Case No. IT-04-78-PT

The Office of the Prosecutor:

Carla Del Ponte, Prosecutor

Counsel for the Accused:

Cedo Prodanovic for Rahim Ademi
ZeljkoOlujic for Mirko Norac

Case No. IT-04-78

I. Introduction

1. Pursuant to Rule 11 bis of the Rules of Procedure and Evidence, the Prosecutor requests the Trial Chamber to refer the case to the authorities of Croatia for trial by an appropriate court within that State. Since this is the first motion of its kind, it addresses certain legal and procedural issues in some detail.
2. An indictment against the accused RAHIM ADEMI (Case No. IT-01-46) was confirmed on 8 June 2001, and a Second Amended indictment against him was issued on 1 February 2002. He voluntarily surrendered to the Tribunal on 25 July 2001. The Prosecutor does not consider that he was at any time "arrested" within the meaning of Sub-rule 11 bis (A) (ii). The accused RAHIM ADEMI was provisionally released on 20 February 2002.
3. An indictment against MIRKO NORAC (Case No. IT-04-76) was confirmed on 20 May 2004. He was at that time serving a sentence of imprisonment in Croatia in connection with an unrelated matter. An arrest warrant was not issued. However, on 8 July 2004, for the purposes of escorting him to make an initial appearance before the Tribunal, MIRKO NORAC was detained on behalf of the Tribunal by the authorities of Croatia and by the authorities of the Netherlands. The Prosecutor does not consider that he was at any time "arrested" within the meaning of Sub-rule 11 bis (A) (ii). The accused MIRKO NORAC remains in custody in Croatia serving a sentence of imprisonment.
4. On 30 July 2004, Trial Chamber I granted the Prosecution Motion for Joinder of the Accused, dated 27 May 2004, and confirmed that the Indictment attached to that motion was the official indictment against both accused. For ease of reference, a copy of that last indictment is attached to this request as Annex I.

II. The Law

5. Rule 11 bis provides for the referral of a case from the International Tribunal to the Authorities of a State. A case may be transferred to the authorities of a State:

1. in whose territory the crime was committed; or
2. in which the accused was arrested; or
3. having jurisdiction and being willing and adequately prepared to accept such a case.

6. Should more than one State have an interest in the prosecution of a case, the Prosecutor would interpret these provisions as ranking the possible States in descending order of priority. In accordance with the principle that justice in criminal matters should be rendered as closely as possible to the victims and to the place where the crimes were committed, the Prosecutor considers that, where possible, a case should be referred to the authorities of the State where the crimes alleged took place. The sub-paragraphs (i) to (iii) are listed disjunctively, not cumulatively. Nevertheless, the Prosecutor considers it important to ascertain, before referring a case to any State whether the State in question is willing and adequately prepared to prosecute the case.
7. The purpose of the referral of a case by a Trial Chamber to the authorities of a State is that those authorities should forthwith refer the case to the appropriate court for trial within that State. The Prosecutor observes that Rule 11 bis does not provide for a Trial Chamber of the Tribunal to refer a case directly to a court in a State.
8. Rule 11 bis (B) provides that a Trial Chamber may order such referral proprio motu or at the request of the Prosecutor, if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. The Prosecutor, and, where appropriate, the Accused shall be given the opportunity to be heard.
9. Rule 11 bis (C) sets out the two criteria which a Trial Chamber shall consider in determining whether to refer a case to the authorities of a State: the gravity of the crimes charged, and the level of responsibility of the accused. The Trial Chamber is to consider the gravity of the crimes charged and the level of responsibility of the accused in accordance with Security Council resolution 1534 (2004). The Prosecutor considers the effect of this Sub-rule to be that a case will be suitable for referral if it qualifies on either criterion.
10. In paragraph 4 of Security Council resolution 1534 (2004), the Security Council:

"Calls on the ICTY (…) Prosecutor(s) to review the case load of the ICTY (…) in particular with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions, as well as the measures which will need to be taken to meet the Completion Strategies referred to in resolution 1503 (2003) …".

In resolution 1503 (2003), the Security Council stated:

"Recalling and reaffirming in the strongest terms the statement of 23 July 2002 made by the President of the Security Council (S/PRST/2002/21), which endorsed the ICTY’s strategy for completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010 (…), by concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions".

