Same transaction

Notion(s) Filing Case
Reasons for Decision on Refusal to Order Joinder - 18.04.2002 MILOŠEVIĆ Slobodan
(IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73)

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.

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ICTR Rule Rule 49 ICTY Rule Rule 49
Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

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] […]

[1] Prosecutor v. Vinko Pandurević & Milorad Trbić, Case No. IT-05-86-AR73.1, Decision on Vinko Pandurević’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 24 January 2006 (“Pandurević Decision on Joinder”), para. 13.

[2] Decision, para. 21, referring to Impugned Decision, paras 7, 17.

[3] Decision, para. 22, referring to Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, para. 97.

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ICTR Rule Rule 48 ICTY Rule Rule 48