Severance of cases

Notion(s) Filing Case
Decision on Severance - 19.06.2009 KAREMERA et al.
(ICTR-98-44-AR73.16)

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. […]

[1] Impugned Decision, paras. 25, 26.

[2] Impugned Decision, para. 43.

[3] Impugned Decision, para. 54.

[4] Impugned Decision, para. 54.

[5] Impugned Decision, para. 54.

[6] See, e.g., Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Prosecution Motion for Re-Assessment of Jovica Stanišić’s Health and Re-Commencement of Trial and Decision on Prosecution Motion to Order Further Medical Reports on Jovica Stanišić’s Health, 17 December 2008, para. 6 (“Stanišić and Simatović Trial Decision”) (in assessing whether to further adjourn proceedings based on the chronic health problems of Jovica Stanišić, the Trial Chamber considered at least 11 medical reports from numerous experts); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Nsengiyumva’s Motions to Call Doctors and to Recall Eight Witnesses, 19 April 2007, paras. 4-6, 13 (considering several detailed medical reports on the Accused’s fitness to stand trial submitted by the Tribunal’s Chief Medical Officer, surgical consultants, and the Accused’s personal physician); Slobodan Milosević v. Prosecutor, Case No. IT-02-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 6 (in assigning Slobodan Milosević court appointed counsel based on “mounting health problems”, the Trial Chamber ordered two separate medical examinations by his treating physician and an independent cardiologist with no prior involvement in the case); Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002, paras. 5-10 (in severing Momir Talić based on health consideration, the Trial Chamber considered reports from the Medical Officer at the detention unit, which it confirmed after appointing two medical experts and holding an evidentiary hearing).

[7] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Continuation of Trial, 3 March 2009], para. 23. The Trial Chamber noted that the Chief Medical Officer’s assessment was made “in consultation and agreement” with Mr. Ngirumpatse’s treating physicians. The Trial Chamber did not consult directly with the attending doctors.

[8] Nzirorera Appeal [Édouard Karemera et al v. The Prosecutor, Case No. ICTR-98-44-AR73.16, Joseph Nzirorera’s Appeal from Decision to Sever Case of Mathieu (sic) Ngirumpatse, 2 April 2009], paras. 41-49.

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ICTR Rule Rule 82(B)
Notion(s) Filing Case
Decision on Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

24.     The Appeals Chamber notes that by virtue of Rule 107 of the Rules, Rules 48 and 82 of the Rules also apply at the appellate stage. It further notes that, as before the Trial Chamber, the decision on joinder or severance is discretionary and requires a complex balancing of intangibles in order to properly regulate the proceedings.[3] Pursuant to Rule 82(B) of the Rules, when considering the severance of an appellant’s case from a previously joint trial, the Appeals Chamber has to assess whether joint proceedings would give rise to any conflict of interests that might cause serious prejudice to an accused, or whether a severance would protect the interests of justice.

[1] See for example Rule 115(D) of the Rules which benefits co-appellants in the presentation of additional evidence.

[2] This has been previously noted for trial proceedings in a number of cases: See, e.g., Tolimir Decision, para. 8; Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motions By Momir Talić for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31 (“Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts.”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalić and the Accused Zdravko Mucić, 26 September 1996, para. 7.

[3] Cf. Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 9; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 5 (“Tolimir Decision”). 

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Notion(s) Filing Case
Decision on Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

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.

[1] See for example Rule 115(D) of the Rules which benefits co-appellants in the presentation of additional evidence.

[2] This has been previously noted for trial proceedings in a number of cases: See, e.g., Tolimir Decision, para. 8; Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motions By Momir Talić for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31 (“Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts.”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalić and the Accused Zdravko Mucić, 26 September 1996, para. 7.

[3] Cf. Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 9; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 5 (“Tolimir Decision”). 

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ICTR Rule Rule 82(B)
Notion(s) Filing Case
Decision on Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

34.     The Appeals Chamber notes that when assessing whether the interests of justice require the severance of a case pursuant to Rule 82(B) of the Rules, issues such as the interrelation of the co-Appellants’ cases on a factual and legal basis and considerations of judicial economy have to be duly taken into account. The Appeals Chamber recalls that “a joint trial is the best guarantee that identical evidence with regard to each accused is fully considered”.[4] The same is true on appeal. The Appeals Chamber further notes that in the instant case, Ntabakuze may directly benefit from the Appeals Chamber’s consideration of all issues raised by all co-Appellants in their respective appeal briefs at the same time.

[1] See for example Rule 115(D) of the Rules which benefits co-appellants in the presentation of additional evidence.

[2] This has been previously noted for trial proceedings in a number of cases: See, e.g., Tolimir Decision, para. 8; Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motions By Momir Talić for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31 (“Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts.”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalić and the Accused Zdravko Mucić, 26 September 1996, para. 7.

[3] Cf. Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 9; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 5 (“Tolimir Decision”).

[4] The 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 of 24 January 2006”), para. 27. The ICTY Appeals Chamber found that it was reasonable to conclude that “one joint trial would ensure that the same evidence is available and assessed with regard to each accused and thus result in a greater likelihood of consistent evaluation of the evidence, findings and verdicts on the basis of the same facts” (See Pandurević Decision of 24 January 2006, para. 23).

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ICTR Rule Rule 82(B)