicated to education or religion,
plunder of public or private property and attacks
on civilians). The crimes are alleged to have been
committed on or about 1 August 1991 until 31 December
1995, in various parts of Croatia and Bosnia and
Herzegovina (“BiH”), namely the
Serbian Autonomous Region (“SAO”) Krajina and the
city of Zagreb in Croatia, and the Autonomous Region
of Krajina (“ARK”) in BiH.5 Martic was transferred to the
Tribunal on 15 May 2002, and has been in detention
since that time. His motions for provisional release
were denied.6
- Stanisic and Simatovic are currently charged
in a single indictment that was filed on 1 May
2003 and amended on 9 December 2003.7 On 6 May 2005, the Prosecution
filed a motion for leave to amend the amended Indictment.8 That
motion is still pending. According to the current
Indictment, Stanisic and Simatovic are charged
with individual criminal responsibility pursuant
to Article 7(1) of the Statute for crimes against
humanity (persecutions, murder, inhumane acts—forcible
transfers—and deportation) and violations of the
laws or customs of war (murder). The crimes are
alleged to have been committed on or about 1 April
1991 until 31 December 1995, in the SAO Krajina,
SAO Slavonia, Baranja and Western Srem (“SAO SBWS”)
in Croatia, and in several municipalities in BiH.9 Stanisic was
transferred to the Tribunal on 11 June 2003, and
Simatovic was transferred to the Tribunal on 30
May 2003. Both accused were granted provisional
release by the Trial Chamber on 28 July 2004.10 The
Appeals Chamber confirmed the Trial Chamber decision11 and the accused were provisionally
released on 9 December 2004.
- Seselj is currently charged in an indictment
filed on 15 January 2003 and amended on 12 July
2005.12 He
is charged with individual criminal responsibility
pursuant to Article 7(1) of the Statute for crimes
against humanity (persecutions, extermination,
murder, imprisonment, torture, inhumane acts, deportation
and forcible transfers) and violations of the laws
or customs of war (murder, torture, cruel treatment,
wanton destruction of villages or devastation not
justified by military necessity, destruction or
wilful damage to institutions dedicated to education
or religion and plunder of public or private property).
The crimes are alleged to have been committed on
or about 1 August 1991 until September 1993, in
various territories in Croatia and BiH and in parts
of Vojvodina in Serbia.13 Seselj was transferred to the
Tribunal on 24 February 2003, and has been in detention
since that time. His motion for provisional release
was denied.14 Seselj
is representing himself, but a Standby Counsel
has been appointed by the pre-Trial Chamber.15
- All four accused have filed responses to the
Joinder Motion opposing the Prosecution request
for joinder. Martic filed his response on 13 June
2005,16 Stanisic and Simatovic on 29
June 2005,17 and Seselj on 29 August 2005.18
- On 5 July 2005 the Prosecution requested leave
to reply to the submissions filed by the accused
Stanisic and Simatovic, and attached a consolidated
reply to its request (“Prosecution Reply”).19 The
Trial Chamber will grant the Prosecution leave
to file the consolidated Reply, and takes the submissions
made in the Reply into consideration.
II. THE LAW
- Rule 48 of the Rules of Procedure and Evidence
of the Tribunal (“Rules”)
provides that “[p]ersons accused of the same or
different crimes committed in the course of the
same transaction may be jointly charged and tried.” A “transaction” is
defined in Rule 2 of the Rules as a “number of
acts or omissions whether occurring as one event
or a number of events, at the same or different
locations and being part of a common scheme, strategy
or plan.”
- If the Chamber decides that the requirements
of Rule 48 have been met, it may, based on an evaluation
of various factors, decide either to grant joinder
or leave the cases to be tried separately. The
case law of the Tribunal suggests that the following
factors may properly be taken into account in making
this determination: (i) promoting judicial economy;
(ii) avoiding conflicts of interest that might
cause serious prejudice to the accused; (iii) protecting
the interests of justice, inter alia, by
safeguarding the rights of the accused to a fair
and expeditious trial; (iv) minimising hardship
to witnesses, and (v) ensuring consistency of verdicts.20
- In deciding whether charges against accused
should be joined pursuant to Rule 48, a Trial
Chamber should base its determination upon the
factual allegations contained in the indictments
and related submissions.21
III. RULE 48 OF THE RULES
Arguments of the Parties
- The Prosecution submits that the three cases
should be joined because the crimes alleged in
the three Indictments were committed in the course
of the same “transaction,” as defined in Rules
48 and 2 of the Rules.22
- According to the Prosecution, all four accused
participated in a Joint Criminal Enterprise (“JCE”)
with a common general purpose: the “forcible
removal of a majority of the non-Serb population,
primarily, Croats and Muslims, from large areas
of the territory of Croatia and Bosnia and Herzegovina,
through the commission of crimes in violation of
Articles 3 and 5 of the Statute.”23 Although the Prosecution
concedes that there are differences in the wording
of the JCEs alleged in the three Indictments, it
nevertheless argues that these differences are
of a semantic nature, and that “?tghe large degree
of similarity between the three Indictments as
to the object of the JCE overshadows these slight
differences in wording.”24 The Prosecution
emphasises that it has phrased the JCE allegations
against the four accused in similar terms “precisely
because it is the Prosecution’s case that they
shared a common long-term aim.”25
- Moreover, the Prosecution argues that additional
similarities between the three Indictments—such
as the overlap in the time-span of the JCE and
the identical wording of the mens rea of
the accused in the three Indictments—underscore
the singularity of the purpose shared by the accused
in pursuit of the common scheme. Indeed, the Prosecution
submits, all four accused cooperated with each
other.26 The
Prosecution further points to the large degree
of overlap in the names of other participants of
the JCE alleged in each Indictment.27
- The Prosecution also submits that the crime
bases of the Indictments of Seselj and Stanisic/Simatovic,
and of the Indictments of Martic and Stanisic/Simatovic,
significantly overlap.28 Although
there is no crime -base overlap in the allegations
made against Martic and Stanisic/Simatovic for
events in BiH, the Prosecution argues that the
crimes alleged against these accused still form
part of the same campaign of persecution.29 Moreover, the Prosecution argues
that according to the Tribunal’s Rules and jurisprudence
the fact that the alleged acts and/or omissions
of each accused did not occur in the same place
should not bar joinder.30
- Nor, the Prosecution submits, should differences
in the alleged form of participation of the accused
dissuade a Trial Chamber from joining accused.
