Decision for Further Information in the Context of the Prosecutor’s Motions Under Rule 11bis

Case No. IT-97-25/1-PT

IN THE REFERRAL BENCH

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

Registrar:
Mr. Hans Holthuis

Decision:
14 April 2005

PROSECUTOR

MITAR RASEVIC and
SAVO TODOVIC

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DECISION FOR FURTHER INFORMATION IN THE CONTEXT OF THE PROSECUTOR’S MOTIONS UNDER RULE 11BIS

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The Office of the Prosecutor:

Mrs. Hildegard Uertz-Retzlaff
Mr. William Smith
Ms. Christina Moeller

The Government of Bosnia and Herzegovina

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

Counsel for the Accused:

Mr. Vladimir Domazet for Mitar Rasevic
Mr. Aleksandar Lazarevic for Savo Todovic

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 motions by the Prosecutor under Rule 11bis of the Rules of Procedure and Evidence ("the Rules") filed partly confidentially on 1 November 2004 and 4 November 2004 whereby the Prosecution requests respectively that a Trial Chamber orders the referral of the case against Savo Todovic and Mitar Rasevic to the authorities of Bosnia and Herzegovina ("Motions");

NOTING the President’s orders appointing a Trial Chamber for the purposes of determining whether the indictment should be referred to another court under Rule 11bis issued on 2 November 2004 and 5 November 2004 respectively whereby the President appointed this Referral Bench to determine whether the case against the Savo Todovic and Mitar Rasevic shall be referred to the authorities of Bosnia and Herzegovina pursuant to Rule 11bis;

NOTING that no submissions in response to the Prosecution’s Motions were made by the Defence;

CONSIDERING that while the Prosecution’s Motions were filed separately, Mitar Rasevic and Savo Todovic were indicted together by an indictment confirmed on 17 June 1997, for acts allegedly committed in the same factual circumstances and the proceedings against the two accused were never severed and therefore it will be appropriate for the Referral Bench to deal with the Motions simultaneously;

CONSIDERING that the crimes charged in the indictments were allegedly committed in Bosnia and Herzegovina and that the referral requested falls within the scope of Rule 11bis(A)(i) of the Rules;

NOTING that, under Rule 11bis(B) of the Rules, "[ t] he Trial Chamber may order such referral [ …] 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 Trial Chamber 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 ICTY’s 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 indictments allege 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 crimes against humanity, grave breaches and serious violations of the laws or customs of war allegedly committed in the course of a persecution campaign against non-Serb civilians in Foca KP Dom prison camp;

CONSIDERING that although the Prosecution’s Motions discuss the gravity of the alleged offences and the level of responsibility of the each of the Accused, the Referral Bench would benefit from detailed submissions on these matters from the Parties and the Government of Bosnia and Herzegovina, 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 also submissions by the Government of Bosnia and Herzegovina and the Parties on 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 28 April 2005 on the following questions, including the weight to be given to each of them:

Is the gravity of the crimes charged in the indictment compatible with referral of the case to the authority of Bosnia and Herzegovina under Rule 11bis of the Rules?
Is the level of the responsibility of the Accused compatible with referral of the case to the War Crimes Chamber of the State Court in Bosnia and Herzegovina 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), INVITES the Government of Bosnia and Herzegovina to provide any additional documents, in English if possible, in addition to those submitted on 25 February 2005 in the case of Prosecutor v. Zelko Mejakic et al, Case No.: IT-02-65-PT, which it considers of relevance for the present case.

FURTHER INVITES the Government of Bosnia and Herzegovina 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:

What are the mechanisms by which the courts in Bosnia and Herzegovina could apply international treaty or customary law in domestic proceedings?
What would be the legal basis in the domestic law for a charge of persecutions committed inter alia through deportation and forcible transfer?
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 of 3-4 March 2005.

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

What are the mechanisms by which the courts in Bosnia and Herzegovina could apply international treaty or customary law in domestic proceedings?

What would be the legal basis in the domestic law for a charge of persecutions committed inter alia through deportation and forcible transfer?

Any other issue that the Prosecution 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 of 3-4 March 2005.

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

Would the substantive law applicable to the case be the criminal code that was in force in April 1992 or the current criminal code?

What are the mechanisms by which the courts in Bosnia and Herzegovina could apply international treaty or customary law in domestic proceedings?

What would be the legal basis in the domestic law for a charge of persecutions committed inter alia through deportation and forcible transfer?

What protective measures are expected to be needed for (Defence) witnesses in view of a potential hearing in Bosnia and Herzegovina?

Does the level of intrastate mutual assistance in criminal matters, or as far as necessary interstate mutual assistance, sufficiently facilitate a fair trial, especially with respect to summoning witnesses and taking witnesses’ depositions?

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

Would it be possible for the counsel presently retained to continue to represent the Accused if the case is transferred to Bosnia and Herzegovina?

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 BiH State Court?
Any other relevant issue.

ORDERS the Parties to be prepared to make oral submissions on the Prosecution’s request for referral and INVITES the Government of Bosnia and Herzegovina to indicate whether it would like to make further oral submissions on the Prosecution’s Motions.

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

REQUESTS the Registrar to provide the Accused with copies of the following documents in the case of Prosecutor v. Zelko Mejakic et al, Case No.: IT-02-65-PT: (i) Decision for Further Information in the Context of the Prosecutor’s Request under Rule 11 bis, issued by the Specially Appointed Chamber on 9 February 2005; (ii) Response by the Government of Bosnia and Herzegovina (BiH) to Questions Posed by the Specially Appointed Chamber in its Decision for Further Information in the Context of the Prosecutor’s Request under Rule 11 bis, dated 22 February 2005; (iii) Prosecution’s Further Submissions pursuant to Chamber’s Order of 9 February 2005 dated 21 February 2005; (iv) transcript of the public hearing of 3 and 4 March 2005; and (v) Response by the Government of Bosnia and Herzegovina to the Request for Further Written Submissions by the Referral Bench in the Mejakic and Stankovic Cases dated 22 March 2005.

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

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Judge Alphons Orie, Presiding Judge

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

[Seal of the Tribunal]