TRIALS BEFORE NATIONAL COURTS UNDER OTP MONITORING
The Trial Chamber that will decide on the referral of the case of Rahim Ademi and Mirko Norac sought from the parties to specify how the trial would proceed in Croatia. OTP responds that it will be monitoring the proceedings in Croatia and will ask that the case be deferred back to the Tribunal in case of any unacceptable amendments
Mirko Norac in the courtroom
A “transition team” has been established recently within the Office of the Prosecutor. Its primary duty will be to make sure that the referral of cases from the Tribunal to national courts proceeds “efficiently and without unnecessary impediments.” Chief Prosecutor Carla Del Ponte provided this information to a special Trial Chamber considering her application for the referral of the case of Rahim Ademi and Mirko Norac to the Croatian courts. Last month, the Chamber put a number of questions to the prosecution and the defense, asking them to clarify how the trial in Croatia would proceed.
“The prosecution is currently exploring a monitoring programme (for the trials before national courts) which will be primarily administered by the OSCE,” states the submission that was made public today.
The Tribunal’s prosecutors will be monitoring the preparations of the Croatian judiciary for the Ademi/Norac trial and if they decide that the “Croatian” indictment and proceedings are not consistent with the Tribunal’s prosecution, i.e., if they fail to reflect accurately the charges made by the OTP, they will seek that the case be deferred back to the Tribunal. The indictment may be amended, but the amendments must be acceptable to the Office of the Prosecutor.
Del Ponte notes that there “have been difficulties” in the cooperation between the judiciaries in Croatia, BH and SM, but she nevertheless believes that the “agreements concluded recently should enhance cooperation among prosecutors and law enforcement in the three states.” Although there is no developed ICTY practice in this respect, the Tribunal might be asked to issue ancillary orders in assistance to the national prosecutions as a way of addressing interstate assistance issues, the brief adds.
OTP has taken the stand that - if the Ademi/Norac case is referred to Croatia - the Penal Code of the Republic of Croatia from 1993 should apply to the proceedings – as this is the period when the crimes in the Medak pocket were committed. This means that the maximum sentence for the two HV generals charged with those crimes could not exceed 20 years in prison.
Next week, a hearing will take place where oral arguments on those and other issues related to the possible referral of the Norac/Ademi case will be presented. The participants will be the prosecution, defense, representatives of Croatia and two law professors as amici curiae. The accused will not attend the hearing: Ademi has been provisionally released and Norac is in a Croatian prison, serving his sentence for the crimes in Gospic in 1991.
The Ademi/Norac case is the first one where referral was sought by Carla Del Ponte. It is part of the strategy whereby medium and low ranking indictees should be referred to national courts, enabling the Tribunal to complete its first-instance trials by the end of 2008. The prosecution has so far applied for deferral of eight cases, with a total of 18 indictees. The judges have not approved any deferrals yet. The number of questions they have put to the parties and the states involved indicates that they are carefully considering all factors for such a step.
- Case : Ademi & Norac - "Medak Pocket"
- 2004-07-08 MIRKO NORAC PLEADS NOT GUILTY
- 2004-07-01 GENERAL MIRKO NORAC WILL APPEAR IN THE HAGUE NEXT WEEK
- 2004-05-25 A NEW INDICTMENT AGAINST MIRKO NORAC ISSUED IN THE HAGUE
- 2005-02-17 PROBLEMS “NOT INSURMOUNTABLE”
- 2005-09-14 ADEMI AND NORAC TO BE TRIED IN CROATIA