THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
Case No. IT-04-78-PT
IN TRIAL CHAMBER
The Trial Chamber appointed by the President
Mr Hans Holthuis
2 September 2004
REQUEST BY THE PROSECUTOR UNDER RULE 11 bis
PARTLY CONFIDENTIAL (ATTACHED SCHEDULES TO ANNEX I FILED CONFIDENTIAL)
The Office of the Prosecutor:
Carla Del Ponte, Prosecutor
Counsel for the Accused:
Cedo Prodanovic for Rahim Ademi
ZeljkoOlujic for Mirko Norac
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
Case No. IT-04-78
REQUEST BY THE PROSECUTOR UNDER RULE 11 bis FOR REFERRAL OF THE INDICTMENT TO ANOTHER COURT
- Pursuant to Rule 11 bis of the Rules of Procedure and Evidence, the
Prosecutor requests the Trial Chamber to refer the case to the authorities
of Croatia for trial by an appropriate court within that State. Since this
is the first motion of its kind, it addresses certain legal and procedural
issues in some detail.
- An indictment against the accused RAHIM ADEMI (Case No. IT-01-46) was confirmed
on 8 June 2001, and a Second Amended indictment against him was issued on
1 February 2002. He voluntarily surrendered to the Tribunal on 25 July 2001.
The Prosecutor does not consider that he was at any time "arrested" within
the meaning of Sub-rule 11 bis (A) (ii). The accused RAHIM ADEMI was
provisionally released on 20 February 2002.
- An indictment against MIRKO NORAC (Case No. IT-04-76) was confirmed on 20
May 2004. He was at that time serving a sentence of imprisonment in Croatia
in connection with an unrelated matter. An arrest warrant was not issued.
However, on 8 July 2004, for the purposes of escorting him to make an initial
appearance before the Tribunal, MIRKO NORAC was detained on behalf of the
Tribunal by the authorities of Croatia and by the authorities of the Netherlands.
The Prosecutor does not consider that he was at any time "arrested" within
the meaning of Sub-rule 11 bis (A) (ii). The accused MIRKO NORAC remains
in custody in Croatia serving a sentence of imprisonment.
- On 30 July 2004, Trial Chamber I granted the Prosecution Motion for Joinder
of the Accused, dated 27 May 2004, and confirmed that the Indictment attached
to that motion was the official indictment against both accused. For ease
of reference, a copy of that last indictment is attached to this request as
II. The Law
- Rule 11 bis provides for the referral of a case from the International
Tribunal to the Authorities of a State. A case may be transferred to the authorities
of a State:
- in whose territory the crime was committed; or
- in which the accused was arrested; or
- having jurisdiction and being willing and adequately prepared to accept
such a case.
- Should more than one State have an interest in the prosecution of a case,
the Prosecutor would interpret these provisions as ranking the possible States
in descending order of priority. In accordance with the principle that justice
in criminal matters should be rendered as closely as possible to the victims
and to the place where the crimes were committed, the Prosecutor considers
that, where possible, a case should be referred to the authorities of the
State where the crimes alleged took place. The sub-paragraphs (i) to (iii)
are listed disjunctively, not cumulatively. Nevertheless, the Prosecutor considers
it important to ascertain, before referring a case to any State whether the
State in question is willing and adequately prepared to prosecute the case.
- The purpose of the referral of a case by a Trial Chamber to the authorities
of a State is that those authorities should forthwith refer the case to the
appropriate court for trial within that State. The Prosecutor observes that
Rule 11 bis does not provide for a Trial Chamber of the Tribunal to
refer a case directly to a court in a State.
- Rule 11 bis (B) provides that a Trial Chamber may order such referral
proprio motu or at the request of the Prosecutor, if it is satisfied
that the accused will receive a fair trial and that the death penalty will
not be imposed or carried out. The Prosecutor, and, where appropriate, the
Accused shall be given the opportunity to be heard.