It is in the very nature of a JCE that high-level
participants play distinct roles,31 the Prosecution argues,
and it is irrelevant whether co-accused played
different roles in the hierarchy of command.32
- The accused raise various objections to the
Prosecution’s conclusion that
the crimes charged constitute one “transaction” as
required by Rule 48.33 Martic acknowledges that the
Indictments “contain largely
similar allegations regarding the so-called joint
criminal enterprise which may satisfy the same
transaction criterion for joinder within the meaning
of the term transaction set out in Rule 2 of the
Rules and further elaborated in the Tribunal’s
jurisprudence.”34 Stanisic,
Simatovic and Seselj, however, object to the wide
interpretation given by the Prosecution to the
notion of “same transaction”, and to the reliance
on a very general formulation of the alleged common
JCE as a basis for such a transaction.35 According to Stanisic,
the differences in the wording of the alleged JCEs
are significant, and reflect the different purpose
and nature of each alleged JCE.36
- Stanisic further emphasizes that a decision
on whether a “same transaction” exists
cannot be based on common purpose solely, but should
also be based on factors such as the timing of
the events, their geographical location, the means
by which the acts of the accused were alleged to
have been committed, and the exact wording and
description of the allegations within the individual
Indictments.37
- Stanisic and Seselj submit that according to
the three indictments there are differences in
the alleged activities and mode of participation
in the JCE of each accused.38 Stanisic adds
that the Prosecution submissions do not show a
hierarchical relationship between the accused,
and show only very little coordination between
the activities of the accused.39 Moreover, Stanisic
and Simatovic refer to the small number of common
witnesses as an additional indication that there
is very little overlap between the Indictments.40 Stanisic also argues that the
Indictments differ in relation to the counts charged
against the accused.41 Finally,
all four accused submit that the three Indictments
differ considerably in their crime bases.42
Discussion
- The Trial Chamber must first determine whether
the crimes alleged in the three Indictments form
part of the same transaction, i.e. part
of a common scheme, strategy or plan. According
to the Tribunal’s Rules and
jurisprudence, acts of the accused can form part
of the same transaction even if they are comprised
of different crimes, and even if they were carried
out in different areas and over different periods
of time, provided that there is a sufficient nexus
between them.43
- In this case, the three Indictments charge the
accused with participation in a JCE with a similar
long-term aim: the forcible removal of non-Serbs
from large areas of Croatia and BiH through the
commission of crimes under articles 3 and 5 of
the Statute; indeed, the accused are alleged to
have had contact with one another.44 However,
the wording of the “common purpose” alleged in
each of the three Indictments is not identical.45
- In addition, there is only a partial overlap
between the (i) counts and (ii) mode of liability
charged against each accused; and (iii) the time-frame
and (iv) location of the crimes charged in the
three Indictments.
- First, with regard to the counts charged, although
all four accused are charged with persecution,
murder, deportations and forcible transfers,46 only Martic and Seselj are charged
with extermination, imprisonment, torture, inhumane
acts, cruel treatment, wanton destruction of villages
or devastation not justified by military necessity,
destruction or wilful damage done to institutions
dedicated to religion or education and plunder
of public or private property,47 and
only Martic is charged with the crime of attacks
on civilians.48
- Second, with regard to the modes of liability
charged, although all four accused are charged
with individual criminal responsibility pursuant
to Article 7(1) of the Statute for planning, ordering,
committing (inter alia through
participating in a JCE) and aiding and abetting
the crimes alleged in the Indictments, only Martic
and Seselj are charged in addition with individual
criminal responsibility for instigating the commission
of the crimes alleged.49 Moreover, the allegation that
Seselj instigated certain crimes is based in part
on “speeches” and other “communications” he made,
whereas the allegation against Martic is not.50 Finally,
of the four accused, only Martic is charged with
superior responsibility pursuant to Article 7(3)
of the Statute.51
- Third, with regard to the time-period of the
alleged crimes, the Trial Chamber observes that
all three Indictments refer to JCEs that came into
existence no later than 1 August 1991. However,
while Martic, Stanisic and Simatovic are charged
with crimes that are alleged to have been committed
up to August 1995, Seselj is only charged with
crimes that are alleged to have been committed
up to October 1993.52
- Finally, with regard to the location of the
crimes with which the accused are charged, the
Trial Chamber observes that the Indictments against
Martic and Stanisic/Simatovic charge the accused
with criminal responsibility for events that, with
a few exceptions, took place in the same parts
of SAO Krajina in Croatia.53 Moreover, the
Indictments against Seselj and Stanisic/Simatovic
charge the accused with criminal responsibility
for events that took place in Vukovar/SAO SBWS
in Croatia, and Zvornik, Bosanski Samac and Bijeljina
in BiH.54 However, only Martic is charged
with criminal responsibility for events in Zagreb
in Croatia, and for events in Bosanski Novi, Bosanska
Gradiska, Prnjavor and Sipovo in BiH.55 Furthermore,
only Stanisic and Simatovic are charged with criminal
responsibility for events in Doboj, Mrkonjic Grad,56 and
Sanski Most in BiH.57 Finally,
only Seselj is charged with criminal responsibility
for events in SAO Western Slavonia in Croatia,
in Greater Sarajevo, Mostar, Nevesinje, Brcko in
BiH, and Vojvodina in Serbia.58 There
is, therefore, only a partial geographical overlap
between events alleged to entail criminal responsibility
for Martic and Stanisic/Simatovic, and a partial
overlap between events alleges to entail criminal
responsibility for Seselj and Stanisic/Simatovic.
Moreover, it is noteworthy that there is no overlap
at all between the geographical location of events
alleged to entail criminal responsibility for Martic
and Seselj.59
- On the basis of the above analysis, the Trial
Chamber has to consider whether the crimes alleged
in the three Indictments fall within the definition
of “same transaction ” under Rule 48 of the Rules.
