decision regarding preliminary motion to the prosecutor by the accused zdravko mucic requesting deferral

IN THE TRIAL CHAMBER

Before: Judge Gabrielle Kirk McDonald, Presiding

Judge Ninian Stephen

Judge Lal C. Vohrah

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 30 September 1996

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

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DECISION REGARDING PRELIMINARY MOTION TO THE PROSECUTOR
BY THE ACCUSED ZDRAVKO MUCIC REQUESTING DEFERRAL

_________________________________________________________

The Office of the Prosecutor:

Mr. Eric Ostberg

Ms. Teresa McHenry

Counsel for the Accused:

Mr. Branislav Tapuskovic, for Zdravko Mucic

THE TRIAL CHAMBER

NOTING that the indictment issued by the Office of the Prosecutor ("Prosecution") against, inter alia, Zdravko Mucic, was confirmed on 21 March 1996;

NOTING that Zdravko Mucic was convicted for the murder of Esad Bubalo, a prisoner of Celebici camp, by the District Military Court of Mostar, Department of Konjic, Bosnia and Herzegovina, and sentenced to a 15 year term of imprisonment on 1 July 1994;

NOTING that, on 29 August 1996, the Defence submitted a document entitled "Preliminary

Motion to the Prosecutor by the Accused Zdravko Mucic" in which it invites the Prosecution to "propose to the Trial Chamber . . . that a formal request be made that the national court defer to the competence of the Tribunal" in regard to the above-mentioned conviction;

CONSIDERING the Prosecution’s Response of 12 September 1996, in which it indicates its disagreement with the requested action;

NOTING that Rule 9 of the Rules of Procedure and Evidence of the International Tribunal (the "Rules") provides that:

Where it appears to the Prosecutor that in any such investigations or criminal proceedings instituted in the courts of any State:

(i) the act being investigated or which is the subject of those proceedings is characterised as an ordinary crime;

(ii) there is a lack of impartiality or independence, or the investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted; or

(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;

NOTING that Sub-rule 10(A) of the Rules reads:

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.

FINDS that the Rules contemplate that, before issuing a request for deferral, the Trial Chamber must be "seized of a proposal" to do so by the Prosecutor;

FINDS further that an order requiring the Prosecution to submit to the Trial Chamber a proposal of deferral is inappropriate and not within the authority of the Trial Chamber;

FOR THESE REASONS

DENIES the Defence Motion insofar as it seeks any action by the Trial Chamber in regard to the criminal conviction of Zdravko Mucic by the District Military Court of Mostar, Department of Konjic, Bosnia and Herzegovina.

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

______________________

Gabrielle Kirk McDonald

Presiding Judge

Dated this thirtieth day of September 1996

At The Hague

The Netherlands

[Seal of the Tribunal]