- Rule 11 bis (C) sets out the two criteria which a Trial Chamber shall
consider in determining whether to refer a case to the authorities of a State:
the gravity of the crimes charged, and the level of responsibility of the
accused. The Trial Chamber is to consider the gravity of the crimes charged
and the level of responsibility of the accused in accordance with Security
Council resolution 1534 (2004). The Prosecutor considers the effect of this
Sub-rule to be that a case will be suitable for referral if it qualifies on
- In paragraph 4 of Security Council resolution 1534 (2004), the Security
"Calls on the ICTY (…) Prosecutor(s) to review
the case load of the ICTY (…) in particular with a view to determining
which cases should be proceeded with and which should be transferred to
competent national jurisdictions, as well as the measures which will need
to be taken to meet the Completion Strategies referred to in resolution
1503 (2003) …".
In resolution 1503 (2003), the Security Council stated:
"Recalling and reaffirming in the strongest terms the
statement of 23 July 2002 made by the President of the Security Council
(S/PRST/2002/21), which endorsed the ICTY’s strategy for completing
investigations by the end of 2004, all trial activities at first instance
by the end of 2008, and all of its work in 2010 (…), by concentrating
on the prosecution and trial of the most senior leaders suspected of being
most responsible for crimes within the ICTY’s jurisdiction and transferring
cases involving those who may not bear this level of responsibility to competent
national jurisdictions, as appropriate, as well as the strengthening of
the capacity of such jurisdictions".
The President of the Security Council’s statement of
23 July 2002 (S/PRST/2002/21), to which an earlier version of Rule 11 bis
referred1, had indicated inter alia:
"The Council recognises, as it has done on other occasions
. . ., that the ICTY should concentrate its work on the prosecution and
trial of the civilian, military and paramilitary leaders suspected of being
responsible for serious violations of international humanitarian law committed
in the territory of the former Yugoslavia since 1991, rather than on minor
actors. The Security Council therefore endorses the report’s broad
strategy for the transfer of cases involving intermediary and lower-level
accused to competent national jurisdictions as likely to be in practise
the best way of allowing the ICTY to achieve its current objective of completing
all trial activities at first instance by 2008."
- In its earlier Resolution 1329 (2000), the Security Council had:
"(taken) note of the position expressed by the International
Tribunals that civilian, military and paramilitary leaders should be tried
before them in preference to minor actors," and
"(recalled) that the International Tribunals and national
courts have concurrent jurisdiction to prosecute persons for serious violations
of international humanitarian law, and noting that the Rules of Procedure
and Evidence of the International Tribunal for the Former Yugoslavia provide
that a Trial Chamber may decide to suspend an indictment to allow for a
national court to deal with a particular case."
- More recently, on 4 August 2004, the President of the Security Council declared
"The Security Council emphasizes the importance of the referral of cases
involving lower and intermediate rank accused to competent national jurisdictions
in achieving the Completion Strategies, and recalls the provisions of its
resolutions 1503 (2003) and 1534 (2004), including the call for assistance
to ensure the success of this effort."2
- Rule 11 bis explicitly provides that, when an order of referral is
issued by a Trial Chamber:
(i) the accused, if in the custody of the Tribunal, shall be handed over
to the authorities of the State concerned;
(ii) the Chamber may order that protective measures for certain witnesses
or victims remain in force;
(iii) the Prosecutor shall provide to the authorities of the State concerned
all of the information relating to the case which the Prosecutor considers
appropriate and, in particular, the material supporting the indictment;
(iv) the Prosecutor may send observers to monitor the proceedings in the
national courts on her behalf.
If an accused has been provisionally released, the Prosecutor does not consider
it to be necessary for that accused to be returned to the custody of the Tribunal
before the Trial Chamber can decide to refer the case to a State pursuant
to Rule 11 bis. It may, however, be necessary to revoke an order for
provisional release, or to vary the conditions attached to a provisional release
order if their continuation would be incompatible with new orders being issued
by the domestic court. If the accused is detained by the Tribunal, the Prosecutor
considers it imperative that proceedings before the Tribunal, particularly
orders authorizing the detention of the accused, continue until such time
as the accused is transferred to the custody of the State to which the case
- The Trial Chamber may also issue a warrant for the arrest of the accused,
which shall specify the State to which he is to be transferred for trial.
