The Prosecutor v. Mirko Norac - Case No. IT-04-76-I

“Decision on the Prosecutor’s Motion to Oppose the Initial Appearance of Mirko Norac”

30 June 2004
Trial Chamber I (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· On 11 May 2004, the Prosecutor filed an indictment (“Indictment”) against Mirko Norac (“Accused”). That same day, the President of the Tribunal assigned Judge Liu to review the Indictment.

· On 20 May 2004, the Bureau decided, pursuant to Rule 28 of the Rules of Procedure and Evidence (“Rules”)¹, to admit the Indictment for review by a Judge.

· On 22 May 2004, Judge Liu confirmed the Indictment pursuant to Rule 47 (E) and ( F) of the Rules².

· On 27 May 2004, the Prosecution filed its “Motion for Joinder” whereby it sought to join the case against the Accused with the case against Rahim Ademi.³

· On 23 June 2004, the President assigned the case against the Accused to the present Trial Chamber.

· On 24 June 2004, the Prosecution filed its “Motion Opposing Decision for First Appearance ” (“Prosecution’s Motion”), whereby it argued that an initial appearance was not necessary because the case against the Accused could, at the Prosecution’s subsequent request, be referred by the Trial Chamber to the Courts of the Republic of Croatia pursuant to Rule 11 bis of the Rules.⁴

Decision

The Trial Chamber found that the Accused had to be called to enter a plea to the charges raised against him in the Indictment, in accordance with Article 20 of the Statute and Rule 62 of the Rules, and dismissed the Prosecution’s Motion.

Reasoning

The Trial Chamber first noted that the Prosecution’s Motion was in any case unfounded since no order for an initial appearance had been issued by the Chamber or the Pre -Trial Judge at the time of the Motion. Such order, scheduling the initial appearance for the 8th of July 2004, was issued on the 30th of June 2004.⁵

With regard to the “Motion for Joinder”, the Trial Chamber held that the Accused “has to be given an opportunity to enter a plea before the Tribunal” prior to any decision on the Motion for Joinder since, if the Accused pleads guilty, such motion becomes “redundant”. In fact, the core legal issue addressed by the Trial Chamber pertains to the need for an initial appearance and to the right of the Accused to understand the charges brought against him:

Right of the Accused to understand the Indictment

The Trial Chamber first referred to its obligation, pursuant to Article 20(3) of the Statute, to “read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea”. It then held:

“[…] the formal charges are brought against the Accused during the initial appearance , and that is only at this moment that the Chamber, in accordance with art. 20( 3) of the Statute can satisfy itself that the accused understands the Indictment and that his rights, including his right to counsel as explicitly expressed in Rule 62⁶, are respected”.

With respect to the right to understand the Indictment, the Trial Chamber held that such right is an “essential prerequisite for the accused to exercise his rights of defense, including the right to challenge the jurisdiction of the Tribunal under Rule 72 of the Rules”.

________________________________________
1. Rule 28 (Reviewing and Duty Judges) reads in its relevant part: “(A) On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President. The President shall refer the matter to the Bureau which shall determine whether the indictment, prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal. If the Bureau determines that the indictment meets this standard, the President shall designate one of the permanent Trial Chamber Judges for the review under Rule 47. If the Bureau determines that the indictment does not meet this standard, the President shall return the indictment to the Registrar to communicate this finding to the Prosecutor.”
2. Rule 47 (Submission of Indictment by the Prosecutor) reads in its relevant part :
(E) The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 19, paragraph 1, of the Statute, whether a case exists against the suspect.
(F) The reviewing Judge may:
(i) request the Prosecutor to present additional material in support of any or all counts;
(ii) confirm each count;
(iii) dismiss each count; or
(iv) adjourn the review so as to give the Prosecutor the opportunity to modify the indictment.”
3. The two cases were joined on 30 July 2004. See the Ademi & Norac case information sheet (IT-04-78) available on the Tribunal's website (www.un.org/icty) under "ICTY at a Glance".
4. Rule 11 bis (Referral of the Indictment to Another Court) reads: “
(A) If an indictment has been confirmed, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a Trial Chamber for the purpose of referring a case to the authorities of a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested, so that those authorities should forthwith refer the case to the appropriate court for trial within that State.
(B) The Trial Chamber 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.
(C) In determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall, in accordance with Security Council Presidential Statement S/PRST/2002/21, 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 Chamber 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 Trial Chamber 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 Trial Chamber 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 Trial Chamber, the Chamber 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 Trial Chamber or a Judge may also issue a warrant for the arrest of the accused.”
5. Norac, IT-04-76-I, Scheduling Order for an Initial Appearance, and Request for the Detention of Mirko Norac and his Surrender to the Netherlands, 30 June 2004.
6. Rule 62(i) (Initial Appearance of the Accused) reads: “Upon transfer of an accused to the seat of the Tribunal, the President shall forthwith assign the case to a Trial Chamber. The accused shall be brought before that Trial Chamber or a Judge thereof without delay, and shall be formally charged. The Trial Chamber or the Judge shall: (i) satisfy itself, himself or herself that the right of the accused to counsel is respected; […]”.