Case No.: IT-94-2-AR72
IN THE APPEALS CHAMBER
Before:
Judge Theodor Meron, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Fausto Pocar
Registrar:
Mr. Hans Holthuis
Decision of:
9 January 2003
PROSECUTOR
v.
DRAGAN NIKOLIC
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DECISION ON NOTICE OF APPEAL
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Counsel for the Prosecutor
Mr Uppawansa Yapa
Counsel for the Accused
Mr Howard Morrison
Ms Tanja Radosavljevic
THE APPEALS 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 ("Appeals Chamber" and "Tribunal"),
SEISED of the "Notice of Appeal from the Judgement, pursuant to Rule 108 of the Rules of Evidence and Procedure, of Trial Chamber II dated the 9th day of October 2002 concerning the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal" filed by Dragan NIKOLIC (“Appellant”) on 7 November 2002 (“Notice of Appeal") against the "Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal" issued by Trial Chamber II on 9 October 2002 ("Impugned Decision");
NOTING the "Motion under Rule 127 and Contemplating Rules 72 and 108 Concerning the Notice of Appeal from the Judgement or Decision, pursuant to Rule 108 of the Rules of Procedure and Evidence, of Trial Chamber II dated the 9th day of October 2002 Concerning the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal as filed the 7th November 2002" filed by the Appellant on 8 November 2002 ("Rule 127 Motion") in which he requests that, if his appeal should have been made under Rule 72 instead of under Rule 108 of the Rules of Procedure and Evidence of the Tribunal ("Rules"), the time limits be varied to allow the Notice of Appeal to stand under Rule 72 of the Rules;
NOTING the "Prosecution Response to the Two Defence Documents filed on 8 November 2002 purporting to be a Notice of Appeal pursuant to Rule 108 and a Motion for Extension of Time under Rule 127 Respectively" filed on 18 November 2002 in which the Prosecution submits that Rule 108 of the Rules is manifestly inapplicable and that the "Defence Preliminary Motion amounts to a challenge to the propriety of this Tribunal’s exercise of personal jurisdiction over the accused and thus prima facie appears to fall within the ambit of Rule 72(D)(i)";
CONSIDERING the "Order of the President Assigning Judges to a Bench of the Appeals Chamber" issued on 29 November 2002, in which the President noted that an appeal pursuant to Rule 108 of the Rules must be reviewed by a bench of the Appeals Chamber composed of five Judges whereas an appeal pursuant to Rule 72 of the Rules is examined first by a bench of three judges and then ruled on in the last instance by a bench of five judges, and in which the President appointed a bench of five judges to consider the Notice of Appeal and the Rule 127 Motion;
CONSIDERING that Rule 108 of the Rules applies only to appeals from final judgement;
FINDING therefore that Rule 108 of the Rules cannot provide a basis for appeal of the Impugned Decision;
CONSIDERING that Rule 72(B)(i) of the Rules provides for interlocutory appeal from decisions on motions challenging jurisdiction;
CONSIDERING that under Rule 72(D) and (E) of the Rules, an appeal under Rule 72(B)(i) may only be proceeded with if the impugned decision was taken on a motion which challenged an indictment on the grounds that it did not relate to:
(i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute;
(ii) the territories indicated in Articles 1, 8 and 9 of the Statute;
(iii) the period indicated in Articles 1, 8 and 9 of the Statute;
(iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the
Statute;
CONSIDERING that the Impugned Decision was taken on a motion which challenged the exercise of the Tribunal’s jurisdiction over the Appellant because of the alleged illegality of his arrest, but did not challenge the indictment on any of the above listed grounds;
FINDING therefore that Rule 72 of the Rules cannot provide a basis for appeal of the Impugned Decision;
CONSIDERING that the Appellant should have filed his original motion before the Trial Chamber under Rule 73 of the Rules, and that he may seek from the Trial Chamber any extension of time necessary for him to apply for certification under Rule 73(B);
HEREBY DISMISSES the Notice of Appeal and the Rule 127 Motion.
Done in both French and English, the English text being authoritative.
_____________________
Theodor Meron
Presiding
Dated this ninth day of January 2003
At The Hague,
The Netherlands.
Judge Shahabuddeen appends a Dissenting Opinion to this decision.
[Seal of the Tribunal]