The Prosecutor would not, however, consider such a step to be necessary where
an accused has already been granted provisional release.
- At any time after an order has been issued pursuant to Rule 11 bis but
before the accused is found guilty or acquitted by a national court, the Trial
Chamber may, at the request of the Prosecutor and upon having given to the
State authorities concerned the opportunity to be heard, revoke the order
and make a formal request for deferral within the terms of Rule 10. Where
an order issued pursuant to Rule 11 bis is revoked by the Trial Chamber,
the Chamber may make a formal request to the State concerned to transfer the
accused to the seat of the Tribunal and the State shall accede to such a request
without delay in keeping with Articles 9, 10 and 29 of the Statute. Given
the terms of Sub-rule (D)(iv), the Prosecutor does not consider it necessary
to seek a separate order for monitoring the proceedings in the national courts.
III. The gravity of the crimes charged, and the level
of responsibility of the accused:
- The Prosecutor considers that there are certain cases which, although they
would merit prosecution in the international forum, would also be suitable
for prosecution before a competent national court. The present case is one
of those that might be prosecuted either way.
- Rahim ADEMI was a Brigadier in the Croatian Army and was appointed Acting
Commander of the Gospic Military District due to the illness of the Commander.
Mirko NORAC was the Commander of the Ninth Guards Brigade and was subordinated
to Rahim ADEMI. Both were subordinated to the Chief of the Main Staff, Janko
Bobetko, who was indicted by the Tribunal and is now deceased.
- The gravity of the crimes can been assessed from the indictment: the crimes
alleged encompass the unlawful killing of at least 29 Serb civilians, and
the infliction of serious injury on others. Many of the victims were women
and elderly people. At least five Serb soldiers who had been captured were
killed or wounded. Approximately 164 homes and 148 barns and outbuildings
(being a majority of the buildings in the villages within Medak Pocket) were
destroyed by fire or explosives. Looting and plunder took place of personal
belongings, household goods, furniture, farm animals, farm machinery and other
equipment. Wells were polluted.
- On this basis, the Prosecutor considers that, as matters stand, neither
the gravity of the crimes alleged nor the level of responsibility of the accused
demand that this case be brought to trial before the International Tribunal.
In all the circumstances therefore the Prosecutor regards the present case
as suitable for referral under Rule 11 bis.
IV. The case should be referred to the authorities
- In the present case, the crimes charged in the indictment were committed
on the territory of Croatia. As indicated above, the Prosecutor considers
that, where possible, a case should be referred to the authorities of the
State where the crimes allegedly took place so that justice be rendered as
closely as possible to the victims. The Prosecutor consequently proposes that
the case be referred for prosecution and trial to the Croatian authorities.
As far as the Prosecutor knows, no other State has indicated to the Prosecutor
that it has jurisdiction and is willing and adequately prepared to accept
- Croatia has territorial jurisdiction by virtue of the principle of concurrent
jurisdiction enshrined in Article 9 of the Statute, as also recognised by
sub-paragraph (A) (i) of Rule 11 bis. Nevertheless, the Prosecutor
has ascertained that Croatia is willing and adequately prepared to prosecute
the accused in its own courts.
