Case No.: IT-04-78-PT
Judge Alphons Orie, Presiding
Judge O-Gon Kwon
Judge Kevin Parker
Mr. Hans Holthuis
14th September 2005
RAHIM ADEMI and MIRKO NORAC
DECISION FOR REFERRAL TO THE AUTHORITIES OF THE REPUBLIC OF CROATIA PURSUANT TO RULE 11bis
The Office of the Prosecutor:
Ms. Carla del Ponte
The Government of the Republic of Croatia:
per: The Embassy of the Republic of Croatia The Hague; The Netherlands
Counsel for the Accused: Amici Curiae:
Mr. Cedo Prodanovic for Rahim Ademi
Professor Mirjan Damaska
Mr. Zeljko Olujic for Mirko Norac Professor Davor Krapac
(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State :
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case,
so that those authorities should forthwith refer the case to the appropriate court for trial within that State.
(B) The Referral Bench may order such referral proprio motu or at the request of the Prosecutor, after having given to the Prosecutor and, where applicable, the accused, the opportunity to be heard and after being satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out.
(C) In determining whether to refer the case in accordance with paragraph (A), the Referral Bench shall, in accordance with Security Council resolution 1534 (2004) , consider the gravity of the crimes charged and the level of responsibility of the accused.
(D) Where an order is issued pursuant to this Rule:
(i) the accused, if in the custody of the Tribunal, shall be handed over to the authorities of the State concerned;
(ii) the Referral Bench 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.
(E) The Referral Bench may issue a warrant for the arrest of the accused, which shall specify the State to which he is to be transferred to trial.
(F) At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Referral Bench 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.
(G) Where an order issued pursuant to this Rule is revoked by the Referral Bench, it 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 Article 29 of the Statute. The Referral Bench or a Judge may also issue a warrant for the arrest of the accused.
(H) A Referral Bench shall have the powers of, and insofar as applicable shall follow the procedures laid down for, a Trial Chamber under the Rules.
(I) An appeal by the accused or the Prosecutor shall lie as of right from a decision of the Referral Bench whether or not to refer a case. Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision.
IV. THE GRAVITY OF THE CRIMES CHARGED AND THE LEVEL OF RESPONSIBILITY OF THE ACCUSED
V. THE APPLICABLE SUBSTANTIVE LAW
VI. WITNESS PROTECTION AND MUTUAL LEGAL ASSISTANCE
VIII. THE DEATH PENALTY
FOR THESE REASONS,
PURSUANT TO Rule 11bis of the Rules,
THE REFERRAL BENCH
HEREBY GRANTS the Motion and ORDERS that the case of the Prosecutor v. Rahim Ademi and Mirko Norac be referred to the Authorities of the Republic of Croatia, so that those Authorities should forthwith refer this case to the appropriate Court, i.e. one of the four County Courts, for trial in Croatia;
ORDERS that all Orders and Decisions issued previously by the Tribunal in this case shall remain in force until they are either amended or withdrawn, or other provision is made, by the appropriate Court or the competent national authorities of the Republic of Croatia;
ORDERS the Prosecutor to hand over to the Prosecutor of the Republic of Croatia, as soon as possible and no later than 30 days of this Decision becoming final, the material supporting the Indictment against the Accused and all other appropriate evidentiary material; and
FINALLY ORDERS the Prosecutor to file an initial report to the Referral Bench on the progress made by the Croatian Prosecutor in the prosecution of the Accused six weeks after transfer of the evidentiary material to the appropriate Court in the Republic of Croatia and, thereafter, regular reports every three months after commencement of trial on the course of the proceedings before the appropriate Court in the Republic of Croatia.
Done in English and French, the English text being the authoritative.
Signed this fourteenth day of September, 2005,
At The Hague,
Judge Alphons Orie, Presiding Judge
[Seal of the Tribunal]