Case No. IT-95-14-R77.2

IN THE TRIAL CHAMBER

Before:
Judge O-Gon Kwon, Presiding
Judge Patrick Robinson
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
7 October 2005

PROSECUTOR

V.

IVICA MARIJACIC
MARKICA REBIC

_____________________________________________

DECISION ON MOTIONS TO DISMISS THE INDICTMENT DUE TO LACK OF JURISDICTION AND ORDER SCHEDULING A STATUS CONFERENCE

_____________________________________________

The Office of the Prosecutor:

Mr. David Akerson

Counsel for Ivica Marijacic:

Mr. Marin Ivanovic

Counsel for Markica Rebic:

Mr. Kresmir Krsnik

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 ("Tribunal"), is seized of two motions from the accused Ivica Marijacic and Markica Rebic ("the Accused") challenging the jurisdiction of the Tribunal, and hereby renders its decision thereon.

I. Procedural History

The Indictment against Ivica Marijacic and Markica Rebic ("the Accused") was confirmed on 10 February 2005, charging them with one count of Contempt of the Tribunal. On 14 June 2005, a “Defendant Ivica Marijacic’s Motion to Dismiss the Indictment Pursuant to Rule 72 of the Rules of Procedure and Evidence" was filed and, on 23 June 2005, a "Preliminary Motion of the Accused Markica Rebic to Dismiss the Indictment" was also filed (together referred to as the "Motions to Dismiss").

The Trial Chamber issued a "Decision on Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment" on 6 September 2005 ("Decision on Motions to Dismiss"). In that Decision, the Trial Chamber denied those aspects of the Motions to Dismiss that raised a challenge to the jurisdiction of the Tribunal under Rule 72 of the Rules of Procedure and Evidence ("Rules"), on the basis of a ruling of the Appeals Chamber in Prosecutor v. Slobodan Milosevic.¹ It further ordered the Prosecution to provide copies of the specific order(s) that the Accused are alleged to have violated in contempt of the Tribunal, along with clarification of which parts of those order(s) the Accused have allegedly breached, by 9 September 2005.

On 9 September 2005, the Prosecution filed a confidential "Response to the Decision on Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment." On 15 September 2005, following receipt of a Request for Extension of Time from the accused Ivica Marijacic, the Trial Chamber issued an Order extending the deadline for submissions of further responses from the Accused to the Prosecution’s two Motions to Amend until 23 September 2005. On 21 September, a "Defendant Ivica Marijacic’s Response to the Trial Chamber’s Order of 6 September 2005 Opposing the Prosecution’s Motion to Amend, and Motion Pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction" was filed. This Response contained a new motion challenging the jurisdiction of the Tribunal, submitted pursuant to Rule 73(A) instead of Rule 72. Similarly, on 23 September, a confidential "Response of the Accused Markica Rebic to the Prosecutor’s Motions to Amend and Prosecution’s Response to the Decision on the Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment and Motion pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction" was filed (the aspects of the two Responses that contain new motions challenging the jurisdiction of the Tribunal are here referred to as the "Motions on Jurisdiction").

The Prosecution filed a "Reply to the Defendant Marijacic’s Response to the Trial Chamber’s Order of 6 September 2005" on 27 September 2005, addressing both the issues raised by the accused Marijacic in response to two motions filed by the Prosecution seeking leave to amend the Indictment² and the new motion challenging jurisdiction. On the same day, the Prosecution filed a similar "Reply to the Response of the Accused Markica Rebic to the Prosecutor’s Motions to Amend and Prosecution’s Response to the Decision on the Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment and Motion pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction" (together, these are here referred to as the "Prosecution Replies").

Treating those parts of the Prosecution Replies that addressed the new Motions on Jurisdiction as responses to those Motions, the accused Ivica Marijacic filed a confidential "Defendant Ivica Marijacic’s Reply in Support of his Motion Pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction" on 29 September 2005 ("Marijacic Reply"). No leave was sought from the Chamber for this Reply.³ On 3 October 2005, the Prosecution sought leave to file a "Reply to Defendant Ivica Marijacic’s Reply in Support of his Motion Pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction." Also treating those parts of the Prosecution Replies that addressed the new Motions on Jurisdiction as responses to those Motions, on 4 October the accused Markica Rebic filed his confidential “Reply of the Accused Markica Rebic to the Prosecutor’s Reply to Motion Pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction" (“Rebic Reply”). Rebic did not seek leave from the Chamber for the filing of this reply, although the text states that he "kindly asks the Honourable Chamber to take it into consideration in its decision" on the Motions on Jurisdiction.

