In Re: The Republic of Macedonia - Case No. IT-02-55-MISC.6

"Decision on the Prosecutor's Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia"

4 October 2002
Trial Chamber I (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· On 5 September 2002 the Prosecutor filed a "Motion to President to Assign Trial Chamber to Prosecutor’s Deferral Request".

· On 6 September 2002 the President assigned the case to Trial Chamber I. The Chamber subsequently received the "Prosecutor’s Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia" (hereinafter "Prosecutor’s Request") of 5 September 2002.

· On 10 September 2002 the Chamber held an informal hearing of the Office of the Prosecutor on the Motion on the part of the Prosecutor’s Request that applied for the issuance of an interim order from the Chamber to stop the commencement of criminal proceedings against two individuals accused on the next day in the Republic of Macedonia. The same day the it rendered its "Decision on the Application of the Prosecutor for an Interim Order and Scheduling Order". It rejected the application for an interim order and scheduling a formal hearing on the Prosecutor’s Request to take place on 25 September 2002.

· On 25 September 2002 the hearing on the Prosecutor’s Request was held. The Chamber heard presentations and arguments of the Office of the Prosecutor represented by Ms. Carla del Ponte and of the Government of the Republic of Macedonia represented by Public Prosecutor General Stavre Djikov.

The Decision

The Trial Chamber granted the Prosecutor’s Request in part, as detailed below.

The Submissions of the Parties

The Prosecutor’s Request for Deferral

The Prosecutor requested the Trial Chamber to issue a formal request pursuant to Rule 9(iii)¹ and 10(A)² of the Rules of Procedure and Evidence to the Republic of Macedonia to defer to the jurisdiction of the Tribunal five investigations and prosecutions of alleged crimes committed by the National Liberation Army (NLA) and the Macedonian forces in Macedonia in 2001. The Prosecutor also requested that the competent authorities of the Republic of Macedonia defer to the jurisdiction of the Tribunal all current and future investigations and prosecutions of alleged crimes committed by members of the NLA and concerning the activities of the Macedonian forces against the Macedonian Albanian civilians in Macedonia in 2001.

The Presentation by the Republic of Macedonia

The Public Prosecutor General submitted an overview on the alleged crimes committed during the year 2001 in the Republic of Macedonia to the Chamber. With regard to the Prosecutor’s Request, he proposed that three cases be deferred to the jurisdiction of the Tribunal (the "NLA leadership" case, the "Mavrovo Road Workers" case and the "Lipkovo Water Reserve" case) and did not oppose to the deferral of the two investigations in questions (the "Neprosteno" and the "Ljuboten" investigations). However he submitted that the request for deferral of all current and future investigations and proceedings be denied.

The Reasoning

The Deferral of the "NLA Leadership" case

This case concerns 10 known individuals who are suspected of belonging to the NLA leadership and of having participated in serious crimes committed by NLA members. In January 2002 the Public Prosecutor of the Republic of Macedonia submitted to the Tribunal a proposal for the prosecution of these 10 individuals pursuant to Articles 2, 3, 5 and 7 of the Statute of the Tribunal. The proposal was again presented at the 25 September hearing.

The Chamber was satisfied that the conditions of Rules 9(iii) and 10(A) of the Rules were satisfied. It took into account the fact that both parties agreed on the deferral and found it appropriate to issue a formal request for deferral.

The Deferral of the "Lipkovo Water Reserve" case

This case concerned an individual suspected of having twice ordered to stop the water supply of the Lipkovo Lake, leaving 100.000 people without fresh water for a period of several weeks in the summer of 2001 in the town of Kumanovo. In January 2002 the Public Prosecutor of the Republic of Macedonia submitted to the Tribunal a proposal for the prosecution of the alleged perpetrator pursuant to Articles 5 and 7 of the Statute of the Tribunal, a proposal again put forth at the 25 September hearing.

The Chamber found appropriate to issue a formal request for deferral for the same reasons stated above in the "NLA Leadership" case.

The Deferral of the "Mavrovo Road Workers" case

The investigation of this case deals with events reported to have taken place on 7 August 2001 on the highway under construction in the area of the village Grupcin. It concerns the abduction of a group of five road workers by NLA members. The workers were then beaten and abused for several hours. According to the Public Prosecutor General two of the 23 suspects under investigation have been identified and arrested. The Republic of Macedonia complied with its obligations under Rule 8³ of the Rules to provide relevant information upon request of the Prosecutor. Following further investigations, the Prosecutor concluded that she could not successfully indict the two individuals in detention.