The President of the Security Council’s statement of 23 July 2002 (S/PRST/2002/21), to which an earlier version of Rule 11 bis referred¹, had indicated inter alia:

"The Council recognises, as it has done on other occasions . . ., that the ICTY should 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. The Security Council therefore endorses the report’s broad strategy for the transfer of cases involving intermediary and lower-level accused to competent national jurisdictions as likely to be in practise the best way of allowing the ICTY to achieve its current objective of completing all trial activities at first instance by 2008."

11. In its earlier Resolution 1329 (2000), the Security Council had:

"(taken) note of the position expressed by the International Tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors," and

"(recalled) that the International Tribunals and national courts have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law, and noting that the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia provide that a Trial Chamber may decide to suspend an indictment to allow for a national court to deal with a particular case."

12. More recently, on 4 August 2004, the President of the Security Council declared that:

"The Security Council emphasizes the importance of the referral of cases involving lower and intermediate rank accused to competent national jurisdictions in achieving the Completion Strategies, and recalls the provisions of its resolutions 1503 (2003) and 1534 (2004), including the call for assistance to ensure the success of this effort."²

13. Rule 11 bis explicitly provides that, when an order of referral is issued by a Trial Chamber:

(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.

If an accused has been provisionally released, the Prosecutor does not consider it to be necessary for that accused to be returned to the custody of the Tribunal before the Trial Chamber can decide to refer the case to a State pursuant to Rule 11 bis. It may, however, be necessary to revoke an order for provisional release, or to vary the conditions attached to a provisional release order if their continuation would be incompatible with new orders being issued by the domestic court. If the accused is detained by the Tribunal, the Prosecutor considers it imperative that proceedings before the Tribunal, particularly orders authorizing the detention of the accused, continue until such time as the accused is transferred to the custody of the State to which the case is referred.

14. The Trial Chamber may also issue a warrant for the arrest of the accused, which shall specify the State to which he is to be transferred for trial. The Prosecutor would not, however, consider such a step to be necessary where an accused has already been granted provisional release.
15. At any time after an order has been issued pursuant to Rule 11 bis but 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. Where an order issued pursuant to Rule 11 bis 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 Articles 9, 10 and 29 of the Statute. Given the terms of Sub-rule (D)(iv), the Prosecutor does not consider it necessary to seek a separate order for monitoring the proceedings in the national courts.

III. The gravity of the crimes charged, and the level of responsibility of the accused:

16. The Prosecutor considers that there are certain cases which, although they would merit prosecution in the international forum, would also be suitable for prosecution before a competent national court. The present case is one of those that might be prosecuted either way.
17. Rahim ADEMI was a Brigadier in the Croatian Army and was appointed Acting Commander of the Gospic Military District due to the illness of the Commander. Mirko NORAC was the Commander of the Ninth Guards Brigade and was subordinated to Rahim ADEMI. Both were subordinated to the Chief of the Main Staff, Janko Bobetko, who was indicted by the Tribunal and is now deceased.
18. The gravity of the crimes can been assessed from the indictment: the crimes alleged encompass the unlawful killing of at least 29 Serb civilians, and the infliction of serious injury on others. Many of the victims were women and elderly people. At least five Serb soldiers who had been captured were killed or wounded. Approximately 164 homes and 148 barns and outbuildings (being a majority of the buildings in the villages within Medak Pocket) were destroyed by fire or explosives. Looting and plunder took place of personal belongings, household goods, furniture, farm animals, farm machinery and other equipment. Wells were polluted.
19. On this basis, the Prosecutor considers that, as matters stand, neither the gravity of the crimes alleged nor the level of responsibility of the accused demand that this case be brought to trial before the International Tribunal. In all the circumstances therefore the Prosecutor regards the present case as suitable for referral under Rule 11 bis.