The decision of the Appeals Chamber in the Milosevic case
is instructive as to the meaning of the term “same
transaction”.60
- The Milosevic Trial Chamber found the
nexus between the crimes alleged in the Indictment
regarding Kosovo and the crimes alleged in the
Indictments relating to Croatia and Bosnia “too
nebulous to point to the existence of ‘a common
scheme, strategy or plan’ required for the ‘same
transaction’ under Rule 49.”61 That
Chamber based its decision denying joinder on the
distinction, in time and place, between the Kosovo
Indictment, on the one hand, and the Croatia and
Bosnia Indictments, on the other, as well as on
the distinction in the way in which the accused
is alleged to have acted in each Indictment.62
- The Appeals Chamber, however, reversed the Trial
Chamber’s decision,63 finding that the events
alleged in the three Indictments—Kosovo,
Croatia and Bosnia —formed part of the “same
transaction” pursuant
to Rules 2 and 49 of the Rules. It therefore
ordered that the three Indictments be joined.64
- For the Appeals Chamber it was sufficient that:
[t]he indictments…when taken
as a whole…make it sufficiently
clear that the purpose behind the events
in each of the three areas for which the
accused is alleged to be criminally responsible
was the forcible removal of the majority
of the non-Serb civilian population from
areas which the Serb authorities wished to
establish or to maintain as Serbian-controlled
areas by the commission of the crimes charged.
The fact that some events occurred within
a province of Serbia and others within neighbouring
states does not alter the fact that, in each
case, the accused is alleged to have acted
in order to establish or maintain Serbian
control over areas which were or were once
part of the former Yugoslavia.65
- The Appeals Chamber further found that a “transaction” may
be a common scheme, strategy or plan with a long-term
aim, and further clarified that:
[a] joint criminal enterprise
to remove forcibly the majority of the non-Serb
population from areas which the Serb authorities
wished to establish or to maintain as Serbian
controlled areas by the commission of the
crimes charged remains the same transaction
notwithstanding the fact that it is put into
effect from time to time and over a long
period of time as required.66
- Although the Appeals Chamber in the Milosevic case
dealt with a request for joinder pursuant to Rule
49 (joinder of crimes), it found that Rule 49 has
to be considered in conjunction with Rule 48 (joinder
of accused), because both are based upon acts committed
in the course of “the same transaction”,
as defined in Rule 2 of the Rules.67
- The very wide interpretation of the notion of “same
transaction” adopted
by the Appeals Chamber in the Milosevic case
leads the Trial Chamber to the conclusion that
the requirement of “same transaction” has been
met in this case as well. Indeed, the Appeals
Chamber decision makes it very difficult for any
Trial Chamber seized of a joinder request alleging
that the accused had a “common purpose” to conclude
that such a requirement has not been met, even
if the common purpose is a very broad and long-term
one.
- Accordingly, the Trial Chamber concludes that
in the present case, although the three Indictments
reveal differences in the formulation of the “common
purpose” of the alleged JCE, the counts and modes
of liability charged against each accused and the
time-frame and location of the crimes charged,
there is a sufficient nexus between them to satisfy
the “same transaction” requirement,
as that has been interpreted by the Appeals Chamber.
The “common purpose” alleged
in each of the three Indictments is formulated
in largely similar terms and suggests that the
accused were involved in a JCE aimed at removing
non-Serbs from certain areas through the commission
of crimes in violation of Articles 3 and 5 of the
Statute.
- In light of the foregoing, the Trial Chamber
holds that the crimes alleged in the Indictments
of Martic, Stanisic/Simatovic and Seselj were committed
in the course of the “same transaction” under Rule
2 and Rule 48 of the Rules and are therefore eligible
to be “jointly charged and tried.”
IV. DISCRETIONARY FACTORS
- The Trial Chamber will now examine and evaluate
the different factors to be taken into account
in exercising its discretion to grant or refuse
joinder. These factors include: (i) promoting judicial
economy; (ii) avoiding conflicts of interest that
might cause serious prejudice to the accused; (iii)
protecting the interests of justice, inter alia,
by safeguarding the rights of the accused to a
fair and expeditious trial; (iv) minimising hardship
to witnesses, and (v) ensuring consistency of verdicts.
Promoting Judicial Economy
- The Prosecution submits that a joint trial will
prevent duplication of evidence. According to the
Prosecution, one joint trial will be shorter than
the total period required for three separate trials,
and will save financial resources as it would allow
witnesses and experts to testify only once.68 The Prosecution also states
that it is willing to consider dropping certain
crime base allegations with a view to shortening
the trial.69
- All four accused, however, submit that a joint
trial will be long and inefficient.70 Stanisic argues that
if the cases are joined, it will be difficult to
find evidence suitable for submission under Rule 92bis because
of the different roles, acts and liability alleged
against each accused.71 Simatovic
argues that it will be difficult to reach an agreement
on any facts, as many facts may be only minimally
relevant to one accused while very relevant to
another.72 Seselj
argues that a joint trial may even increase the
amount of evidence, because each accused will have
to call more witnesses to defend himself in a joint
trial.73 And finally Stanisic and Simatovic
argue that a joint trial will also be costly.74
- The Prosecution estimates that if the three
trials were to take place separately, the total
number of Prosecution witnesses in the three cases
would be 329 (79 in the Martic case, 120 in the
Stanisic/Simatovic case and 130 in the Seselj case
), whereas in a joint trial, the number of Prosecution
witnesses would be reduced to 274.75
- Even assuming these figures are correct, out
of the 274 Prosecution witnesses who would be called
in a joint trial only one is common to all the
three cases for which joinder is sought. Only 29
witnesses are common to the cases of Martic and
Stanisic /Simatovic. Only 26 are common to the
cases of Seselj and Stanisic/Simatovic. And only
two are common to the cases of Martic and Seselj.76 Put another way, Martic
would be confronted with 195 witnesses of no relevance
to his case; Stanisic and Simatovic would be confronted
with 154 witnesses of no relevance to their case,
and Seselj would be confronted with 144 witnesses
of no relevance to his case.
- Furthermore, if only the cases of Martic and
Stanisic/Simatovic were joined, those accused would
be confronted with 170 Prosecution witnesses, only
29 of which would be in common, with 91 witnesses
being of no relevance to Martic’s
case, and 50 witnesses being of no relevance to
the Stanisic/Simatovic case. If only the cases
of Seselj and Stanisic/Simatovic were joined, those
accused would be confronted with 224 Prosecution
witnesses, only 26 of which would be in common,
with 94 witnesses being of no relevance to Seselj’s
case, and 104 witnesses being of no relevance to
the Stanisic’s/Simatovic’s case. Finally,
if only the cases of Martic and Seselj were joined,
those accused would be confronted with 207 Prosecution
witnesses, only two of which would be in common,
with 128 witnesses being of no relevance to Martic’s
case, and 77 witnesses being of no relevance to
Seselj’s case.