II. Submissions of the Parties

A. The Defence

The basic argument of both Accused, which was made in their original Motions to Dismiss and repeated in their Motions on Jurisdiction, is that the Tribunal lacks personal jurisdiction over them, for they are not charged with having committed serious violations of international humanitarian law, nor are they charged pursuant to the Tribunal’s "incidental or ancillary jurisdiction" with having violated a specific order of a Chamber that is addressed to them. They also argue that the Tribunal lacks subject-matter jurisdiction in this case as the Chamber hearing the Blaskic case, in the course of which they are alleged to have acted in contempt of the Tribunal, issued no order addressed to the Accused that is identified in the Indictment.

In the Motions on Jurisdiction, the accused Marijacic specifically argues that:

1. He is not alleged by the Prosecution to have violated the Order of 6 June 1997 in the Blaskic case, as he was not a "representative" of the Blaskic defence team;
2. He never published the transcript of the testimony of the relevant witness, which was given in closed session, and therefore he did not violate the 16 December 1997 order to proceed in closed session. Moreover, the 16 December oral order was clearly directed at the Blaskic defence team. Because the Tribunal never addressed this order to him or served it upon him, it did not apply to him and he could not know that it applied to him. The Tribunal cannot assert jurisdiction over non-parties to the proceedings before it unless it has specifically addressed an order to them;
3. The Prosecution has not shown that he was served with or knew the substance of the Cease and Desist order of 1 December 2000, nor that he believed himself to be bound by it personally. Because he was not the subject of the 1 December 2000 order and was not personally served with it, he could not have violated Rule 77(A)(ii);
4. The Cease and Desist order was issued precisely because the earlier orders concerning protective measures in the Blaskic case were binding only upon the Blaskic defence team.
5. Because the Prosecution has failed to show that the Blaskic Trial Chamber addressed an order to him that he subsequently violated, the Tribunal has no personal jurisdiction over him;
6. It is appropriate for the Trial Chamber to rule on the jurisdictional challenge prior to trial, as the facts are not in dispute and the issue is a question of law.

   In the Marijacic Reply, the accused Marijacic further argues that:

7. The Prosecution has failed to establish that the witness whose identity and statement were disclosed was a "protected" witness, and therefore disclosure of his name cannot constitute contempt; and
8. Rule 73(A) is much broader than Rule 72(D) and allows for a defendant to challenge the jurisdiction of the Tribunal.

In the Motions on Jurisdiction, the accused Rebic additionally asserts that:

1. He disputes his characterisation by the Prosecution as a "representative" of the Blaskic defence team and therefore states that the 6 June 1997 order of the Blaskic Trial Chamber was not applicable to him;
2. The oral order of 16 December 1997 to proceed in closed session was addressed exclusively to the participants in the Blaskic proceedings;
3. He was never served with the 1 December 2000 Order and had absolutely no knowledge of it.

   In the Rebic Reply, he further argues that his Motion on Jurisdiction was filed pursuant to Rule 73(A) and therefore cannot be considered as a preliminary motion.

   2. The Prosecution

In response to the new motions challenging jurisdiction, the Prosecution Replies argue that:

III. The Rules

Rule 72 of the Rules, on Preliminary Motions, provides that:

IV. Discussion

The re-filing by the Accused of essentially the same challenge to jurisdiction as was introduced in their Motions to Dismiss and denied by the Trial Chamber raises a procedural question about whether motions challenging jurisdiction may be made under Rule 73. In cases forming the normal business of the Tribunal, being cases involving the alleged commission of serious violations of international humanitarian law, challenges to jurisdiction are made and determined prior to trial and are regulated by the provisions of Rule 72. However, as stated by the Appeals Chamber, Rule 72, and in particular Rule 72(D), which relates to preliminary motions challenging jurisdiction, is inapplicable in contempt proceedings. This might appear, therefore, to result in a situation where a person accused of contempt could not challenge the jurisdiction of the Tribunal to prosecute him. However, there may be challenges to jurisdiction that do not fall within the terms of Rule 72(D). For example, in the case of Prosecutor v. Dragan Nikolic, the accused sought to challenge the jurisdiction of the Tribunal on the basis of his alleged illegal arrest and transfer. In that case the Appeals Chamber held that the accused should have filed his motion challenging the Tribunal’s jurisdiction under Rule 73 of the Rules.⁴ It is, therefore, possible for an accused to challenge the jurisdiction of the Tribunal in certain circumstances outside of the terms of Rule 72, utilising the more general right to file motions at any time contained in Rule 73.

