In its Decision, the Trial Chamber noted that in their request, the Co-Prosecutors place considerable reliance on ICTY Rule 73bis, deriving from it a mandatory obligation to seek the views of the Co-Prosecutors before decisions on severance are taken.
Pursuant to ICTY Rule 73bis, after having heard the Prosecutor, the Trial Chamber, may, inter alia invite the Prosecutor to reduce the number of counts charged in the indictment.
A similar Rule, according to the Chamber, would be ill-suited to the ECCC, where proceedings are instead inquisitorial and whose indictments are judicially controlled.
Indeed, under Rule 67 of the ECCC Internal Rules, it is the Co-Investigating Judges who, upon conclusion of the investigation, indict a person and send him to trial.
The Chamber reiterated that the severance Order enables it to issue a first verdict limited to certain counts and factual allegations at an earlier stage, without the need to await a conclusion of the whole trial in relation to all portions of the indictment.
The Chamber also noted that, as no allegations or charges in the indictment are discontinued in consequence of the Severance Order, there is no need for the first trial to be reasonably representative of the totality of charges.