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]

In its Oral Decision of 8 May 2006, the Trial Chamber adopted three principles concerning cross-examination guidelines for the six accused in this case. They included 1) the total time limit of cross-examination by the Defence shall not in principle exceed the Prosecution’s direct-examination and if Defence cannot agree the time will be allocated equally, 2) the Defence will rotate their order of cross-examining witnesses, and 3) the allocation of time for cross-examination will be altered if a witness’s testimony goes to the responsibility of one of the accused.[1]

In their interlocutory Appeal, the Appellants submit that the Trial Chamber abused its discretion by committing the following:

(a) severely restricting the fundamental right of the Accused to cross-examine the witnesses against them;

(b) applying rigid time-constraints in preference to using less restrictive methods of control;

(c) effectively requiring the Accused to exercise the right of cross-examination as a group rather than individually, regardless of conflicts of interest, and to bargain with each other for time to cross-examine;

(d) preventing Defence Counsel from affording effective assistance of counsel to the Accused; and

(e) failing to exercise judicial independence by subjugating the fight of the Accused to a fair trial to the political and economic pressures imposed upon the Trial Chamber by the UN Security Council through the Completion Strategy.[2]

The Prosecution submitted that the Trial Chamber decision was rather “a practical and flexible guideline that ensures a fair and expeditious trial, discourages unfocused and irrelevant cross-examination, and facilitates the scheduling of witnesses who must travel internationally to testify before the International Tribunal”.[3]

The Appeals Chamber noted that each of the Defence teams had 1/6 of the time allocated to Prosecution (unless another agreement was reached),[4] and the Trial Chamber could allocate the time differently depending on whether a witness’ testimony spoke directly to the culpability of the one of the accused.[5] Additionally, the Appeals Chamber referred to the Tribunal’s established practice of avoiding “rigid time limits”[6] for cross-examination, “in particular, since the Trial Chamber reserves its power to modify the time allowed for cross-examination as necessary and allows the Appellants to adjust the specified time allocation by agreement among themselves.”[7]

Therefore, the Appeals Chamber found that the Trial Chamber was “sufficiently flexible”[8] in preserving the Defendant’s right to cross-examination as stated in the Statute, while also balancing the needs and right to a fair trial of each individual defendant.

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). 

The Appellant was arguing that the Trial Chamber erred in finding that it could regulate the cross-examination of witnesses. In his view, this would violate both his right to cross-examine witnesses under Article 21(4)(e) of the Statute and Rule 82(A) of the Rules according to which in “joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.”

The Appeals Chamber found the following:

29. […] The Trial Chamber was correct to note that in a joint trial, a Trial Chamber has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. Rule 90(F) specifically provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.” Of course, this power is subject to Trial Chamber’s obligation to respect the rights of an accused, including the right to cross-examine witnesses under Article 21(4)(e) of the Statute.[1] The Appellant fails to show how the Trial Chamber’s regulation of the cross-examination of witnesses in this joint trial by, for example, avoiding repetitive questioning, would result in prejudice to him. Rather, the Trial Chamber’s regulation should mitigate any potential prejudice to him. At trial, the Appellant will have the opportunity to object where he feels that the Trial Chamber has erred in finding that another Accused’s cross-examination of a witness is sufficient to cover his defence such that he does not need to also engage in cross-examination of that same witness. The Trial Chamber will consider each objection carefully under its obligation to respect norms of due process and the rights of the Appellant. 

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.

16. The Appeals Chamber considers that the delays that would inevitably result from allowing Praljak to represent himself will negatively affect the right of Praljak, as well as that of his Co-Appellants (all of whom are represented by counsel) to fair and expeditious proceedings. As a trial chamber of the Special Court for Sierra Leone has held, ensuring adequate legal representation of each defendant is of particular importance in the context of a multi-accused case.[1] The Appeals Chamber notes that this consideration is relevant to the case at hand.[2] Praljak himself has stated on several occasions that his interests would be better served through assistance of counsel, in particular during appeal proceedings.[3] The Appeals Chamber is therefore satisfied, given the specific circumstances of this case, that Praljak should not be allowed to represent himself in these proceedings and considers proprio motu that the assignment of counsel to Praljak would be in the interests of justice pursuant to Rule 45ter of the Rules. Accordingly, the Appeals Chamber finds that there is no reason to stay proceedings as requested by Praljak.