- The Croatia Authorities, specifically, Prime Minister I. Sanader, Foreign
Minister M. Zuzul and Minister of Justice V. Skare-Ozbolt; State Attorney
M. Bajic and his deputies; President of the Zagreb County Court, B. Rumenjak
and the Judges of that court – have repeatedly expressed to the Prosecutor
their willingness and readiness to try this case before the relevant domestic
court. The Croatian authorities also gave to the Prosecutor assurances that
all necessary legal and technical conditions would be provided for a fair
trial in this case without any interference in the judicial process.3
- According to several available sources, including reports of the OSCE mission
to Croatia4, a limited number of cases from the
Tribunal could apparently be processed in an effective and fair manner despite
the fact that, overall, problems still exist in the Croatian judicial system
in the processing of the war crimes cases (especially, as indicated by the
OSCE reports, before the lower level courts in terms of ethnic bias). As reported
by the OSCE Mission in Croatia, since late last year and during the first
half of this year the Croatian Parliament amended its legislation governing
war crimes, command responsibility and other international humanitarian legal
issues.5 It appears that the OSCE Mission to Croatia’s
reports and assessments were positively received by the EU Presidency and
the OSCE Permanent Council.6
- Pursuant to Articles 28 and 49(2) of the Croatian law, when a case is referred
by the International Tribunal pursuant to Rule 11 bis for domestic
prosecutions, the State Prosecutor of Croatia has the legal obligation to
prosecute the case before a competent court, on the basis of an indictment
based on the elements of the offences charged in the indictment confirmed
by the International Tribunal.7 The
Prosecutor received assurances that the present case would be processed by
the State Attorney’s Office and the Zagreb County Court, as being best-positioned
in terms of experience to process complicated organized crime and war crimes
- Rule 11 bis (B) provides that, to order a referral proprio motu
or at the request of the Prosecutor, a Trial Chamber must be satisfied that
the accused will receive a fair trial and that the death penalty will not
be imposed or carried out.
- The the death penalty is not prescribed by the criminal legislation of Croatia,
which has adhered to the European Convention on Human Rights, including its
Protocol 6 which prohibit the death penalty. Article 49 of the Croatian Criminal
Code prescribes that the only forms of punishment for criminal offences are
imprisonment and fine, while Article 53 thereof provides that imprisonment
may not be longer than forty years for the gravest forms of serious criminal
offenses perpetrated with intent.
- In the event that the Trial Chamber is not fully satisfied by the above
indicators that the accused would receive a fair trial before the Zagreb County
Court and that the death penalty will not be imposed or carried out, it would
be open to the Trial Chamber to request additional information directly from
the Croatian authorities.
- Indeed, although Rule 11 bis only explicitly provides for the Prosecutor,
and where appropriate, the Accused, to be given the opportunity to be heard
on a motion for referral, the Prosecutor considers that it would be appropriate
for the Trial Chamber to call the Authorities of Croatia and hear them on
the matter of referral. The practice followed by the International Tribunal
when reviewing a motion for deferral under Rule 10 has been to hear the State
concerned, although it is not explicitly mentioned by the Rule, and the Prosecutor
considers it advisable that the Trial Chamber duly consider hearing Croatia
before deciding on this request.
V. Cooperation between the Prosecutor and to the Croatian
authorities concerning this case
- If the Trial Chamber orders the referral of the case to Croatia, in application
of Rule 11 bis (D), the Prosecutor will provide to the Croatian authorities
the material supporting the indictment and all other information relating
to the case which the Prosecutor considers appropriate.
- The Prosecutor is prepared to make documentary evidence available to the
State Authorities, including supporting materials. In addition, the Prosecutor
will contact certain potentially vulnerable witnesses to determine their willingness
to co-operate with the Croatian authorities and to give evidence before the
national court. The results of these enquiries will be conveyed to the Croatian
authorities in due course, but it is not expected at this stage that any difficulties
which might arise in this area will operate as a bar to a domestic prosecution.
- No protective measures for witnesses or victims have been ordered in this
case, and the need for any such orders to remain in force therefore does not
VI. Practical measures to be considered for the referral
of the case
- If the request for referral is granted in this case, since neither accused
is in the custody of the Tribunal, no consequential orders relating to the
detention or hand-over of the accused are required. The Prosecutor considers
that the provisional release order for the accused RAHIM ADEMI should remain
in place until such time as the Tribunal is informed that maintaining it,
or any of its conditions, would be incompatible with steps being taken by
the Croatian authorities or a court in Croatia.8
VI. Relief Sought
THE PROSECUTOR THEREFORE REQUESTS
(1) - that the Trial Chamber allow the filing of the present motion of thirteen pages;
(2) - that the Trial Chamber give the opportunity to the Authorities of Croatia to be heard on the present motion and the condition for the referral of this case;
(3) - that the Trial Chamber subsequently order the referral of the case to the authorities of Croatia so that those authorities should forthwith refer the case to the appropriate court, namely the County Court of Zagreb, for trial within Croatia.