- These figures speak for themselves. They show
that although joinder will decrease to a limited
extent the total number of witnesses which the
Prosecution would call against the four accused,
it will also increase considerably the number of
witnesses called by the Prosecution against each
accused, and, as a consequence, the length of the
trial for each accused. This, in turn, means that
it is questionable whether there would be any saving
in the overall costs incurred in the event of a
joinder.77
- The Prosecution’s submission that a substantial
number of the Prosecution witnesses in the three
cases are proposed Rule 92bis witnesses,78 and that there are additional
common Prosecution witnesses who are proposed Rule 92bis witnesses
in one case and viva voce witnesses
in another does not change this conclusion.79 In
the Trial Chamber’s view, decisions on whether
evidence could be admitted pursuant to Rule 92bis are
to be taken at a later stage of the pre-trial process,
and it is not therefore in a position to give weight
to these submissions in the exercise of its discretion
in favour or against joinder.80
- In sum, the Trial Chamber finds that an assessment
of the factors relating to judicial economy militate
strongly against granting joinder.
Safeguarding the Rights of the Accused, including
the Avoidance of Conflicts of Interest
- The Prosecution submits that joinder of the
three cases will not interfere with the right of
the accused to a fair trial because joinder will
not lead to any significant delay (the three cases
are substantially ready for trial)81 and because a joint trial will
not give rise to any conflict of interests that
might cause prejudice to the accused.82
- Stanisic, Simatovic and Seselj, however, submit
that a joint trial will create conflicts of interest
among the accused.83 Moreover, all four accused submit
that a joint trial will prejudice their fair-trial
rights.84 The
four accused argue that the three cases are in
different stages of pre-trial preparation, and
that this means delays will result.85 Stanisic argues that further
delays may also be caused by his illness, as well
as Seselj’s self- representation and entitlement
to translation of all documents into B/C/S.86 All
four accused submit that if the cases are joined,
the accused will have to deal with a huge volume
of evidence that will cause the joint trial to
be unmanageable.87 Stanisic
and Seselj further argue that a joint trial may
also make it difficult to conduct a careful detailed
assessment of the alleged liability of each accused.88
- With respect to the alleged conflicts of interest,
the accused only argue in general terms that conflicts
may arise, but provide no support for a finding
that a joint trial would cause conflicts of interest
within the meaning of the Tribunal’s jurisprudence. According to this jurisprudence, conducting joint
trials, where co-accused may testify against each
other, does not per
se constitute a conflict of interests between
accused. Equally, the mere possibility of mutually
antagonistic defences does not in itself constitute
a conflict of interest capable of causing serious
prejudice. This is because trials at the Tribunal
are conducted by professional judges who are capable
of determining the guilt or innocence of each accused.89 In the Trial Chamber’s view,
therefore, no convincing argument has been advanced
by any of the accused as to the possibility of
a conflict of interests that would prohibit joinder.
- With respect to the right of an accused to be
tried without undue delay, the Trial Chamber will
consider each accused individually.
- Martic’s case has been ready for trial for some
time.90 In light of the fact that
Martic has been in detention for over 3 years
and 4 months, he is entitled to have his
trial begin with the shortest possible delay.
However, joinder is likely to lead to a
further delay in the start of a trial against
this accused, as well as to a more complex
and lengthy trial, with almost four times
as many Prosecution witnesses testifying
than if he were to be tried alone.
- Seselj has been in detention for over 2 years
and 7 months. His case is in a different pre-trial
stage from the cases of Martic and Stanisic/Simatovic,
and does not appear to be ready for trial.91 Therefore, although joinder may not significantly delay
the start of the trial against this accused, it
would still adversely affect the length of his
trial.
- Both Stanisic and Simatovic are on provisional
release.92 Their case is in a different
pre-trial stage from the cases of Martic
and Seselj.93 Therefore,
although a joinder may expedite the start
of a trial against Stanisic and Simatovic,
it would, as previously noted, adversely
affect the length of their trial.
- The Trial Chamber also notes Stanisic’s submission
that his illness and Seselj’s self-representation
may cause further delays. Other Trial Chambers
have recognised that an accused’s self-representation
and health problems may obstruct the proper and
expeditious conduct of a trial.94 However, it is currently not
possible to assess the difficulties that these
factors may cause in the future and their impact
on joinder. Therefore, the Trial Chamber finds
that these factors neither militate in favour nor
against joinder.
- In light of the foregoing, the Trial Chamber
concludes that although there is no basis for finding
that joinder would result in a conflict of interests,
there are strong grounds for concluding that joinder
would adversely affect Martic’s right to a fair
and expeditious trial without undue delay and that
joinder would prejudice the rights of all four
accused to a fair and expeditious trial.95 Although joinder may, to
some extent, expedite the start of the trial of
Stanisic and Simatovic, the Trial Chamber concludes
that this advantage does not outweigh the adverse
effect that joinder would have on all accused,
in that it will unduly prolong the length of a
joint trial.96 This
factor—safeguarding the rights of the accused—therefore
militates against joining the three cases.
Minimising Hardship to Witnesses
- The Prosecution argues that a joint trial will
minimise the hardship to common witnesses, many
of whom would otherwise be required to give testimony
in more than one trial, and that this will enhance
their protection.97
- Stanisic, however, claims that the aim of protecting
witnesses and minimising their hardship is offset
by the fact that there is only a limited number
of common crime base witnesses.98 Simatovic
argues that in a joint trial witnesses will have
to face cross-examination by several counsel consecutively
in one trial.99 Seselj adds that a joinder will
increase the discomfort of non-common witnesses
because their identity will be revealed to all
four accused.100
- According to this Tribunal’s jurisprudence,
protecting and minimising hardship to witnesses
is a factor that may or may not favour joinder
depending on the circumstances of the case.101 In
many cases joinder can minimise hardship to common
witnesses because having a single trial means that
witnesses will not need to travel to The Hague
and give direct testimony more than once. However,
in the current case there is only one witness who
is common to all three cases and 54 witnesses that
are common to two of the three cases. If joinder
were refused, this relatively limited number of
common witnesses would indeed have to travel to
The Hague more than once. However, it is also possible
that witnesses would be exposed to consecutive
cross-examination by each accused. At any rate,
where, as here, the number of common witnesses
is so limited, the factor of minimising hardship
to witnesses does not clearly militate in favour
of a joinder.
