Case No. IT-95-13/1-PT

IN THE REFERRAL BENCH

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

Registrar:
Mr. Hans Holthuis

Decision:
15 April 2005

PROSECUTOR

v.

MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN

_____________________________________________

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

_____________________________________________

The Office of the Prosecutor:

Ms. Carla Del Ponte, Prosector

The Government of Croatia

per: The Embassy of Croatia to The Netherlands, The Hague

Counsel for the Accused:

Mr. Miroslav Vasic for Mile Mrksic
Mr. Borivoje Borovic and Ms. Mira Tapuskovic for Miroslav Radic
Mr. Novak Lukic and Mr. Momcilo Bulatovic for Veselin Sljivancanin

The Government of Serbia and Montenegro

per: The Embassy of Serbia and Montenegro to The Netherlands, The Hague

 

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 9 February 2005 whereby the Prosecution requests that a Trial Chamber order the referral of the case against Mr. Mile Mrksic, Miroslav Radic and Veselin Sljivancanin ("the Accused") either to the authorities of Croatia, or to the authorities of Serbia and Montenegro (the "Request");

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 14 February 2005, whereby the President appointed this Referral Bench to determine whether the case against the Accused shall be referred to the authorities of Croatia or to the authorities of Serbia and Montenegro pursuant to Rule 11bis of the Rules of Procedure and Evidence ("the Rules");

NOTING the "Joint Defense Response to Request by the Prosecutor under Rule 11bis for Referral of the Indictment to another Court", filed on 1 March 2005 whereby the Defence submits that while the conditions for referral of an indictment to another court as set out in Rule 11bis(C) are met in this case, the conditions for referral pursuant to Rule 11bis(B) are only met with respect to the authorities of Serbia and Montenegro;

CONSIDERING that the crimes charged in the Indictment were allegedly committed in Croatia and therefore a referral to Croatia would fall within the scope of Rule 11bis(A)(i) of the Rules, and that the Accused were arrested or surrendered voluntarily to the authorities of Serbia and Montenegro and therefore a referral to Serbia and Montenegro would fall within the scope of Rule 11bis(A)(ii);

NOTING that, under Rule 11bis(B) of the Rules, "[t] he Referral Bench may order such referral [Ö] 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;"

NOTING that Rule 11bis(C) of the Rules provides that "[in] determining whether to refer the case in accordance with paragraph (A), the Referral Bench shall, in accordance with the Security Council Resolution 1534 (2004) of 26 March 2004, consider the gravity of the crimes charged and the level of responsibility of the accused";

NOTING that Security Council Resolution 1534 (2004) refers to "the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions";

NOTING that Security Council Resolution 1503 (2003) recommended that the ICTY concentrate "on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTYís jurisdiction and [transfer] cases involving those who may not bear this level of responsibility to competent national jurisdictions";

CONSIDERING that the evaluation of whether a case should be referred to the authorities of a State is therefore 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 Indictment alleges with respect to each of the Accused all forms of individual criminal responsibility pursuant to Article 7(1) as well as individual criminal responsibility of superiors pursuant to Article 7(3) of the Statute in relation to persecutions, extermination, murder, torture, inhumane acts and cruel treatment charged as crimes against humanity and/or violations of the laws or customs of war allegedly committed in the course of the evacuation of Vukovar hospital in November 1991;

CONSIDERING that although the Prosecutionís Request discusses the gravity of the alleged offences and the level of responsibility of the Accused in this case, the Referral Bench would benefit from detailed submissions on these matters from the Parties, the Government of Croatia and the Government of Serbia and Montenegro, including whether the "level of responsibility" in Rule 11bis(C) refers 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 both; and whether special weight should be given to any particular considerations relating to the gravity of the alleged offences or the level or responsibility of the Accused;

CONSIDERING that the Referral Bench wishes to obtain both submissions on the issue of the gravity of the crimes and the level of responsibility, and submissions by the Government of Croatia, the Government of Serbia and Montenegro and the Parties on the compatibility of the legal systems of Croatia and of Serbia and Montenegro 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 Croatia and the Government of Serbia and Montenegro to file submissions by 28 April 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 systems of Croatia with Rule 11bis(B), INVITES the Government of Croatia to provide by 28 April 2005 any additional documents, in English if possible, in addition to those submitted on 9 February 2005 in the case of Prosecutor v. Rahim Ademi and Mirko Norac, Case No.: IT-04-78-PT, which it considers of relevance for the present case.

In relation to the compatibility of the legal systems of Serbia and Montenegro with Rule 11bis(B), INVITES the Government of Serbia and Montenegro to provide the following documents, in English if possible, by 28 April 2005:

  1. The relevant provisions of the national criminal code that were in force in Serbia and Montenegro in November 1991 and of the current national criminal code relating to war crimes and crimes against humanity, as well as to all modes of criminal liability, the grounds of justification or absolute extenuation and the determination of sentence;

  2. The relevant provisions regarding the establishment and jurisdiction of the Prosecutorís Office for War Crimes and the Belgrade District Courtís War Crimes Panels, including the provisions regarding the acceptance of the transfer of ICTY cases to Serbia and Montenegro;

  3. The relevant provisions relating to the protection of witnesses, before, during and after testimony and a presentation of the measures available to implement the relevant provisions; in particular, are there adequate provisions for meeting last minute requests for protective measures;

  4. The relevant provisions on detention at the pre-trial and trial stages (including the detention facilities available for this purpose) and the conditions of such detention, particularly regarding the monitoring and restrictions which may be imposed on the communications by the Accused with other persons outside the detention facility;

FURTHER INVITES the Government of Croatia to file further written submissions or, if relevant, refer back to its previous written or oral submissions before the Tribunal, by 28 April 2005 on the following matters:

  1. What are the mechanisms by which the courts in Croatia could apply international treaty or customary law in domestic proceedings?

