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Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals

Published online by Cambridge University Press:  27 February 2017

Stuart Beresford
Stuart Beresford*
Affiliation:
Ministry of Justice of New Zealand; International Criminal Tribunal for the Former Yugoslavia
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American Journal of International Law , Volume 96 , Issue 3 , July 2002 , pp. 628 - 646
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Copyright © American Society of International Law 2002

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References

1 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 [hereinafter ICTY].

2 International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994 [hereinafter ICTR].

3 On the ICTY’s recognition of the human rights of suspects and accused, see generally Bassiouni, M. Cherif & Manikas, Peter, The Law of The International Criminal Tribunal for the Former Yugoslavia 955–72 (1996)Google Scholar; 1 Morris, Virginia & Michael, P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia 224–28 (1995)Google Scholar; Beresford, Stuart, The International Criminal Tribunal for the Former Yugoslavia and the Right to Legal Aid and Assistance, Int’l J. Hum. Rts., Winter 1998, at 49 Google Scholar; Cassese, Antonio, The International Criminal Tribunal for the Former Yugoslavia and Human Rights, Eur. Hum. Rts. L. Rev., NO. 4, 1997, at 329 Google Scholar; Scott, T. Johnson, On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 Int’l Legal Persp. 111 (1998)Google Scholar; Lahiouel, Hafida, The Right of the Accused to an Expeditious Trial, in Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk Mcdonald 197 (Richard, May et al. eds., 2001)Google Scholar [hereinafter Essays on ICTY Procedure and Evidence]; Patrick, L. Robinson, Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia, 11 Eur.J. Int’l. L. 569 (2000)Google Scholar; Wald, Patricia & Martinez, Jenny, Provisional Release at the ICTY: A Work in Progress, in Essays on ICTY Procedure and Evidence, supra, at 231 Google Scholar; Michaїl, Wladimiroff, Rights of Suspects and Accused, in 1 Substantive and Procedural Aspects of International Criminal Law 419 (Gabrielle, Kirk McDonald & Olivia, Swaak-Goldman eds., 2000)Google Scholar. On the ICTR’s recognition of the human rights of suspects and accused, see generally John, R. W. Jones, D., The Practice of The International Criminal Tribunals For The Former Yugoslavia and Rwanda 518–22 (2d ed. 2000)Google Scholar; 1 Morris, Virginia & Michael, P. Scharf, The International Criminal Tribunal Forrwanda 512–18 (1998)Google Scholar; DeFrancia, Cristian, Due Process in International Criminal Courts: Why Procedure Matters, 87 Va. L. Rev. 1381 (2001)CrossRefGoogle Scholar.

4 On February 20, 2001, the appeals chamber confirmed the decision of the trial chamber acquitting Zejnil Delalić—who had been held in custody between March 26,1996, and November 16,1998—of the eleven counts of grave breaches of the Geneva Conventions on the Protection of Victims of War and violation of the laws and customs of war that he was charged with because of his alleged command over the Čelebići prison camp, located in central Bosnia-Herzegovina, in 1992. Prosecutor v. Delalić, Appeals Judgment, Case No. IT-96-21-A (Feb. 20, 2001), 40 ILM 630 (2001). ICTY decisions are available online at the Tribunal’s Web site, <http://www.un.org/icty>.

5 Letter Dated 19 September 2000 from the President of the International Criminal Tribunal for the Former Yugoslavia Addressed to the Secretary-General, annexed to Letter Dated 26 September 2000 from the Secretary- General Addressed to the President of the Security Council, UN Doc. S/2000/904, available at <http://www.un.org/Docs/sc/letters/2000> [hereinafter ICTY President’s Letter].

6 Letter Dated 26 September 2000 from the President of the International Criminal Tribunal for Rwanda Addressed to the Secretary-General, annexed to Letter Dated 28 September 2000 from the Secretary-General Addressed to the President of the Security Council, UN Doc. S/2000/925, available at <http://www.un.org/Docs/sc/letters/2000> [hereinafter ICTR President’s Letter].

7 Huff, C. Ronald, Rattner, Arye, & Sagarin, Edward, Convicted But Innocent: Wrongful Conviction and Public Policy 146 (1996)Google Scholar.