Consistency in Evaluation of Evidence, Verdicts
and Sentences
- The Prosecution submits that a joint trial will
ensure a consistent approach to the evaluation
of evidence, and will ensure uniformity in verdicts
and sentences.102 Stanisic
and Seselj, however, submit that the aim of achieving
consistent verdicts and punishments has no validity
when there is very little overlap in the criminal
enterprise alleged against each accused.103
- The Trial Chamber is aware that a joint trial
can ensure a consistent approach regarding the
evaluation of evidence, verdicts and sentences.104 However, the Trial Chamber
is of the opinion that this factor would be more
relevant if the overlap between the cases whose
joinder is sought were significant. In the present
case, where there is only limited overlap between
the crime bases of the Indictments and the witnesses
to be called, the relevance of this factor is very
limited, and consequently it does not support a
finding that joinder should be granted.
V. CONCLUSION
- The Trial Chamber concludes that none of the
factors that have been taken into account —judicial
economy, conflicts of interest and rights of the
accused, minimizing hardship for witnesses and
consistency in verdicts—militate in
favour of a joinder. Indeed, the factors of judicial
economy and rights of the accused argue strongly
against a joinder because joinder would substantially
increase the length of each accused’s trial and
in Martic’s case further
delay its commencement. Accordingly, the Trial
Chamber decides to refuse the request for joinder,
and to leave the three cases to be tried separately.
VI. DISPOSITION
- For the foregoing reasons, and pursuant to Rule
48 of the Rules, this Trial Chamber hereby orders
as follows:
i. The Accused Stanisic is granted leave to file
a response to the Joinder Motion which exceeds
the page limit;
ii. The Prosecution is granted leave to file
a consolidated reply to the responses of Stanisic
and Simatovic to the Joinder Motion;
iii. The Joinder Motion is denied.
Done in English and French, the English version
being authoritative.
Dated this 10th day of November
2005,
At The Hague,
The Netherlands.
_________________________
Judge Patrick Robinson
Presiding
[Seal of the Tribunal]
1 - This Trial Chamber was composed
following orders issued by the President of the Tribunal appointing Judges
Robinson, Agius and Liu to constitute the Trial Chamber for the purpose of
determining the Prosecution Motions for Joinder of the cases of Prosecutor
v. Milan Martic, Prosecutor v. Jovica Stanisic
and Franko Simatovic and Prosecutor
v. Vojislav Seselj. See Prosecutor v. Vojislav
Seselj, Case No. IT-03-67-PT,
Order Reassigning a Case to a Trial Chamber, 7 June 2005; Prosecutor
v. Vojislav Seselj, Case No. IT-03-67-PT, Addendum to Order Reassigning a Case to a Trial
Chamber, 8 June 2005; Prosecutor v. Vojislav
Seselj, Case No. IT-03-67-PT,
Order Reassigning a Case and Referring the Joinder Motion, 4 July 2005; Prosecutor
v. Milan Martic, Case No. IT-95-11-PT, Order Reassigning a Case to a Trial
Chamber, 7 June 2005; Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Order
Reassigning a Case to a Trial Chamber and Referring the Joinder Motion, 4
July 2005; and Prosecutor v. Jovica Stanisic
and Franko Simatovic, Case No.
IT-03-69-PT, Order Referring the Joinder Motion, 7 July 2005.
2 - Prosecutor
v. Milan Martic, Case No. IT-95-11-PT, Prosecution Motion for Joinder, 30 May 2005; Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Prosecution Motion
for Joinder, Partly Confidential, 1 June 2005; and Prosecutor
v. Vojislav Seselj,
Case No. IT-03-67-PT, Prosecution Motion for Joinder, Partly Confidential, 19
July 2005.
3 - The Prosecution mentions that
it also contemplates joining the accused Hadzic, who is currently at large.
Joinder Motion, para. 1.
4 -
Prosecutor v. Milan Martic, Case No. IT-95-11-PT,
Indictment, 24 July 1995; Prosecutor v. Milan
Martic,
Case No. IT-95-11-PT, Amended Indictment, 18 December
2002; and Prosecutor v. Milan Martic, Case No.
IT-95-11-PT, Amended Indictment, 9 September 2003
(“Martic Indictment”). See also Prosecutor v.
Milan Martic, Case No. IT-95-11-PT,
Order for Review in Open Court of the Indictment by the Trial Chamber I (Rule
61 of the Rules of Procedure and Evidence), 13 February 1996; Prosecutor
v. Milan Martic, Case No. IT-95-11-PT, Decision, 8 March 1996; Prosecutor
v. Milan Martic, Case No. IT-95-11-PT, Decision on the Prosecution’s
Motion to Request Leave to File a Corrected Amended
Indictment, 13 December 2002; Prosecutor v. Milan
Martic, Case No. IT-95-11-PT, Decision on Review
of Indictment, 1 May 2003; Prosecutor v. Milan
Martic, Case No. IT-95-11-PT, Decision on Preliminary
Motion Against the Amended Indictment, 2 June 2003;
and Prosecutor v. Milan Martic, Case No. IT-95-11-PT,
Decision on Prosecution Motion to File Amended
Indictment and on Second Motion against the Amended
Indictment, 5 September 2003.
5 - Martic Indictment, paras.
21, 25, 38, 42, 47 and 49 and counts 1-19. The reference in the Joinder Motion
to SAO Western Slavonia, SAO Eastern Slavonia, Baranja and Western Srem seems
to be an error on the part of the Prosecution. Joinder Motion, para. 3.
6 - Prosecutor
v. Milan Martic,
Case No. IT-95-11-PT, Decision on the Motion for Provisional Release, 10
October 2002; Prosecutor v. Milan Martic, Case No. IT-95-11-AR65, Decision
on Application for Leave to Appeal, 18 November 2002; and Prosecutor
v. Milan Martic, Case No. IT-95-11-PT, Decision on Second Motion for Provisional Release,
12 September 2005.
7 - Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Indictment, 1 May 2003; and Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Amended Indictment,
9 December 2003 (“Stanisic/Simatovic Indictment”). See
also Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Decision on Review
of Indictment, 1 May 2003; Prosecutor v. Jovica
Stansic and Franko Simatovic,
Case No. IT-03-69-PT, Decision on Defence Preliminary Motions, 14 November
2003; and Prosecutor v. Jovica Stanisic and
Franko Simatovic, Case No. IT-03-69-PT,
Decision on Submission of Amended Indictment; Defence Preliminary Motion
(Jovica Stanisic); and Motion on Defect in the Amended Indictment (Franko
Simatovic), 29 January 2004.
