55. There has been some debate concerning the procedure laid down by Rule 77(F)[1] under which it is for a Chamber, proprio motu, to initiate the proceedings whereby a person is called upon to answer the allegations against him when the Chamber has reason to believe he may be in contempt.  This is in contrast with the procedure laid down by Rule 91[2], whereby a Chamber may direct the Prosecutor to investigate whether a witness has knowingly and wilfully given false testimony, with a view to the preparation and submission of an indictment for false testimony.  The suggestion has been made that it should be for the Prosecutor to initiate proceedings for contempt by way of indictment or, where the alleged contemnor is associated with the prosecution, for an amicus curiae appointed by a Chamber to do so.

56. It is not the intention of the Appeals Chamber to enter this debate, but its existence underlines the danger of a Chamber being both the prosecutor and the judge in relation to a charge of contempt, and the possibility in such a case that the ordinary procedures and protections for the parties are overlooked. […] It is therefore essential that, where a Chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is only in this way that the alleged contemnor can be afforded a fair trial.[3]

The Appeals Chamber dismissed Boškoski’s Appeal on Jurisdiction on procedural grounds, giving the following reasoning:

3. The Appeals Chamber does not consider that Boškoski’s Appeal is admissible as there is no basis upon which he could have properly filed his jurisdictional challenge before the Trial Chamber. The Appeals Chamber recalls that Rule 72(A)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) requires that challenges to jurisdiction must 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)”. Since disclosure for this case was completed in 2005, this Rule did not apply in this instance. Similarly, Rule 50(C) of the rules, which accords the accused “a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of new charges” did not apply since the amended indictment did not add new charges. Accordingly, Boškoski cannot be considered as now having the right to file an appeal under Rule 72(B)(i) of the Rules. Furthermore, the Appeals Chamber questions the Trial chamber’s decision to recognize this motion under Rule 54 of the Rules, which effectually allowed for the circumvention of the clear provisions of Rule 72 and the time limits therein. Seeing, however, that the Impugned Decision was considered on the basis of Rule 54, only Rule 73 of the rules would have been applicable, necessitating certification.[1]

In his Partially Dissenting Opinion, Judge Pocar was of the view that it was within the Trial Chamber’s discretion to allow Boškoski’s motion under Rule 54. He continues:

In my opinion, as a challenge to jurisdiction under rule 72(B) gives rise to an appeal as of right, when such a challenge arises under any other rule from a Trial Chamber, it should also be treated as allowing a right of appeal. Any other interpretation would create the possibility of an accused standing trial on charges that are not properly brought before this Tribunal. As was stated by the Appeals Chamber in Prosecutor v. Tadić, in its decision on jurisdiction, “[s]uch a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial”.[2] While that statement was made in relation to whether the International Tribunal had any jurisdiction at all, it is equally applicable to whether the Tribunal’s jurisdiction pursuant to Article 7(3) extends to all types of criminal activity of subordinates.[3]  […] I do not consider that the accused’s challenge to the issue as constituting a defect in the form of the indictment should preclude his challenge of the same issue as on of jurisdiction.[4]