8 See New Zealand Law Commission, Compensating the Wrongly Convicted, para. 1 (Parliamentary Paper E 31 AJ, 1998), available at <http://www.lawcom.govt.nz> [hereinafter NZ LAW COMM’N].

9 See id., para. 2.

10 For instance, in its decision to release Milan Simić provisionally, ICTY Trial Chamber II stated that during the period of release the accused shall, inter alia, remain within the confines of the municipality of Bosanski Šamac; surrender his passport to the International Police Task Force (IPTF) or the Office of the Prosecutor; meet once a day with the local police; consent to checks by the IPTF with the local police about his presence and occasional, unannounced visits by the IPTF; avoid all contact with any other co-accused in the case; avoid all contact whatsoever and all interference with any persons who might testify at his trial; and refrain from discussing his case with anyone other than his counsel. Prosecutor v. Simić, Application for Provisional Release, Case No. IT-95-9-PT (May 29, 2000).

11 See John, J. Johnston, Reasonover v. Washington: Toward a Just Treatment of the Wrongly Convicted in Missouri, 68 UMKC L. Rev. 411, 411–12 (2000)Google Scholar; see also Keith, S. Rosenn, Compensating the Innocent Accused, 37 Ohio St. L.J. 705,711 (1976)Google Scholar (noting that” [t] he cost of properly defending a criminal prosecution can be staggering, impoverishing all but the very rich or the already indigent”).

12 It should be noted, however, that in the case of the ICTY, all but four accused have pleaded indigence and their counsel’s legal fees have been paid for by the court “at rates reputed to be often much more generous than those prevailing in their home countries.” Patricia, M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court, 5 Wash. U.J. L. & Pol.’y 87, 103 (2001)Google Scholar.

13 See NZ Law Comm’n, supra note 8, para. 3; Johnston, supra note 11, at 412.

14 See Ashman, Peter, Compensation for Wrongful Imprisonment, New L.J., May 23, 1986, at 497, 497 Google Scholar.

15 NZ Law Comm’n, supra note 8, para. 8.

16 Statute of the International Criminal Tribunal for the Former Yugoslavia, in Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) [hereinafter SC Report], UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993), available at ICTY Web site, supra note 4 [hereinafter ICTY Statute].

17 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec., at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994), available at <http://www.ictr.org> [hereinafter ICTR Statute].

18 International Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, as amended, UN Doc. IT/32/Rev.22 (Dec.13, 2001), available at ICTY Web site, supra note 4 [hereinafter ICTY Rules]; International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, as amended, UN Doc. ITR/3/Rev.11 (May 31, 2001), available at <http://www.ictr.org> [hereinafter ICTR Rules].

19 NZ Law Comm’n, supra note 8, para. 9.

20 ICTY Rules, supra note 18, Rules 40, 40 bis; ICTR Rules, supra note 18, Rules 40, 40 bis.

21 ICTY Rules, supra note 18, Rule 40 bis B(iii); ICTR Rules, supra note 18, Rule 40 bis B(iii).

22 ICTY Statute, supra note 16, Art. 19; ICTR Statute, supra note 17, Art.18.

23 Arrest warrants shall be issued to the national authorities of a state in whose territory or under whose jurisdiction the accused resides, see ICTY Rules, supra note 18, Rule 55; ICTR Rules, supra note 18, Rule 55.

24 ICTY Rules, supra note 18, Rule 65; ICTR Rules, supra note 18, Rule 65. For a discussion of the hurdles that accused persons need to overcome in order to be granted provisional release, see Wald & Martinez, supra note 3.

25 ICTY Statute, supra note 16, Art. 24; ICTR Statute, supra note 17, Art. 23.

26 ICTY Statute, supra note 16, Art. 21(3); ICTR Statute, supra note 17, Art. 20(3).

27 Although the Statutes of the ad hoc Tribunals do not specify the requisite burden of proof that must be satisfied to obtain a conviction, their Rules state that” [a] finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.” ICTY Rules, supra note 18, Rule 87(A); ICTR Rules, supra note 18, Rule 87(A).

28 The Rules of the ad hoc Tribunals provide that “[n]o evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.” ICTY Rules, supra note 18, Rule 95; ICTR Rules, supra note 18, Rule 95.