Accordingly, the Trial Chamber will consider the merits of the Motions on Jurisdiction, to determine whether they do indeed raise genuine jurisdictional challenges.

The Accused have framed their challenges to the jurisdiction of the Tribunal as challenges based on lack of personal, and lack of subject-matter, jurisdiction. The fundamental basis for what the Defence characterise as challenges to two forms of jurisdiction (personal and subject-matter) is one and the same – that there was no order directed to the Accused and binding upon them that they knowingly violated in contempt of the Tribunal. The issue to be determined is whether the alleged lack of such an order is indeed a correct basis for a challenge to the personal and/or subject-matter jurisdiction of the Tribunal.

With regard to subject-matter jurisdiction, the answer is most clearly in the negative. The essence of subject-matter jurisdiction is whether the crime charged is a type of crime which the Tribunal is authorised to prosecute and punish. In the case of serious violations of international humanitarian law, the crime charged must properly fall within the relevant provisions of the Statute. In cases of contempt, the subject-matter jurisdiction of the Tribunal – its power to prosecute and punish this type of crime – is well-established. It should be emphasised that the crime in question is "contempt" and the alleged actions of the accused – their disclosure of certain information – is a form of commission of contempt, rather than the crime itself. Rule 77(A) indicates that the crime of contempt is the knowing and wilful interference with the administration of justice, and the list of the forms of commission of contempt in Rule 77(A)(i) to (v) is non-exhaustive. The correct analysis therefore, for purposes of examining subject-matter jurisdiction, is whether the Tribunal has the power to prosecute the crime of contempt in this case, not whether the mental and physical elements of the underlying forms of commission are established, which is a matter for trial.

With regard to personal jurisdiction, again the arguments put forward by the defence confuse jurisdiction over the alleged contemnors with establishment of the elements of the underlying form of commission of the crime. A matter of personal jurisdiction is a matter of whether the Tribunal has the power to prosecute this person or this category of persons for the crime of contempt. The power of the Tribunal to prosecute individuals for interfering with the administration of justice is not limited to individuals who are parties to proceedings before the Tribunal, nor to any other category of individuals. Rather, the Tribunal has the power to prosecute and punish any person who knowingly and wilfully interferes with its administration of justice.⁵

If, as in the present case, an accused person is charged with contempt on the basis of the underlying form of commission of disclosing information in knowing violation of an order, the question of whether there was a relevant order and whether the accused was aware of that order is part of the actus reus and the mens rea elements of the underlying form of commission. Thus, these issues are for exploration and determination at trial, and are not appropriately raised as challenges to personal jurisdiction.

This analysis is supported by the definition of jurisdiction contained in the Sixth edition of Black’s Law Dictionary and cited by the Appeals Chamber in its first decision on jurisdiction in the Tadic case - "[Jurisdiction] is the power of a court to decide a matter in question and presupposes the existence of a duly constituted court with control over the subject matter and the parties."⁶ From this, as stated above, the relevant jurisdictional question is whether the court in question has control over this subject-matter (the crime of contempt) and whether it has control over these accused (can these particular individuals be prosecuted for contempt, or does the court have its power limited to specified individuals or categories of person based, for example, on their nationality). On this reading, there can be no question that the Tribunal has subject-matter and personal jurisdiction in the present case.

IV. Disposition

Pursuant to Rule 126 bis of the Rules, the Trial Chamber hereby GRANTS LEAVE to the Prosecution to file its "Reply to Defendant Ivica Marijacic’s Reply in Support of his Motion Pursuant to Rule 73(A) to Dismiss the Indictment due to Lack of Personal Jurisdiction and Lack of Subject Matter Jurisdiction."

Pursuant to Rules 73 and 54 of the Rules, the Trial Chamber hereby DENIES the Motions on Jurisdiction.

23. Pursuant to Rule 54 of the Rules, the Trial Chamber hereby SCHEDULES a Status Conference in the present case, to be held on 26 October 2005, at 3:00 p.m.

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

_______________
Judge O-Gon Kwon
Presiding

Dated this seventh day of October 2005
At The Hague
The Netherlands

[Seal of the Tribunal]