IV. The case should be referred to the authorities of Croatia:

20. In the present case, the crimes charged in the indictment were committed on the territory of Croatia. As indicated above, the Prosecutor considers that, where possible, a case should be referred to the authorities of the State where the crimes allegedly took place so that justice be rendered as closely as possible to the victims. The Prosecutor consequently proposes that the case be referred for prosecution and trial to the Croatian authorities. As far as the Prosecutor knows, no other State has indicated to the Prosecutor that it has jurisdiction and is willing and adequately prepared to accept the case.
21. Croatia has territorial jurisdiction by virtue of the principle of concurrent jurisdiction enshrined in Article 9 of the Statute, as also recognised by sub-paragraph (A) (i) of Rule 11 bis. Nevertheless, the Prosecutor has ascertained that Croatia is willing and adequately prepared to prosecute the accused in its own courts.
22. The Croatia Authorities, specifically, Prime Minister I. Sanader, Foreign Minister M. Zuzul and Minister of Justice V. Skare-Ozbolt; State Attorney M. Bajic and his deputies; President of the Zagreb County Court, B. Rumenjak and the Judges of that court – have repeatedly expressed to the Prosecutor their willingness and readiness to try this case before the relevant domestic court. The Croatian authorities also gave to the Prosecutor assurances that all necessary legal and technical conditions would be provided for a fair trial in this case without any interference in the judicial process.³
23. According to several available sources, including reports of the OSCE mission to Croatia⁴, a limited number of cases from the Tribunal could apparently be processed in an effective and fair manner despite the fact that, overall, problems still exist in the Croatian judicial system in the processing of the war crimes cases (especially, as indicated by the OSCE reports, before the lower level courts in terms of ethnic bias). As reported by the OSCE Mission in Croatia, since late last year and during the first half of this year the Croatian Parliament amended its legislation governing war crimes, command responsibility and other international humanitarian legal issues.⁵ It appears that the OSCE Mission to Croatia’s reports and assessments were positively received by the EU Presidency and the OSCE Permanent Council.⁶
24. Pursuant to Articles 28 and 49(2) of the Croatian law, when a case is referred by the International Tribunal pursuant to Rule 11 bis for domestic prosecutions, the State Prosecutor of Croatia has the legal obligation to prosecute the case before a competent court, on the basis of an indictment based on the elements of the offences charged in the indictment confirmed by the International Tribunal.⁷ The Prosecutor received assurances that the present case would be processed by the State Attorney’s Office and the Zagreb County Court, as being best-positioned in terms of experience to process complicated organized crime and war crimes cases.
25. Rule 11 bis (B) provides that, to order a referral proprio motu or at the request of the Prosecutor, a Trial Chamber must be satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out.
26. The the death penalty is not prescribed by the criminal legislation of Croatia, which has adhered to the European Convention on Human Rights, including its Protocol 6 which prohibit the death penalty. Article 49 of the Croatian Criminal Code prescribes that the only forms of punishment for criminal offences are imprisonment and fine, while Article 53 thereof provides that imprisonment may not be longer than forty years for the gravest forms of serious criminal offenses perpetrated with intent.
27. In the event that the Trial Chamber is not fully satisfied by the above indicators that the accused would receive a fair trial before the Zagreb County Court and that the death penalty will not be imposed or carried out, it would be open to the Trial Chamber to request additional information directly from the Croatian authorities.
28. Indeed, although Rule 11 bis only explicitly provides for the Prosecutor, and where appropriate, the Accused, to be given the opportunity to be heard on a motion for referral, the Prosecutor considers that it would be appropriate for the Trial Chamber to call the Authorities of Croatia and hear them on the matter of referral. The practice followed by the International Tribunal when reviewing a motion for deferral under Rule 10 has been to hear the State concerned, although it is not explicitly mentioned by the Rule, and the Prosecutor considers it advisable that the Trial Chamber duly consider hearing Croatia before deciding on this request.

V. Cooperation between the Prosecutor and to the Croatian authorities concerning this case

29. If the Trial Chamber orders the referral of the case to Croatia, in application of Rule 11 bis (D), the Prosecutor will provide to the Croatian authorities the material supporting the indictment and all other information relating to the case which the Prosecutor considers appropriate.
30. The Prosecutor is prepared to make documentary evidence available to the State Authorities, including supporting materials. In addition, the Prosecutor will contact certain potentially vulnerable witnesses to determine their willingness to co-operate with the Croatian authorities and to give evidence before the national court. The results of these enquiries will be conveyed to the Croatian authorities in due course, but it is not expected at this stage that any difficulties which might arise in this area will operate as a bar to a domestic prosecution.
31. No protective measures for witnesses or victims have been ordered in this case, and the need for any such orders to remain in force therefore does not arise.

VI. Practical measures to be considered for the referral of the case

32. If the request for referral is granted in this case, since neither accused is in the custody of the Tribunal, no consequential orders relating to the detention or hand-over of the accused are required. The Prosecutor considers that the provisional release order for the accused RAHIM ADEMI should remain in place until such time as the Tribunal is informed that maintaining it, or any of its conditions, would be incompatible with steps being taken by the Croatian authorities or a court in Croatia.⁸

VI. Relief Sought

THE PROSECUTOR THEREFORE REQUESTS

_______________________
Carla Del Ponte
Prosecutor

Dated this 2 of September 2004
At The Hague
The Netherlands