With respect to Čermak’s arguments, asserting that the crimes for which he is charged cannot be part of the “same transactions” as his participation in the alleged joint criminal enterprise is said to have commenced at a different time, the Appeals Chamber, at para. 21,

[…] emphasizes that “the Trial Chamber is not required, at this stage in the proceedings, to determine whether there is sufficient evidence put forward by the Prosecution to support the allegations made against an accused in the indictment.”[1] Furthermore, there is no requirement that the acts or omissions alleged to form the same transaction took place at the same “exact” time or were committed together in the same “exact” place. What is essential is that there are factual allegations in the indictment sufficient to support a finding that the alleged acts or omissions form part of a common scheme, strategy or plan.[2]

At para. 22, the Appeals Chamber, referring to the Kordić and Čerkez case, further held that the particular role that an accused is alleged to have played in the “same transaction” is not determinative.

22. […] The acts or omissions alleged against an accused may be found to be part of the “same transaction” with another accused so long as there are other factual allegations in the indictment sufficient to support a finding that they form part of a common scheme, strategy or plan. Nor is there any specific requirement that an accused is alleged to have made a substantial contribution to the joint criminal enterprise.[3] […]

The Appeals Chamber held that joinder of cases will not adversely affect Čermak and Markač’s right to fair trial with undue delay, due to the fact that, even if they have been preparing longer than Gotovina for their trial, there is no start date for the trial in the immediate future.[1]  With respect to Čermak and Markač’s argument that Gotovina’s case adds complexity to their case and will lead to a long and procedurally complicated trial in violation of their right to a fair trial without undue delay, the Appeals Chamber held at para. 44:

44. […] Two separate trials, whether conducted simultaneously or otherwise, are still likely to require more court hours in total than one joint trial and require more judicial time and resources. Furthermore, two separate trials will likely lead to duplication of efforts. In addition, in light of the significant overlap the Trial Chamber found between the two cases on the basis of the amended indictments, Čermak and Markač fail to demonstrate that a joint trial with Gotovina will lead to a long and procedurally complicated trial. […] The Trial Chamber reasonably exercised its discretion in finding that overall, in this case, joinder will promote judicial economy and this weighs in favour of granting joinder.

25.     The Appeals Chamber recalls that the preference for joint trials and appeals of individuals accused of acting in concert in the commission of a crime or being held responsible for the same complex of crimes with a common scheme or strategy is not based merely on administrative efficiency. Joint appeal proceedings not only enhance fairness as between the appellants by ensuring a uniform procedure against all[1] but also minimize the possibility of inconsistencies in (a) treatment of such evidence, (b) common legal findings of the Trial Chamber, (c) sentencing, or (d) other matters that could arise from separate appeals.[2]

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.

69. Joinder and severance of trials are governed by Rules 48 and 82 of the Rules. Rule 48 of the Rules provides that “[p]ersons accused of the same or different crimes committed in the course of the same transaction may be jointly charged or tried.” 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.” It has been held that, pursuant to Rule 2 of the Rules, a common scheme, strategy, or plan therefore includes one or a number of events at the same or different locations.[1] There is no requirement under Rules 2 and 48 of the Rules that the events constituting the “same transaction” take place at the same time or be committed together.[2] In deciding whether the case against more than one accused should be joined pursuant to Rule 48 of the Rules, a trial chamber should base its determination upon the factual allegations contained in the indictments and related submissions.[3]

70. 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.[4] Rule 82 of the Rules provides:

(A) In joint trials, each accused shall be accorded the same rights as if he were being tried separately.

(B) The 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.

71. In light of Rule 82 of the Rules, it is therefore appropriate for a trial chamber deciding on a motion for joinder pursuant to Rule 48 of the Rules to consider and weigh the following factors: (i) protection of the fair trial rights of the accused pursuant to Article 20 of the Statute; (ii) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (iii) protection of the interests of justice. Factors that a trial chamber may look to in the interests of justice include: (i) avoiding the duplication of evidence; (ii) promoting judicial economy; (iii) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (iv) ensuring consistency of verdicts.[5]

108. As to whether the joinder created undue delay and thus required the severance of the cases, the Appeals Chamber finds no error in the Trial Chamber’s finding that the fact that a joint trial might last longer than that of a single accused does not necessarily encroach the co‑accused’s right to be tried without undue delay.[1] The Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay.[2] […] The Appeals Chamber finds that, although the joinder added some degree of complexity to the proceedings, the mere allegation that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder and that it was unreasonable for the Trial Chamber to deny the severance of Nyiramasuhuko’s case.[3]

See also para. 365.