13. Rule 49 (“Joinder of Crimes”) has necessarily to be considered in conjunction with Rule 48 (“Joinder of Accused”), as each is based upon events which must form “the same transaction”. That phrase is defined in Rule 2. [...]

[...]

17. The words in the English version of Rule 49 [...] may also reasonably be interpreted as “if the series of acts committed [by the accused] together [in the sense of ‘considered together as a whole’] form the same transaction”. Such an interpretation would be fully consistent with the French version, and there would be no discrepancy between the two versions, or inconsistency with the definition of “transaction” in Rule 2 or with Rule 48, such as is produced by the interpretation which the Trial Chamber adopted.

See also paras 13-16 for a discussion of the discrepancies between the English and French versions of Rule 49.

17. The state of Mr. Ngirumpatse’s health and his prognosis for recovery lie at the core of the Trial Chamber’s decision to deny the request for a further stay of proceedings and instead to sever him from the case. In refusing to order a further stay, the Trial Chamber dismissed as “highly speculative” Mr. Ngirumpatse’s claim that his health might sufficiently improve within three months to allow him to more actively participate in his defence from his hospital bed.[1] […]

18. Rule 82(B) of the Rules provides that a “Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” In severing Mr. Ngirumpatse, the Trial Chamber concluded principally that there was a conflict of interests among the Appellants as a result of the prejudice Mr. Karemera and Mr. Nzirorera would suffer if the proceedings were stayed until Mr. Ngirumpatse became fit to attend trial.[2] The Trial Chamber noted that, “according to the doctor’s assessment”, Mr. Ngirumpatse “will, in the best case, not be fit to attend trial before nine months.”[3] The Trial Chamber also considered the interests of justice, namely, the interests of the victims and the international community that trials concerning serious crimes be completed without unnecessary delays.[4] It also noted that severance “significantly serves judicial economy”.[5]

19. The Appeals Chamber notes that, in practice, Trial Chambers generally consider various professional opinions before taking an important procedural decision arising from an accused’s medical condition which may impact the course of a trial.[6] In this respect, Rule 74bis of the Tribunal’s Rules of Procedure and Evidence (“Rules”) expressly provides that “a Trial Chamber may, proprio motu or at the request of a party, order a medical […] examination of the accused.”

20. In the present case, the Trial Chamber relied exclusively on the assessment of the Tribunal’s Chief Medical Officer.[7] As a preliminary matter, the Appeals Chamber finds no merit in Mr. Nzirorera’s submission that the Trial Chamber erred in not requiring the Chief Medical Officer to take the oath prescribed for witnesses in Rule 90(B) of the Rules.[8] The Chief Medical Officer did not appear as a witness, rather, her assessment, like other information submitted by the witness protection or defence counsel management section, is akin to a submission under Rule 33(B) of the Rules.

22.     It is appropriate to take proper account of an assessment made by the Chief Medical Officer and, in some cases, to rely exclusively on it. However, the Appeals Chamber considers that particular care is warranted where, as here, the assessment is provisional and lacking in detail, is disputed by the parties, and plays a significant role in the Trial Chamber’s assessment of prejudice. The Appeals Chamber also observes that the Trial Chamber had no specific information concerning the nature of Mr. Ngirumpatse’s medical problem. While a Trial Chamber may adopt reasonable measures to protect the privacy interests of an accused, these measures cannot serve to deprive it of information essential to reaching an informed decision. In view of the foregoing, the Appeals Chamber finds that, in this instance, the Trial Chamber reached its conclusions on prejudice without having assessed all relevant factors. It therefore committed a discernible error in the exercise of its discretion. […]

The Appeals Chamber recalled the definition of the “same transaction” under Rule 2 of the Rules. It then set out the factors that a Trial Chamber may consider in deciding whether to join two or more accused in one case:

7. The Appeals Chamber considers that pursuant to Rule 48 of the Rules, “persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.” Thus, the fundamental question for the Trial Chamber under Rule 48 is whether the two or more persons at issue for possible joinder in one trial are charged with: (1) having committed crimes, regardless of whether those crimes are alleged to be the same crimes, (2) “in the course of the same transaction.” A transaction is defined under 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.” Pursuant to Rule 2 therefore, a common scheme, strategy or plan includes one or a number of events at the same or different locations.[1] Furthermore, there is no requirement under Rules 2 and 48 that the events constituting the “same transaction” take place at the same time or be committed together.[2] The Appeals Chamber agrees with the Trial Chamber that “[i]n deciding whether charges against more than one accused should be joined pursuant to Rule 48, the Chamber should base its determination upon the factual allegations contained in the indictments and related submissions.”[3]

