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 PROSECUTOR’S 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 President’s "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 […] 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 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 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 Prosecution’s 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:
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:
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:
FURTHER INVITES the Government of Serbia and Montenegro to file written submissions by 28 April 2005 on the following matters:
ORDERS the Prosecution to file further submissions on the following matters by 28 April 2005:
ORDERS the Defence to provide written submissions on the following matters by 28 April 2005:
ORDERS the Parties to be prepared to make oral submissions on the Prosecution’s 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 Prosecution’s 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]