Case No. IT-95-14-R77.4-AR72.1

IN THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Theodor Meron
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
2 March 2006

PROSECUTOR

v.

MARIJAN KRIZIC

__________________________________________

DECISION ON INTERLOCUTORY APPEAL CHALLENGING THE JURISDICTION OF THE TRIBUNAL

__________________________________________

The Office of the Prosecutor:

Mr. David Akerson
Mr. Salvatore Cannata

Counsel for the Appellant:

Mr. Emil Havkic

1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Appeals Chamber" and "Tribunal", respectively) is seized of an interlocutory appeal filed by Marijan Krizic ("Appellant") against the Trial Chamber’s "Decision to Deny the Accused Marijan Krizic’s Preliminary Motion to Challenge Jurisdiction" issued on 21 December 2005 ("Impugned Decision") pursuant to Rule 72(B)(i) of the Rules of Procedure and Evidence of the Tribunal ("Rules").¹ On 20 January 2006, the Prosecution notified the Appeals Chamber that it had determined not to respond to the Appeal.²

2. The Prosecution filed on 20 September 2005 an Indictment against the Appellant, charging him with contempt of the Tribunal under the Tribunal’s inherent power and Rules 77(A), 77(A)(ii) and 77(A)(iv) of the Rules. It alleged that the Appellant was responsible for the publication of closed session transcripts of a protected witness’ testimony in the Blaskic trial.³ The Appellant filed a preliminary motion before the Trial Chamber under Rule 72(A)(i) asking that it dismiss the Indictment against him on the ground that the Trial Chamber lacked jurisdiction over him.⁴ In the Impugned Decision, the Trial Chamber rejected the Appellant’s preliminary motion.

3. In this Appeal, which the Appellant purports to bring pursuant to Rule 72(B)(i) the Appellant maintains that the Trial Chamber does not have jurisdiction over him. He argues that the Tribunal’s inherent power to prosecute contempt pursuant to Article 77 is limited to persons who are "involved in the past or pendent cases before the Tribunal".⁵ In his view, Articles 15 and 22 of the Statute allow only "technical measures" for the protection of witnesses, but do not extend the jurisdiction of the Tribunal over persons not participating in the proceedings before the Tribunal.⁶

4. The Appeals Chamber recalls that Rule 72(D) of the Rules defines "a motion challenging jurisdiction" for purposes of Rule 72. In the Milosevic case, the Appeals Chamber held that "Rule 72(D) is clear and unambiguous in its terms and is inapplicable to proceedings for contempt."⁷ In other words, the Appeals Chamber held that a motion challenging the Tribunal’s jurisdiction in a contempt proceeding is not "a motion challenging jurisdiction" for purposes of Rule 72. Rule 72(A)(i), which provides that parties to Trial Chamber proceedings may bring preliminary motions "challeng[ ing] jurisdiction", therefore does not permit preliminary motions challenging jurisdiction in contempt proceedings. In Milosevic, the Appeals Chamber consequently affirmed a Trial Chamber’s refusal to consider a preliminary motion brought under Rule 72(A)(i) challenging its jurisdiction in a contempt proceeding.

5. The Milosevic decision’s interpretation of Rule 72(D) similarly informs the Appeals Chamber’s understanding of Rule 72(B)(i), the provision at issue in this case. Rule 72(B) provides that decisions on preliminary motions are not subject to interlocutory appeal save "(i) in the case of motions challenging jurisdiction." As motions challenging the Tribunal’s jurisdiction in contempt proceedings are not motions "challenging jurisdiction" for purposes of Rule 72, decisions denying motions challenging the Tribunal’s jurisdiction in contempt proceedings are not subject to interlocutory appeal pursuant to Rule 72(B)(i). Hence, the Appellant’s Appeal, which was brought pursuant to Rule 72(B)(i), and which asserts error in a decision denying a motion pursuant to Rule 72(A)(i) challenging the Tribunal’s jurisdiction in the contempt case brought against him, is not properly before the Appeals Chamber.

6. The Appeals Chamber notes that, though the Appellant cannot file a preliminary motion challenging the Tribunal’s jurisdiction over him pursuant to Rule 72(A)(i), he is free to challenge the Trial Chamber’s jurisdiction by other means, including by way of a motion pursuant to Rule 73(A), which is more general as compared to Rule 72⁸. The Appeals Chamber’s decision here, moreover, has no affect on the Appellant’s right to appeal the Trial Chamber’s judgment on the charges brought against him and, on appeal, he may raise any argument which has been rejected by the Trial Chamber.

On the basis of the foregoing, this Appeal is DISMISSED.

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

Dated this 2^nd day of March 2006,
At The Hague,
The Netherlands.

__________________
Fausto Pocar
Presiding Judge

[Seal of the International Tribunal]