8. Where a Trial Chamber finds that two or more persons have allegedly committed crimes in the course of the same transaction, it then considers various factors, which it weighs in the exercise of its discretion as to whether joinder should be granted. Rule 82 (A) provides that “[i]n joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.” The rights of an accused at trial are explicitly listed under Article 21 of the Statute of the International Tribunal. Rule 82(B) further provides that a Trial Chamber “may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” Therefore, in light of Rule 82, it is appropriate for a Trial Chamber deciding whether to join two or more accused into one case pursuant to Rule 48 to take into consideration and weigh the following: (1) protection of the rights of the accused pursuant to Article 21 of the Statute; (2) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (3) protection of the interests of justice. A Trial Chamber may, of course, look to other factors in its discretion, which it deems important for considering whether joinder under Rule 48 would be appropriate. For example, in this case, in addition to weighing the first two factors mentioned previously, the Trial Chamber also considered that a single trial would better ensure the interests of justice by (1) avoiding the duplication of evidence; (2) promoting judicial economy; (3) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (4) ensuring consistency of verdicts.[4]

See also Pandurević Decision on Joinder of Accused, paras 7-8.

The Appellant was arguing that his right to an expeditious trial pursuant to Article 21(4)(c) of the Statute would be infringed by a joinder of cases.  The Appeals Chamber most importantly held that “[i]t is well within the Trial Chamber’s discretion to take into consideration judicial economy when determining whether joinder would be appropriate” (para. 26). 

At paragraphs 61 to 62, the Appeals Chamber found that, in the case of joinder of cases (and not a joinder of charges), the indictments do not become a unified document. The facts underlying a charge in one indictment against one of the accused cannot be used to support a charge in the indictment against another accused; each of the individual indictments has to meet the standard developed in the jurisprudence regarding the necessary content of the indictments; the Prosecution cannot rely on the indictment against one of the accused to remedy defects in the indictment against another accused:

61.     The Prosecution further argues that reading the Indictments separately with regard to the factual allegations “negates the rationale for creating the joinder in the first place”. This argument cannot prosper. It is not self-evident that distinct indictments should be read together as a whole, in case of a joinder. In joint trials, each accused shall be accorded the same rights as if he were being tried separately. The Prosecution thus remains under an obligation to plead, in each indictment brought, the material facts underpinning the charges against each accused. The Prosecution’s argument that the Indictment “became, in law, a single indictment” is dismissed. It was up to the Prosecutor to submit a new, joint and single Indictment against the three Accused.

62.     For these reasons, the Appeals Chamber finds that the Prosecution’s argument that the Indictments should have been read together as a whole is without merit. Insofar as the Appeals Chamber concludes that the Trial Chamber did not err by refusing to read the Indictments together, it is not necessary to examine the effect that a combined reading of the two Indictments might have had.

Čermak argued that by considering the amendment of the indictment together with the issue of joinder the Trial chamber skipped the indictment amendment procedure, preventing the defence from being heard and opposing the process of the amendment, and therefore violates the principle of a fair trial. The Appeals Chamber, however, held at para. 11:

11. […] First, Čermak fails to provide a basis in the Rules or in the jurisprudence of the International Tribunal in support of the proposition that it is required procedure for a Trial Chamber to consider amendments to the indictment first, separate from deciding on the issue of joinder. Furthermore, Čermak fails to demonstrate how addressing both issues together in one decision inevitably leads to a Trial Chamber skipping the appropriate analysis under Rule 50 of the Rules for determining whether proposed amendments to an indictment should be granted under the principle of a fair trial. […] 

Čermak and Gotovina alleged that, in a joint trial, there is a potential for different defence theories between themselves resulting in different declarations regarding certain facts and thus giving rise to serious prejudice. The Appeals Chamber, however, held differently at para. 37:

The Appeals Chamber agrees with the Trial Chamber that “[a] joint trial does not require a joint defence, and necessarily envisages the case where each accused may seek to blame the other.”[1] Likewise, the Appeals Chamber agrees that “the mere possibility of mutually antagonistic defences does not in itself constitute a conflict of interests 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.”[2]