As the Trial Chamber pointed out, this is a "unique situation", because the Prosecutor seeks the deferral of the investigations of the entire case but at the same time does not intend to prosecute the two individuals.⁴ It goes beyond the scope of what the Chamber called the "classical" deferral application,⁵ which "may block the exercise of the national jurisdiction, but, at the same time, […] does open up the jurisdiction of the Tribunal with regard to a specific case".⁶ This led the Trial Chamber to take the view that "the blocking effect of the deferral of the criminal proceedings against the two individuals on the national jurisdiction of the Republic of Macedonia needs to be remedied to give due weight to the principle of concurrent jurisdiction, as established in article 9(1)⁷ of the Statute".⁸

The Trial Chamber decided to limit this "blocking effect" by a "specific procedural mechanism",⁹ deferring the case to the competence of the Tribunal, in view of the agreement between the parties. At the same time it invited "both parties, alternatively or co-operatively […] to apply for a new hearing before the Chamber within a period of 9 months from the day this decision is rendered".¹⁰

The Deferral of the "Ljuboten" and of the "Neprosteno" investigations

In this case the alleged perpetrators are not known. The "Ljuboten" investigation deals with the killing of five persons in the village of Ljuboten in August 2001 during the conflict between the NLA and Macedonian security forces. The "Neprosteno" investigation concerns the discovery of a mass grave in the region of the village of Neprosteno-Tetovo. In both investigations the Macedonian authorities and the Office of the Prosecutor co-operated in the exhumation of the bodies.

The Trial Chamber considered it appropriate to defer the investigations to the jurisdiction of the Tribunal.

The Deferral of "all current and future investigations and proceedings"

In addition to the above-mentioned cases and investigations, the Prosecutor applied for the issuance of a formal request by the Chamber to the Republic of Macedonia that its courts defer to the jurisdiction of the Tribunal "all current and future investigations and prosecutions" of alleged crimes committed by NLA members during 2001 and of the allegations concerning the activities of the Macedonian forces against Macedonian Albanian civilians during 2001. During the oral hearing the Prosecutor modified her application and requested that the Chamber enters a "clause" in its Decision according to which the judiciary of the Republic of Macedonia would be obliged to inform the Prosecutor about findings in their future investigations and, in particular, obliging the Republic of Macedonia to comply with any declaration of primacy by the Prosecutor in the absence of a formal request for deferral to the jurisdiction of the Tribunal by a Chamber.

The Chamber noted the "intense frustrating effect" that such a far-reaching deferral would have on the Macedonian jurisdiction. It pointed out that such a request for deferral would "effectively block the domestic courts from initiating any investigation or prosecution with regard to these groups of alleged perpetrators".¹¹

The Trial Chamber, in paragraph 49 of its decision, expressed the view that, "when applying the deferral provisions of Rule 9 and 10 of the Rules, in particular, in deciding about the "appropriateness" of a deferral pursuant to Rule 10(A) of the Rules", it is "obliged" to take into account the following factors:

The Trial Chamber noted the Statement of the President of the Security Council demanding that the Tribunal concentrate its work on "high perpetrators only".¹³ Taking into account the aim of the Tribunal and the expressed interest of the Macedonian authorities the Trial Chamber declared that it would appear "inappropriate […] to request the deferral of all current and future investigations and prosecutions, notwithstanding their potential seriousness […] or the status of alleged perpetrators, to the competence of the Tribunal".¹⁴

Finally the Trial Chamber made clear that "the procedure for deferral of cases as enshrined in Rules 9 and 10 of the Rules is to be followed in each case and without exemption" and that "[t]hese rules allow the Prosecutor to propose that a formal request for referral be made (Rule 9), but they also unambiguously state that it is only for a Trial Chamber, seized of such a proposal, to decide and finally issue a formal request to the State concerned".¹⁵

It rejected the application of the Prosecutor as well as her alternative oral application to insert a "clause" in the decision, "transferring the competence of the Chamber for a request for deferral to the Prosecutor.

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1. Rule 9 (Prosecutor's Request for Deferral)
Where it appears to the Prosecutor that in any such investigations or criminal proceedings instituted in the courts of any State:
(iii) what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal, the Prosecutor may propose to the Trial Chamber designated by the President that a formal request be made that such court defer to the competence of the Tribunal.
2. Rule 10 (Formal Request for Deferral)
(A) If it appears to the Trial Chamber seized of a proposal for deferral that, on any of the grounds specified in Rule 9, deferral is appropriate, the Trial Chamber may issue a formal request to the State concerned that its court defer to the competence of the Tribunal.
3. Rule 8 (Request for Information)
Where it appears to the Prosecutor that a crime within the jurisdiction of the Tribunal is or has been the subject of investigations or criminal proceedings instituted in the courts of any State, the Prosecutor may request the State to forward all relevant information in that respect, and the State shall transmit such information to the Prosecutor forthwith in accordance with Article 29 of the Statute.
4. Para. 36.
5. Para. 37.
6. Para. 38.
7. Article 9 (Concurrent jurisdiction)
1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.
8. Para. 39.
9. Ibid.
10. Para. 40.
11. Para. 48.
12. Referring to paragraph 64 of the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council resolution 808 (1993), S/25704, 3 May 1993.
13. The President of the Security Council clearly demanded that "the ICTY […] 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" (Emphasis added for the purpose of this Decision); United Nations, Security Council, Statement by the President of the Security Council, S/PRST/2002/21, 23 July 2002.
14. Para. 51.
15. Para. 53.