Carla Del Ponte
Dated this 2 of September 2004
At The Hague
1. Rule 11 bis (C) which previously referred to
Presidential Statement /PRST/2002/21, was amended on 5 August 2004 to refer to
Security Council resolution 1534 (2003).
2. Presidential statement S/PRST/2004/28.
3. Including - the visit of Minister of Justice V.Skare-Ozbolt and State Attorney
M.Bajic to The Hague on 1 April 2004, visit of Foreign Minister M.Zuzul and State
Attorney M.Bajic to The Hague on 6 May 2004, most importantly – visit of
the Prosecutor to Zagreb on 3-4 June 2004 and, finally, visit of the Foreign Minister
M. Zuzul, Justice Minister V.Skare-Ozbolt and State Attorney M.Bajic to The Hague
on 5 July 2004..
4. In a statement of 22 June 2004 the OSCE Mission to Croatia, which accompanied
two reports on war crime trials conducted in Croatian courts, the Mission acknowledged
recent improvements but concluded that additional reform is needed to provide
for impartial domestic adjudication of war crimes in all Croatian courts. The
two reports provide an analysis based on statistical information as well as individual
cases derived from the Mission's country-wide monitoring of war crimes proceedings.
Approximately 500 individuals were processed for war crimes before 12 county courts
from 2002 until mid-2004. The reports were jointly presented by the Head of the
OSCE Mission to Croatia, Ambassador Peter Semneby, and Croatia's Justice Minister,
Vesna Skare Ozbolt. "In connection with its co-operation with the International
Criminal Tribunal for the former Yugoslavia (ICTY), there has been an observable
increased government commitment in 2004 to prosecute all war crimes perpetrators,
regardless of national origin, as well as growing public acceptance of this approach,"
Ambassador Semneby said in his statement. "However, the reports indicate
that the national origin of defendants and victims continue to effect war crime
proceedings." "While there have been improvements in the past year,
these reports show that additional measures are still needed to ensure that all
parts of the Croatian judiciary are sufficiently prepared to impartially adjudicate
war crime trials," he added. The OSCE Mission Head commended efforts already
undertaken by the Ministry of Justice, with the ICTY, to provide training for
judges in the Zagreb, Osijek, Split, and Rijeka County Courts that may receive
cases transferred from the ICTY. He said that these efforts were likely to make
it possible for the Croatian judiciary to handle the limited number of cases that
are expected to be transferred from the ICTY in the near future.
5. Implementing legislation of the ICC Treaty was adopted and came into force;
in its last session before the summer recess in July 2004, Parliament adopted
additionally several provisions intended to harmonize the Criminal Code with the
Statute of the ICC. The amendments, which will come into force on 1 October, introduce
the new criminal offences of Crimes against Humanity and Subsequent Assistance
to a Perpetrator of a Criminal Act against Values protected under International
Law. The amendments also specify Command Responsibility as a basis for individual
criminal liability in war crimes prosecutions. The amendments additionally introduce
a new offence of Revealing the Identity of a Protected Witness, which has relevance
for war crimes procedures as well as other types of criminal prosecution. According
to the Croatian Law only four, well established and equipped, County Courts in
Croatia (in main cities - Zagreb, Osijek, Split and Rijeka) have jurisdiction
to process war crimes cases.
6. Statement of the Permanent Representative of the Netherlands to the OSCE, on
behalf of the EU Presidency, during the Permanent Council meeting No 514 on 8
July (PC.DEL/634/04 8 July 2004).
7. Croatian law regarding the implementation of the statute of the International
Criminal Court and the prosecution of criminal offences against international
war and humanitarian law of 24 October 2003.
8. The Accused Ademi was provisionally released on 20 February 2002.