8 - Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Prosecution Motion for Leave
to Amend the Amended Indictment, Partly Confidential with Ex
Parte Supporting
Materials, 6 May 2005 (“Stanisic/Simatovic Proposed Amended Indictment”).
9 - Stanisic/Simatovic Indictment,
paras. 19, 23, 59 and counts 1-5; and Joinder Motion, para. 6.
10 - Prosecutor
v. Jovica Stanisic,
Case No. IT-03-69-PT, Decision on Provisional Release, 28 July 2004; and
Prosecutor v. Franko Simatovic, Case No. IT-03-69-PT, Decision on Provisional
Release, 28 July 2004.
11 - Prosecutor
v. Jovica Stanisic,
Case No. IT-03-69-AR65.1, Decision on Prosecution’s Appeal Against Decision
Granting Provisional Release, 3 December 2004; and Prosecutor
v. Franko Simatovic,
Case No. IT-03-69-AR65.2, Decision on Prosecution’s Appeal Against Decision
on Provisional Release, 3 December 2004.
12 - Prosecutor
v. Vojislav Seselj,
Case No. IT-03-67-PT, Indictment, 15 January 2003;
and Prosecutor
v. Vojislav Seselj, Case No. IT-03-67-PT, Modified
Amended Indictment, 12 July 2005 (“Seselj Indictment”).
See also Prosecutor v. Vojislav Seselj, Case No.
IT-03-67-PT, Confirmation of Indictment and Order
for the Warrant for Arrest and Surrender, 14 February
2003; Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT,
Decision on Motion by Vojislav Seselj, Challenging
Jurisdiction and Form of Indictment, 26 May 2004;
Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT,
Decision on Validity of Appeal of Vojislav Seselj
Challenging Jurisdiction and Form of Indictment,
29 July 2004; Prosecutor v. Vojislav Seselj, Case
No. IT-03-67-PT, Decision on Prosecution’s Motion
for Leave to Amend the Indictment, 27 May 2005;
and Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT,
Decision on Corrigendum to the Amended Indictment
Annexed to the Prosecution’s Motion
for Leave to Amend the Indictment, 8 July 2005.
13 - Seselj Indictment, paras.
6, 15, 18, 28-29, 31, 34 and counts 1-14; and Joinder Motion, para. 9.
14 - Prosecutor
v. Vojislav Seselj,
Case No. IT-03-67-PT, Decision on Defence Motion for Provisional Release,
23 July 2004.
15 - Prosecutor
v. Vojislav Seselj, Case No. IT-03-67-PT, Decision
on Prosecution’s Motion for Order Appointing
Counsel to Assist Vojislav Seselj with His Defence,
9 May 2003; and Prosecutor v. Vojislav Seselj, Case
No. IT-03-67-PT, Decision on Request of the Accused
to Revoke the Ruling of the Trial Chamber to Appoint
Standby Counsel (Submissions number 81, 82 and 84),
3 May 2005.
16 - Prosecutor
v. Milan Martic,
Case No. IT-95-11-PT, Response to Prosecution’s Motion for Joinder, 13 June
2005 (“Martic Response”).
17 - Stanisic filed a motion
for leave to file a response to the Joinder Motion which exceeds the page
limit. The Trial Chamber grants the motion and takes all the submissions
raised in Stanisic’s response into consideration. Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Defence Request for Leave to
File a Response to Prosecution Motion for Joinder Which Exceeds the Page
Limit, 28 June 2005; Prosecutor v. Jovica Stanisic
and Franko Simatovic,
Case No. IT-03-69-PT, Defence Response to the Prosecution Motion for Joinder
(Dated 1st June 2005), 29 June 2005; and Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Defence Response to Prosecution Motion
for Joinder, 29 June 2005 (“Stanisic Response” and “Simatovic Response”).
18 - Prosecutor
v. Vojislav Seselj,
IT-03-67-PT, Submission by Dr. Vojislav Seselj Opposing the Prosecution Motion
for Joinder of Cases, 29 August 2005 (“Seselj Response”).
19 - Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Prosecution’s Request for Leave
to File a Consolidated Reply, with Prosecution’s Consolidated Reply to Jovica
Stanisic and Franko Simatovic’s Reponses to the Prosecution Motion for Joinder
Annexed Thereto, 5 July 2005.
20 - Prosecutor
v. Momir Nikolic et al., Case No. IT-02-53-PT,
IT-02-56-PT, Decision on Prosecution's Motion for Joinder,
17 May 2002, para. 14; Prosecutor v. Zeljko Meakic
et al., Case No. IT-95-4-PT, IT-95-81-PT, Decision
on Prosecution's Motion for Joinder of Accused, 17
September 2002, para. 24; Prosecutor v. Radoslav
Brdjanin and Momir Talic, Case No. IT-99-36-A,
Decision on Request to Appeal, 16 May 2000; and Prosecutor
v. Vujadin Popovic et al., Case No. IT-02-57-PT, IT-02-58-PT,
IT-02-63-PT, IT-02-64-PT, IT-04-80-PT, IT-05-86-PT,
Decision on Motion for Joinder, 21 September 2005,
para. 8.
21 - Prosecutor
v. Slobodan Milosevic,
Case No. IT-99-37-PT, IT-01-50-PT, IT-01-51-PT, Decision on Prosecution’s
Motion for Joinder, 13 December 2001, para. 37; Prosecutor
v. Vidoge Blagojevic et al., Case No. IT-98-33/1-PT,
IT-01-43-PT, IT-01-44-PT, Written Reasons Following
Oral Decision of 15 January 2002 on the Prosecution's
Motion for Joinder, 16 January 2002, para. 17; Prosecutor
v. Momir Nikolic et al., supra note
20, para. 13; Prosecutor v. Zeljko Meakic et
al., supra note 20, paras. 23-24; and Prosecutor
v.Vujadin Popovic et al, supra note 20, para. 8.
22 - Joinder Motion, para. 23.
23 - Ibid, paras. 23-24 and 35;
and Prosecution Reply, paras. 8-16.
24 - Joinder Motion, paras. 23-27;
and Prosecution Reply, paras. 4-5.
25 - Prosecution Reply, para.
4.
26 - The Prosecution refers to
certain statements in the pre-trial briefs in support of this submission.
See Joinder Motion, para. 24; and Prosecution Reply, paras. 8-16.
