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 "Prosecutor’s 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,

1. Arguments of the parties

1. The Defence seeks clarification from the Trial Chamber of the operation of Rule 72 of the Rules by "confirming that the Defense is not required to address issues related to subject matter jurisdiction solely in the form of a Preliminary Motion filed pursuant to Rule 72 (A)(i)" but that jurisdictional issues may be raised at any time during the pendency or appeal of these proceedings and that failure to raise such matters prior to trial does not constitute a waiver thereof.
   
2. The Defence argues: (a) that in both civil and common-law systems, jurisdictional issues, especially those related to subject-matter jurisdiction, can be raised by a party at any time during criminal proceedings without risk of waiver, even for the first time on appeal, and that a court may also act proprio motu in the absence of a motion by a party; (b) that, if any jurisdictional issues must be raised as a preliminary matter, these do not include questions of subject-matter jurisdiction; concluding (c) that jurisdictional issues may, but need not be, raised as preliminary motions pursuant to Rule 72 and that there is no waiver for failure to do so.
   
3. The Defence refers in support of its argument to the Rules of Procedure of the European Court of Justice, and to a judgement of that court, and to civil and common law decisions¹. The Defence argues that Rule 72 is ambiguous in this respect and does not reflect the general practice of criminal proceedings and of international courts.
   
4. The Defence notes that prior versions of the Rules² made specific provision for failure to raise such matters within the time-limit allowed to constitute a waiver of the right, subject to relief for "good cause", and asserts that the deletion of that specific provision indicates that failure to raise such matters before trial does not constitute a waiver of the right. The Defence also asserts that it would save time and shorten the proceedings in this particular case if the Defence were to be allowed to raise such issues at any time during the proceedings and not just at the pre-trial stage.
   
5. The Prosecution notes that, having discussed the Motion to Clarify with the Defence, the intent of the motion is to avoid an inadvertent waiver of issues which might be considered to be "jurisdictional" and therefore barred because they were not raised within the time-frame provided in Rule 72 (A)(i). It is the Prosecution position that, pursuant to this Rule, all known and reasonably apparent jurisdictional motions should be raised at this stage of the proceedings, pointing to matters of judicial economy. The Prosecution does not concede that the jurisprudence of the International Tribunal is any different to that stated on the face of Rule 72 (A) but otherwise does not oppose the Motion to Clarify.
   
6. The Prosecution does not consent to any defence delay in filing for tactical advantage and reserves its right to object to any subsequent motion which might otherwise be characterized as "jurisdictional" on the ground that such motion was or reasonably should have been known and filed at this time.
   

2. Applicable law

7. Rule 72 provides as follows:

Rule 72
Preliminary Motions

1. Preliminary motions, being motions which
   
1. challenge jurisdiction
2. allege defects in the form of the indictment
3. seek the severance of counts joined in one indictment under Rule 49 or seek separate trials under Rule 82 (B), or
4. raise objections based on the refusal of a request for assignment of counsel made under Rule 45 (C)

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.

2. Decisions on preliminary motions are without interlocutory appeal save
   
1. in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
2. in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber.

 

3. Applications for leave to appeal under Sub-rule (B)(ii) shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, the application shall be filed within seven days of the oral decision, unless

1. 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
2. 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.

8. The other Rule relating to motions, Rule 73, provides in relevant part:

 

Rule 73
Other Motions

(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.


3. Reasons for Decision

9. 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.

10. 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.

11. 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.

12. 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.

13. 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:

1. all matters relating to issues of jurisdiction should be raised by way of preliminary motion within the time-limit prescribed by Rule 72 (A); and
   
2. if issues are raised involving mixed questions of fact and law, the Trial Chamber will decide whether to rule on them during the trial.

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

_______________________________

Richard May

Presiding

Dated this fifteenth day of January 1999

At The Hague

The Netherlands

[The seal of the Tribunal]

1. Defence Motion to Clarify, Prosecutor v. Dario Kordic et al., IT-95-14/2, 16 Dec. 1998, pp. 2-3.

2. IT/32/Rev. 1- 11 inclusive, effective until 12 November 1997.

3. See, e.g., Decision on the Defence Motion to Dismiss the Indictment based upon Defects in the Form thereof (Vagueness/Lack of Adequate Notice of Charges, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, 4 Apr. 1997.