The Appeals Chamber noted the Trial Chamber’s consideration of the Prosecution’s position that “most [of its] witnesses for the two cases are identical and likely need to be called for both trials”.[1] Consequently, the Appeals Chamber found that there will be lesser hardship for some witnesses if only one trial is held and that this should weigh in favour of joinder.[2]  Moreover, if some witnesses are specific for charges alleged with regard to just one of the appellants, it is unlikely that they will suffer hardship by being cross-examined by each Appellant for a total of three times.  In any event, as previously noted by the Appeals Chamber, under Rule 90(F) of the Rules, the Trial Chamber can mitigate any potential burden to a witness caused by consecutive cross-examination because it “has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination” subject to the obligation to respect the rights of the accused.[3]

29.     The Appeals Chamber considers that in light of the specific circumstances of the case, the prolongation of Ntabakuze’s appeal by approximately ten months does not amount to an undue delay capable of causing serious prejudice. The trial proceedings were highly complex, encompassing a vast amount of alleged crimes in different locations, and corresponding evidence assessed at trial. All three co-Appellants were high-ranking military staff and were convicted for a number of crimes for which they received substantial sentences. It can be expected that the Appeals Chamber will have to assess a large amount of different grounds of appeal of all co-Appellants, encompassing a variety of issues.

30.     The Appeals Chamber further considers that Ntabakuze fails to substantiate how the delay could infringe on his right to make his appeal submissions adequately. Likewise, he fails to demonstrate how the fact that the Prosecution would de facto have 11 months to respond instead of the statutory 40 days would cause him prejudice serious enough to warrant the severance of his case.

42.     The Appeals Chamber finds that it was open to the Prosecution to rely on paragraph (C)(1)(b) of the Practice Direction for the determination of the scheduling deadline. The Appeals Chamber agrees that paragraph (C)(1)(b) of the Practice Direction authorizes the Prosecution to elect to file a consolidated response brief in cases involving a plurality of co-accused without first obtaining leave from the Appeals Chamber to do so.[5] The finding of the Appeals Chamber in Hadžihasanović was, contrary to Ntabakuze’s contention, of a general nature and is further reflected in the Pre-Appeal Judge’s express finding that “under the Practice Direction on the Length of Briefs and Motions on Appeal of 8 December 2006, the Prosecution may elect to file a consolidated brief in response to all three appeal briefs” and that the time-limit for the filing of such brief would only run from the filing date of the last appeal brief in this case.[6] The wording of paragraph (C)(1)(b) specifies and further defines the provision of Rule 112(A) of the Rules in the event of a plurality of accused. […]

44.     Rules 108, 111, and 112 of the Rules establish an equilibrated system for the appellant and the respondent regarding the timetable for filing their submissions, according an appropriate amount of time to each party. This filing schedule is envisaged to facilitate and expedite the Appeals Chamber’s assessment of the parties’ submissions in order to guarantee swift and fair appeal proceedings. If the briefing schedule pursuant to paragraph (C)(1)(b) of the Practice Direction were to be maintained in the present case, several months would lapse without any progress on Ntabakuze’s appeal. Additionally, this would leave the Prosecution with approximately 11 months to respond to Ntabakuze’s appeal brief instead of 40 days as prescribed under Rule 112(A) of the Rules, which would further contradict the filing schedule prescribed in the Rules.

46.     The Appeals Chamber further considers that an earlier submission of the Prosecution’s response brief will add to the enforcement of equality of arms, as enshrined in Article 20(4) of the Statute. Therefore, the Appeals Chamber finds that it is in the interests of justice to adjust the briefing schedule to correspond to the specific circumstances of this case. Moreover, this will allow the Appeals Chamber to expedite the assessment of Ntabakuze’s appeal as well as the appeals of his co-Appellants, which, as a result, will have a positive effect on the setting of the appeals hearing date and the appeals proceedings as a whole.

