IN THE TRIAL CHAMBER
Before: Judge Richard May
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 15 January 1999
DECISION ON DEFENCE MOTION TO CLARIFY
The Office of the Prosecutor:
Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. Turner Smith, Mr. David Geneson and
Mr. Ksenija Durkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez
Pending before this Trial Chamber 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 ("International Tribunal") is a Defence "Motion to Clarify", filed jointly by the Defence on 16 December 1998, concerning the scope and application of Rule 72 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), together with the "Prosecutors Response to Defence Motion to Clarify" filed by the Office of the Prosecutor ("Prosecution") on 17 December 1998.
At a closed session hearing on 8 January 1999 the Trial Chamber refused the Motion to Clarify in an oral decision, reserving its written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
Arguments of the parties
shall be in writing and be brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66 (A)(i) and shall be disposed of before the commencement of the opening statements provided for in Rule 84.
- the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
- the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.
(A) After a case is assigned to a Trial Chamber, either party may at
any time move before the Chamber by way of motion, not being a preliminary motion, for
appropriate ruling or relief. Such motions may be written or oral, at the discretion of
the Trial Chamber.
Reasons for Decision
As a preliminary point, the Trial Chamber notes that motions to clarify are not specifically provided for by the Rules of the International Tribunal and that they do not form part of the practice of the International Tribunal. The current Motion to Clarify does, however, raise a substantive question as to the time-limits applicable to preliminary motions in this case, the determination of which is now necessary.
The Trial Chamber notes that there is a clear differentiation between Rules 72 and 73 as regards preliminary motions raised pursuant to Rule 72, which are to be determined during the pre-trial stage of the proceedings, and other motions, raised pursuant to Rule 73, which may be raised by the parties at any time during the proceedings.
Objections as to jurisdiction, if successful, may have the effect of stopping the proceedings, which is why they are required to be raised by way of preliminary motion and disposed of prior to commencement of trial. On the plain language of Rule 72 (A), all matters relating to jurisdiction should be raised by way of preliminary motion within the time-limit prescribed in that Rule.
It is a generally accepted principle of law that a court is vested with the inherent power to raise at any time during the proceedings, proprio motu, the issue of its competence in order to ascertain whether it has jurisdiction over a case, and to define its scope. It is this principle, going to the power of the court, rather than those of the parties, that is reflected in the judgement of the European Court of Justice relied upon by the Defence in support of the Motion to Clarify.
The Trial Chamber notes that objections as to subject-matter jurisdiction may be closely connected with the merits of the case and involve mixed questions of law and facts. Consequently, and as has already been determined before the International Tribunal3, a Trial Chamber may decide to join certain types of preliminary motions or certain of their elements to the merits and to dispose of them at trial, at the time of judgement.
For the foregoing reasons
PURSUANT TO Rules 54 and 72 of the Rules of the International Tribunal,
THE TRIAL CHAMBER REFUSES the Defence Motion to Clarify and ORDERS as follows:
Done in both English and French, the English text being authoritative.
Dated this fifteenth day of January 1999
At The Hague
[The seal of the Tribunal]