  2. Would it be possible for the counsel presently retained to continue to represent the Accused if the case is referred to Croatia? Can a counsel who is not a member of the Bar Association of Croatia represent an accused before the Croatian courts? Is there a system in place in Croatia for remuneration of counsel defending an indigent accused?

  3. Any other issue that the Government considers of relevance in relation to the particular case and that has not yet been addressed in its prior written submissions or in the hearing in the case of Prosecutor v. Ademi and Norac, Case No.: IT-04-78-PT of 17 February 2005.

FURTHER INVITES the Government of Serbia and Montenegro to file written submissions by 28 April 2005 on the following matters:

  1. Would the substantive law applicable to the case Ė if referred Ė be the criminal code in force in November 1991 or the current criminal code?

  2. What are the mechanisms by which the courts in Serbia and Montenegro could apply international treaty or customary law in domestic proceedings?

  3. Pursuant to the law of Serbia and Montenegro, what court will be competent to hear the case, if referred?

  4. Would the evidence gathered by the ICTY be directly admissible as such before the competent court in Serbia and Montenegro? Is this court in a position to take judicial notice of findings made by the ICTY? In what circumstances, if any, can written statements, transcripts, and depositions be used in evidence?

  5. How would the Indictment against the Accused be incorporated and applied in the criminal legal procedure under the applicable law in Serbia and Montenegro? Can the Indictment be subsequently amended in the course of the proceedings? If so, to what extent and by which procedure?

  6. If the case is to be referred, would there be a need for additional pre-trial investigation or would the case commence at trial stage? Will the prosecutorial services be able to call all the witnesses, including international experts, as intended by the ICTY Prosecution?

  7. Would it be possible for the counsel presently retained to continue to represent the Accused if the case is referred to Serbia and Montenegro? Is there a system in place in Serbia and Montenegro for remuneration of counsel defending an indigent Accused? What guarantees for the right to counsel at pre-trial and trial stage exist under the applicable law of criminal procedure?

  8. What will be the estimate length of the pre-trial, trial and appellate proceedings in this case before the competent court of Serbia and Montenegro?

  9. If convicted, would the Accused be given credit for the time spent in detention at the ICTY?

  10. What are the provisions and practice for early release and parole in Serbia and Montenegro?

  11. Any other relevant issue.

ORDERS the Prosecution to file further submissions on the following matters by 28 April 2005:

  1. Is the substantive law applicable to the case the criminal code that was in force in November 1991 or the current criminal code?

  2. What are the mechanisms by which the courts in Croatia and in Serbia and Montenegro could apply international treaty or customary law in domestic proceedings?

  3. Should the Croatian or the Serbian indictment respectively, accurately reflect all charges of the ICTY Indictment and all modes of liability pursuant to Article 7(1) and Article 7(3) of the Statute?

  4. What protective measures are expected to be needed for witnesses, in respect to both a potential hearing in Croatia and a potential hearing in Serbia and Montenegro? Is it to be anticipated that witnesses, in their contact with prosecutorial services, will ask for additional protective measures?

  5. Does the level of interstate mutual assistance in criminal matters sufficiently facilitate a fair trial, especially with respect to summoning witnesses and taking witnessesí depositions?

  6. How does the Prosecution envision to implement Rule 11bis(D)(iii) of the Rules (i.e. transfer of hard copy, electronic format)?

  7. How does the Prosecution envision to monitor the proceedings, pursuant to Rule 11bis(D)(iv) of the Rules?

  8. Any other relevant issue.

ORDERS the Defence to provide written submissions on the following matters by 28 April 2005:

  1. Would the substantive law applicable to the case be the criminal code that was in force in November 1991 or the current criminal code?

  2. What are the mechanisms by which the courts in Croatia or in Serbia and Montenegro could apply international treaty or customary law in domestic proceedings?

  3. What protective measures are expected to be needed for (Defence) witnesses, in respect to both a potential hearing in Croatia and a potential hearing in Serbia and Montenegro?

  4. Does the level of interstate mutual assistance in criminal matters sufficiently facilitate a fair trial, especially with respect to summoning witnesses and taking witnessesí depositions?

  5. Would any issue of due process arise if the ICTY Indictment is received without prior investigations in Croatia or in Serbia and Montenegro? Can the proceedings in this case continue from the stage they currently are before the ICTY or there is a need for some pre-trial investigatory steps to be taken or repeated?

  6. Would it be possible for the counsel presently retained to continue to represent the Accused if the case is transferred to Croatia, or respectively to Serbia and Montenegro?

  7. Would observers sent by the Prosecutor, in accordance with Rule 11bis, be considered by the Defence an appropriate and sufficient tool to monitor the fairness of the proceedings before the competent Croatian or Serbian court?

  8. Any other relevant issue.

ORDERS the Parties to be prepared to make oral submissions on the Prosecutionís request for referral and INVITES the Government of Croatia and the Government of Serbia and Montenegro to indicate whether they would like to make further oral submissions on the Prosecutionís Motions.

REQUESTS the Registrar to transmit this decision immediately to the Government of Croatia and to the Government of Serbia and Montenegro.

 

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

_______________________
Judge Alphons Orie,
Presiding Judge

Dated this fifteenth day of April 2005
At The Hague,
Netherlands

[Seal of the Tribunal]