27 - Joinder Motion, paras. 24-25.
28 - Ibid, paras. 28-33.
29 - Prosecution Reply, para.
18.
30 - Joinder Motion, paras. 1
and 35 citing Prosecutor v. Slobodan Milosevic, Case No. IT-99-37-AR73, IT-01-50-AR73,
IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal From
Refusal to Order Joinder, 13 December 2001, para. 21.
31 - Prosecution Reply, paras.
7-8
32 - Joinder Motion,
para. 21 referring to Prosecutor v. Radoslav Brdjanin
and Momir Talic, Case No. IT-99-36-PT,
Decision on Motions by Momir Talic for a Separate
Trial and for Leave to File a Reply, 9 March 2000,
para. 20.
33 - Stanisic Response, paras.
10, 21 and 25; Simatovic Response, paras. 3 and 15-16; and Seselj Response,
para. 18.
34 - Martic Response, para. 3.
35 - Stanisic Response, paras.
4, 6, 8, 10 and 12; Simatovic Response, para. 15; and Seselj Response, paras.
12-13, 16 and 18.
36 - Stanisic Response, paras.
7 and 11-18.
37 - Stanisic Response, paras.
4-6.
38 - Stanisic Response, paras.
17-26; and Seselj Response, para. 17.
39 - Stanisic Response, paras.
18-20, 22 and 24.
40 - Stanisic Response, para.
35; and Simatovic Response, para. 16.
41 - Stanisic Response, para.
27.
42 - Stanisic Response, paras.
4, 13 and 28; Simatovic Response, paras. 16 and 18-21; Martic Response, para.
5; and Seselj Response, para. 19. See
also infra, paras. 24-25.
43 - Rules 2 and
48 of the Rules,
Prosecutor v. Slobodan Milosevic, supra note
30, paras. 20-21; Prosecutor
v. Radoslav Brdjanin and Momir Talic, supra note
32, para. 20; and Prosecutor v. Ntakirutimana
et al., ICTR 96-10-I and ICTR 96-17-T, Decision on
the Prosecutor’s
Motion to Join the Indictments, February 22, 2001.
44 - Joinder Motion, paras. 23-24;
and Prosecution Reply, paras. 4-5 and 7-15.
45 - Firstly, the Indictments
against Stanisic/Simatovic and Seselj refer to “permanent removal”, while
the Indictment against Martic refers only to “removal”. Secondly, the Indictments
against Seselj and Martic refer to the “removal of non-Serbs from approximately
one third of the territory of Croatia and large parts of BiH”, while the
Indictment against Stanisic/Simatovic refers to their “removal from large
areas of Croatia and BiH”. Thirdly, the Indictments against Martic and Seselj
indicate that the removal of non-Serbs was done “through commissions of crimes
under articles 3 and 5 of the ICTY Statute”, while the Indictment against
Stanisic/Simatovic refers to “commissions of crimes of Persecutions, Murder,
Deportations and Inhumane acts (forcible transfers)”. Moreover, the Indictments
against Martic and Seselj allege that the purpose of the JCE was to make
the areas mentioned in the Indictments part of a new Serb-dominated state,
while the Indictment against Stanisic/Simatovic does not refer to such a
purpose. Lastly, only the Indictment against Seselj refers to the removal
of non-Serbs from parts of Vojvodina (Serbia). Joinder Motion, paras. 23
and 26-27.
46 - Martic Indictment, counts
1, 3, 4, 10-11 and 15-18; Stanisic/Simatovic Indictment, counts 1-5; and
Seselj Indictment, counts 1, 3-4 and 10-11.
47 - Martic Indictment, counts
2, 5-9 and 12-14; and Seselj Indictment, counts 2, 5-9 and 12-14.
48 - Martic Indictment, count
19. Moreover, although the counts charged against Martic and Seselj may largely
be similar, they are related to different events.
49 - Martic Indictment, para.
3; Stanisic/Simatovic Indictment, para. 8; and Seselj Indictment, para. 5.
50 - Seselj Indictment, para.
5.
51 - Martic Indictment, paras.
3 and 9.
52 - Martic Indictment, paras.
6 and 21; Stanisic/Simatovic Indictment, paras. 11 and 19; and Seselj Indictment,
paras. 8 and 15.
53 - Martic Indictment, paras.
21, 25-34, 39, 42, 44 and 47; and Stanisic/Simatovic Indictment, paras. 19
and 23-32.
54 - Stanisic/Simatovic Indictment,
paras. 19, 23, 33, 42-48, 57 and 59; and Seselj Indictment, paras. 15, 17-18,
20-23, 25, 29, 31 and 34.
55 - Martic Indictment, paras.
21, 25, 38-39, 42, 47 and 49.
56 - The allegations with respect
to Mrkonjic Grad were omitted from the Stanisic/Simatovic Proposed Amended
Indictment.
57 - Stanisic/Simatovic Indictment,
paras. 19, 49-56 and 59. The Prosecution seeks to amend the Indictment to
include certain events in Srebrenica, which is not a common crime base. Stanisic/Simatovic
Proposed Amended Indictment, paras. 19, 23, 55-65 and 68.
58 - Seselj Indictment, paras.
15, 16, 18-19, 24, 24, 26-27, 29, 31 and 34.
59 - The Trial Chamber is aware
that the Seselj Indictment refers to crimes that are alleged to have been
committed in the Republic of Serbian Krajina (“RSK”), and alleges that on
19 December 1991 the SAO Krajina proclaimed itself the RSK and on 26 February
1992 the SAO Western Slavonia, SAO SBWS and the Dubrovnik Republic joined
the RSK. This, however, does not change the Trial Chamber’s conclusion that
there is no overlap between the geographical location of crimes alleged in
the Indictments of Martic and Seselj. Seselj Indictment, para. 6.
60 - Prosecutor
v. Slobodan Milosevic, supra note 30, paras. 19-21.
61 - Prosecutor
v. Slobodan Milosevic, supra note 21, para. 45.
62 - Prosecutor
v. Slobodan Milosevic, supra note 21, paras. 45-46.
63 - Prosecutor
v. Slobodan Milosevic, supra note 30, paras. 19-20.
64 - Ibid, paras. 19-21.
65 - Ibid. para. 20.
66 - Ibid, para. 21.
67 - Ibid, para. 13.
68 - Joinder Motion, paras. 36-40.
69 - Prosecution Reply, para.
