Prijedor Cases: Prosecution Motion Denied

The four have been facing three separate but related indictments. Milan Kovacevic was indicted for persecution of non-Serbs (qualified as genocide) in the Prijedor municipality in north-west Bosnia; Miroslav Kvocka and Mladen Radic for grave mistreatment of the Omarska camp detainees; and Zoran Zigic for numerous alleged crimes committed in the Omarska and Keraterm camps.

Both camps operated during 1992 in the region of Prijedor and - according to the prosecutor - were under control of the local military and civilian authorities, of which the accused Kovacevic was one of the most prominent members.

During a public hearing on Monday, 11 May, Prosecutor Michael Keegan argued in favor of the request for joinder and concurrent presentation of evidence by primarily stressing the need that witnesses and victims - for the sake of protection of their "health, welfare, and security" - be spared the traumas of multiple testimonies about the same events, i.e. crimes.

According to the prosecutor, even though they are described in three separate indictments, the events that took place in the Prijedor region and the local camps of Omarska and Keraterm are "part of the same transaction."

All the indictments, Keegan argued, "are based on the same facts, and as a trial is a search for the truth, the facts revealed in the process of concurrent presentation of evidence are relevant to all the accused." In fact, he went on to say, "all of the 25 witnesses currently identified for the Kovacevic case ... would also be called among the witnesses presented for the trial of Zigic, Kvocka, and Radic."

In addition, Keegan was trying to prove that the three accused of alleged crimes at the Omarska and Keraterm camps were "part of the personnel subordinated to Kovacevic [who was a member of the so-called Crisis Headquarters that was in charge of the camps], which is precisely the basis of his command responsibility."

Finally, the prosecutor used the argument of "judicial economy," pointing out that, given the lack of courtrooms, two or three separate trials about the same events would prevent the Tribunal to timely solve other cases, which have piled up over recent months.

The defense attorneys' chief argument against the prosecutor's requests was the inevitable "conflict of interests ... which may cause serious prejudice" to the four accused. A conflict between Kovacevic (accused of genocide) and the other three (charged with crimes against humanity, grave breaches of the Geneva Conventions, and violations of laws and customs of war), they argued, is not only possible but also inevitable.

In the case of a joinder, Kovacevic's American defender Anthony D'Amato claimed, it might be in the interest of his client to prove the guilt of the other three and vice versa, which would lead to the situation where "defense teams would be quarreling with each other, while the prosecutor laughs and enjoys the show."

Instead of a joinder, D'Amato suggested a two-stage "bifurcated trial." Phase 1 would deal with the evidence on acts and omissions that allegedly occurred outside the boundaries of the detention camps. Phase 2 would then deal with the events that occurred within the boundaries of one or more detention camps. Phase 2 of the Kovacevic trial would proceed concurrently with the trial of Kvocka, Radic, and Zigic.

If their trial was scheduled for mornings, and Phase 2 of the Kovacevic trial were scheduled for afternoons, D'Amato suggested, "the prosecutor's witnesses and victims who are called for the morning trial could testify again the same day."

The judges apparently liked D'Amato's suggestion, so they summoned the prosecutor and the defense in order to try to forge an agreement between the two sides on a compromise solution. The prosecutor, however, held on to his position that the "bifurcated trial" does not provide for the adequate protection of witnesses and victims, who would still have to go through the repeated trauma of testifying two or more times, regardless whether it was on the same day or not.

After the prosecutor and the defense announced that they had failed to reach an agreement on a "bifurcated trial," the Trial Chamber II-bis (presiding Judge Richard May, judges Antonio Cassese and Florence Mumba), denied the prosecution motion for a joinder of the accused and concurrent presentation of evidence. Setting out the reasons, the chamber noted that "to order the concurrent presentation of evidence would be to order a joint trial of all four accused."

In the view of the chamber, such a solution is not justified, because "the course requested by the prosecution may endanger the rights of all accused to a fair trial, because it may lead to conflict of interest between the accused in conducting their defense."

Furthermore, the chamber maintained that "to allow this motion ... would result in a violation of the right of the accused Milan Kovacevic to an expeditious trial," since it would postpone the beginning of his trial until the ruling on the preliminary motions of the other three accused (who have only recently arrived at the Tribunal's Detention Unit).

Kovacevic was arrested on 10 June 1997 and the beginning of his trial was scheduled for 11 May this year.

The start was put off, however, until the Appeals Chamber has decided on the prosecutor's request that the indictment against Kovacevic be expanded to include 14 new counts, which would thus - in addition to genocide - encompass other criminal acts under the Tribunal's jurisdiction.

Pending the Appeals Chamber decision, the Trial Chamber II-bis has set a tentative day for the commencement of the trial of Milan Kovacevic for 6 July.