20. Rule 82(A) of the Rules provides that “[i]n joint trials, each accused shall be accorded the same rights as if such accused were being tried separately”. However, as the Appeals Chamber previously held, it “does not accept that Rule 82(A) bars in abstracto any difference of treatment between accused in a joint trial and those in separate trials”.[1] While a Trial Chamber is obliged to ensure the rights of the accused under Article 21 of the Statute, it is not imperative that the protection of such rights be identical in a separate and in a joint trial.[2] Accordingly, Rule 82(A) of the Rules does not prohibit a Trial Chamber from taking into account a proper balance among all the co-accused in managing the trial proceedings of a multiple accused case, insofar as such a consideration does not result in prejudice to one or more co-accused.[3]

27. The Appeals Chamber finds that it was not unreasonable for the Trial Chamber to consider, in evaluating the time to be allocated for a witness examination, whether the witness was included in the 65ter Lists of more than one Accused. The fact that a witness is common to more than one Accused certainly permits saving both the time necessary for certain procedural matters, such as the identification of the witness, and for acquiring substantive information, for example the general background of the witness. Further, in a case where the co-Accused are charged with the same crimes, it is not unreasonable to make the initial assumption that a witness called to testify by more than one Defence team could present, inter alia, evidence on subjects relevant to all of the defence cases concerned. […]

The Appeals Chamber considered how the requirement that the time granted to the accused must be reasonably proportional to the time allotted to the prosecution applies in the context of a multi-accused case:

34. The Appeals Chamber declines to accept the Prosecution’s argument that the proportionality standard should necessarily consider the “common elements” as a separate “unit” in the calculation of time and allocate each Accused one-seventh of the time allotted for the Prosecution case.[1] This argument belies the fact that, pursuant to Rule 82(A) of the Rules, each Accused should be allowed time to respond to the common elements of the Prosecution case as they relate to his particular case.

35. However, the Appeals Chamber emphasizes that the determination of the time to be granted to the Defence to present its case is the result of a highly contextual analysis. As a consequence, factors such as the presence of multiple accused make any strict numerical comparison to previous cases inapposite. In a case with multiple accused, the Prosecution is to divide the time allowed for the presentation of its case in order to prove the guilt of each individual accused for each of the crimes charged. Consequently, each individual accused is unlikely to challenge every piece of evidence presented by the Prosecution. Accordingly, the Appeals Chamber finds that the Orić Decision does not provide substantive guidelines for assessing what kind of disparity between the time allocated to the Prosecution and the time allocated to each accused would be too great in a case such as the instant one.[2]

36. The Praljak Defence argues that a case involving multiple Accused should not have the effect of legitimizing a disproportionate reduction of the defence case for the single Accused, as “the presence of other accused is at least as much of a burden as a benefit”.[3] The Praljak Defence argues, in particular, that in any multi-accused case there is a possibility that the co-accused function as “de facto additional prosecutors”, presenting inculpatory evidence for the other co-accused.[4] The Appeals Chamber notes that the eventuality that co-accused present evidence against other accused in the same trial, is counterbalanced by the guarantee, for each accused, to cross-examine witnesses presented by other co-accused and by the fact that each accused may request additional time in due course should good reasons exist.[5]

39. The Appeals Chamber recalls that, as stated in the Orić Decision, when discussing the proportionality between the time allowed to the Prosecution and to the Defence, an accused is not “necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution,” which has the burden of proving every element of the crimes charged beyond a reasonable doubt.[6] In a case with multiple accused, the issue of proportionality is affected not only by the burden of proof upon the Prosecution, but also by the circumstance that not all of the evidence presented by the Prosecution is directed to prove the responsibility of one individual Accused. […]

115. […] Moreover, Rule 82(A) of the Rules does not, as a matter of principle, bar trial chambers from relying on the evidence presented by a co-defendant where that evidence supports the Prosecution case. Trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record.[1] As noted by the Trial Chamber, the Rules provide for remedies where the presentation of incriminating evidence through co-accused after the close of the Prosecution case may prejudice one of the co‑accused. In the instant case, the evidence of Witnesses Reyntjens and Karemano upon which the Trial Chamber relied was already part of the Prosecution case‑in-chief and was only accepted as corroborative of Prosecution evidence.[2] The record shows that Nyiramasuhuko was also afforded the opportunity to cross‑examine these witnesses at length and Nyiramasuhuko does not show that she requested further cross-examination, recall, or the presentation of rejoinder evidence. Accordingly, Nyiramasuhuko does not demonstrate how the Trial Chamber’s reliance on this evidence violated her fair trial rights or caused her prejudice.