18; and Prosecutor v. Jovica Stanisic and Franko
Simatovic, Case No. IT-03-69-PT,
Rule 65ter Conference, T. 245, 27 September 2005 (“Rule 65ter Conference”).
70 - Stanisic Response, paras.
33-37; Simatovic Response, paras. 17-18, 24 and 26; Martic Response, paras.
4-5, 7 and 13; and Seselj Response, paras. 8 and 20.
71 - Stanisic Response, para.
32.
72 - Simatovic Response, para.
25.
73 - Seselj Response, para. 8.
74 - Stanisic Response, para.
36; and Simatovic Response, para. 25.
75 - This estimate is slightly
different from the one given by the Prosecution in the Rule 65ter Conference.
See T. 267.
76 - Joinder Motion,
paras. 37-38; and Rule 65ter Conference, T. 267.
77 - For example, it seems that
because a joinder would extensively prolong the length of the trial for each
of the accused, it would also lead to additional costs for such issues as
legal aid, to the extent that the accused have shown eligibility for the
payment of such aid.
78 - Rule 65ter Conference, T.
267; and Prosecution Reply, para. 18.
79 - Joinder Motion, para. 38.
80 - The Prosecution also submits
that it is willing to consider dropping certain crime base allegations. However,
the Trial Chamber observes that no further indication is given of allegations
it might be willing to drop and that the Prosecution has not stated that
it will in fact do so should joinder be ordered.
81 - Joinder Motion, para. 43;
and Prosecution Reply, paras. 19-20.
82 - Joinder Motion, paras. 43-44
83 - Stanisic Response, paras.
41 and 44; Simatovic Response, para. 22; and Seselj Response, para. 9.
84 - Martic Response, para. 12;
Stanisic Response, paras. 50-58; Simatovic Response, paras. 5, 22 and 26;
and Seselj Response, para. 20.
85 - Stanisic Response, paras.
52-54; Simatovic Response, paras. 5-8 and 26; Martic Response, paras. 8-12;
and Seselj Response, paras. 8 and 14.
86 - Stanisic Response, paras.
45-49.
87 - Martic Response, para. 13;
Stanisic Response, paras. 40 and 42-44; Simatovic Response, para. 18; and
Seselj Response, paras. 14 and 20.
88 - Stanisic Response, para.
40; and Seselj Response, para. 20.
89 - Prosecutor
v. Ndayambaje,
Case No. ICTR-96-8-T, Decision on the Defence Motion
for a Separate Trial, 25 April 2001, para. 11; Prosecutor
v. Brdjanin and Momir Talic, Case No.
IT-99-36-T, Decision on Prosecution’s Oral Request
for the Separation of Trials, 20 September 2002,
para. 21 citing Prosecutor v. Simic et al., Case
No. IT-95-9-PT, Decision on Defence Motion to Sever
Defendant and Counts, 15 March 1999; and Prosecutor
v. Vujadin Popovic et al., supra note 20, para.
32.
90 - Both the Prosecution and
the Defence submitted their pre-trial briefs on 7 May 2004 and 1 November
2004, respectively. Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Partially
Confidential Prosecution’s Pre-Trial Brief, 7 May 2004; and Prosecutor
v. Milan Martic, Case No. IT-95-11-PT, Defence’s Pre-Trial Brief Pursuant to
Rule 65ter(F) (with a Confidential Annex), 1 November 2004.
91 - As previously noted, the
Seselj Indictment was amended on 12 July 2005. However, the Prosecution did
not amend its pre-trial brief and the Defence did not submit a pre-trial
brief. Prosecutor v. Vojislav Seselj, supre note 12; and Prosecutor
v. Vojislav Seselj, Case No. IT-03-67-PT, Prosecution’s Pre-Trial Brief, 28 October 2004.
92 - Prosecutor
v. Jovica Stanisic, supra note 10; Prosecutor
v. Franko Simatovic, supra note 10; Prosecutor
v. Jovica Stanisic, supra note 11; and Prosecutor
v. Franko Simatovic, supra note 11.
93 - As previously noted, on
6 May 2005 the Prosecution filed a motion for leave to amend the amended
Indictment. Prosecutor v. Jovica Stanisic and
Franko Simatovic, supra note
8.
94 - Regarding the
issue of self representation see Prosecutor v. Slobodan
Milosevic, Case No. IT-02-54-AR73.7,
Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on the Assignment of Defence Counsel,
1 November 2004, para. 13; and Prosecutor
v. Momcilo Krajisnik, Reasons for Oral Decision
Denying Mr Krajisnik’s Request to Proceed
Unrepresented by Counsel, 18 August 2005, paras.
24 and 33. Regarding the issue of health-related
difficulties see Prosecutor
v. Radoslav Brdjanin and Momir Talic, supra note
89.
95 - Articles 20(1) and 21(4)(c)
of the Statute. The Tribunal’s jurisprudence recognised that the right to
an expeditious trial is an inseparable and constituent element of the right
to a fair trial. Prosecutor v. Miroslav Kvocka
et al., Case No. IT-98-30/1-AR73.5,
Decision on Interlocutory Appeal by the Accused
Zoran Zigic Against the Decision of Trial Chamber
I Dated 5 December 2000, 25 May 2001, para. 20.
96 - The Trial Chamber notes
that the European Court of Human Rights (“ECtHR”) and the United Nations
Human Rights Committee have taken various decisions on what may constitute
'unreasonable time' or 'undue delay'. Among these decisions are Ledonne
(No. 2) v. Italy, ECtHR, 12 May 1999, para. 23; Majaric
v. Slovenia, ECtHR, 8
February 2000, paras. 33-39; and Pélissier v. France, ECtHR, 25 March 1999,
paras. 67 and 74. Communication No. 336/1988: Bolivia, UN Doc. CCPR/C/43/D/336/1998,
6 November 1991, para. 6.5.
97 - Joinder Motion, para. 40;
and Prosecution Reply, paras. 23-24.
98 - Stanisic Response, para.
38.
99 - Simatovic Response, para.
24.
100 - Seselj Response, para.
19.
101 - Prosecutor
v. Vujadin Popovic et al., supra note 20, para. 25.
102 - Joinder Motion, paras.
41-42; and 54 and Prosecution Reply, para. 26.
103 - Stanisic Response, paras.
33-37 and 39; and Seselj Response, para. 19.
104 - Prosecutor
v. Vujadin Popovic et al., supra note 20, para. 27.
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