Case No. IT-00-41-PT

IN THE REFERRAL BENCH

Before:

Judge Alphons Orie, Presiding
Judge O-Gon Kwon
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision:
5 September 2005

PROSECUTOR

v.

PASKO LJUBICIC

_________________________________________________

DECISION FOR FURTHER INFORMATION IN THE CONTEXT OF THE PROSECUTORíS MOTION UNDER RULE 11BIS

_________________________________________________

The Office of the Prosecutor:

Mr. Mark Harmon

The Government of Bosnia and Herzegovina

per: The Embassy of Bosnia and Hezegovina to The Netherlands, The Hague

Counsel for the Accused:

Mr. Tomislav Jonjic
Ms. Nika Pinter

 

THE REFERRAL BENCH of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the Tribunal");

NOTING the "Request by the Prosecutor under Rule 11bis for Referral of the Indictment to Another Court", filed on 19 July 2005 whereby the Prosecution requests that the Referral Bench order the referral of the case against Mr. Pasko Ljubicic ("the Accused") to the authorities of Bosnia and Herzegovina;

NOTING the Presidentís "Order Appointing a Trial Chamber for the Purposes of Determining Whether the Indictment Should Be Referred to Another Court under Rule 11bis", filed on 17 August 2005, whereby the President appointed this Referral Bench to determine whether the case against the Accused shall be referred to the authorities of Bosnia and Herzegovina pursuant to Rule 11bis of the Rules of Procedure and Evidence ("the Rules");

NOTING the "Defense Response to the Prosecutorís Motion under Rule 11bis for Referral of the Indictment", filed on 20 July 2005 and the "Defence Position to the Prosecutorís Request under Rule 11bis for Referral of the Indictment to Another Court" dated 2 August 2005 whereby the Defence submits that it does not oppose the referral of the Indictment to another court but argues that the Indictment should be referred to the authorities of the Republic of Croatia;

CONSIDERING that pursuant to Rule 11bis of the Rules and in view of Security Council Resolutions 1534(2004) and 1503(2003) the evaluation of whether a case should be referred to the authorities of a State is a two-step process, requiring consideration of (1) whether the gravity of the crimes charged and the level of responsibility of the Accused renders the case appropriate for referral because it involves intermediate or lower-rank accused, and (2) whether the State to which the Prosecution seeks to refer the case is a competent national jurisdiction whose legal system is compatible with the requirements of Rule 11bis(B);

CONSIDERING that the Referral Bench wishes to obtain submissions on both the issue of the gravity of the crimes and the level of responsibility of the Accused and the compatibility of the legal system of Bosnia and Herzegovina with Rule 11bis(B);

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 11bis and 54 of the Rules,

I. ORDERS the Parties and INVITES the Government of Bosnia and Herzegovina to file submissions by 16 September 2005 on the following questions, including the weight to be given to each of them:

  1. Is the gravity of the crimes charged in the Indictment compatible with referral of the case to another court under Rule 11bis of the Rules?

  2. Is the level of the responsibility of the Accused compatible with referral of the case another court under Rule 11bis of the Rules? In particular, does Rule 11bis(C) refer to the role of the Accused in the commission of the alleged offences, or to the position and rank of the Accused in the civil or military hierarchy, or to both?

II. In relation to the compatibility of the legal system of Bosnia and Herzegovina with Rule 11bis(B), ORDERS the Parties and INVITES the Government of Bosnia and Herzegovina to file written submissions on any matter which the Parties or the Government of Bosnia and Herzegovina respectively may deem relevant to the proceedings for referral in the present case by 16 September 2005. With respect to any matter previously discussed by the Referral Bench in the following decisions: Prosecutor v. Radovan Stankovic, Case No IT-96-23/2-PT, "Decision on Referral of Case under Rule 11bis", 17 May 2005; Prosecutor v. Mitar Rasevic and Savo Todovic, Case No IT-97-25/1-PT, "Decision on Referral of Case under Rule 11bis with Confidential Annexes I and II", 8 July 2005; Prosecutor v. Zeljko Mejakic, Momcilo Gruban, Dusan Fustar and Dusko Knezevic, Case No IT-02-65-PT, "Decision on Prosecutorís Motion for Referral of Case pursuant to Rule 11bis" 20 July 2005; and Prosecutor v. Gojko Jankovic Case No IT-96-23/2-PT, "Decision on Referral of Case under Rule 11bis", 22 July 2005, submissions may be made by reference to views expressed in one or more of those decisions, to which may be added any further element or argument which it is desired to raise.

ORDERS the Parties to be prepared to make oral submissions on the Prosecutionís request for referral and INVITES the Government of Bosnia and Herzegovina to indicate whether they would like to make further oral submissions on the Prosecutionís Request.

REQUESTS the Registrar to transmit this decision immediately to the Government of Bosnia and Herzegovina.

 

Done in English and French, the English text being the authoritative.

_________________________
Judge Alphons Orie,
Presiding Judge

Dated this fifth day of September 2005
At The Hague,
Netherlands

[Seal of the Tribunal]