29 ICTY Statute, supra note 16, Art. 21(2); ICTR Statute, supra note 17, Art. 20(2).

30 ICTY Statute, supra note 16, Art. 21 (4); ICTR Statute, supra note 17, Art. 20(4).

31 ICTY Statute, supra note 16, Art. 25; ICTR Statute, supra note 17, Art. 24.

32 ICTY Statute, supra note 16, Art. 25; ICTR Statute, supra note 17, Art. 24.

33 Shelbourn, Carolyn, Compensation for Detention, 1978 Crim. L. Rev. 22, 22 Google Scholar.

34 Id.

35 To succeed in an action for malicious prosecution, a plaintiff would have to prove that the defendant prosecuted him; that the prosecution ended in the plaintiffs favor; that the defendant lacked reasonable and probable cause for bringing the prosecution; that the defendant acted maliciously; and that the plaintiff suffered damage as a result of the prosecution. Such claims are seldom brought and very rarely succeed, primarily on account of the mental elements that must be proved to establish that the police or other prosecuting authorities acted maliciously.

This description also applies when a plaintiff seeks to bring an action for misfeasance in public office. This tort refers to malicious acts or omissions by a public officer in the exercise or purported exercise of his office, which are in breach of a duty owed to the plaintiff and cause loss to the plaintiff. Malice in this context includes spite, ill will, or any other improper motive, as well as knowledge that a particular action was invalid and likely to harm the plaintiff or individuals in the plaintiffs position.

The tort of false imprisonment provides a remedy where the plaintiff has been detained or imprisoned by the authorities without lawful justification. For instance, a claim may be brought against the police for false imprisonment if they detain a person for questioning without making an arrest. However, the police are only liable for false imprisonment during the period before that person is brought before a court; thereafter, any liability will rest in malicious prosecution or misfeasance in public office. The tort of false imprisonment will not assist a person seeking compensation for being remanded in custody, convicted, and subsequently imprisoned. The Law of Torts in New Zealand 980–84 (Stephen, Todd et al. eds., 2d ed. 1997)Google Scholar.

36 Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, Art. V, §20, 21 UST 1418, 1 UNTS15; Agreement Concerning the Headquarters 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, May 27, 1994, Neth.-UN, Art. XV(5), UN Doc. S/1994/848; Agreement Concerning the Headquarters of the International Criminal Tribunal for Rwanda, Aug. 31,1995, Tanz.-UN, Art. XV(5), UN Doc. A/51/399-S/1996/778, app., available at <http://www.ictr.org>.

37 In addition to eyewitness misidentification—which is estimated to be the cause of over half of all wrongful convictions uncovered—commentators have identified the following factors leading to such injustices: perjury by witnesses, negligence by criminal justice officials, pure error, coerced confessions, frame-up, identification by police due to prior criminal record, and forensic errors. Huff, Rattner, Be Sagarin, supra note 7, at 53-82.

38 In this connection, one should recall that the United Nations has the authority to settle claims of a private law character, for instance, when property is appropriated during its operations. Shraga, Daphna, UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage, 94 AJIL 406, 411 (2000)Google Scholar. Shraga notes that pursuant to a policy decision mandated by the UN General Assembly,

compensation for personal injury, illness, or death [attributable to the activities of members of a peacekeeping force in the performance of their official duties] was limited to economic loss (i.e., medical expenses, loss of earnings, and financial support) measured by local standards of compensation not to exceed a ceiling of U.S.$50,000. Noneconomic loss such as pain and suffering was excluded. Compensation for property loss or damage was limited by reference to relevant criteria: for nonconsensual use or damage to premises, an adequate compensable amount was determined on the basis of fair rental value or repair costs; and for personal property, it was set at reasonable costs of repair or replacement of the personal property damaged.

39 ICTY Statute, supra note 16, Art. 18; ICTR Statute, supra note 17, Art. 17.

40 ICTY Rules, supra note 18, Rule 98; ICTR Rules, supra note 18, Rule 98.

41 As one British report noted: “When [the adversarial] system works well, it is probably unrivalled at getting at the truth. When it works badly, the risk of wrongful conviction is probably greater than under the alternative inquisitorial system which operates in most of Continental Europe.” Waller, George, Miscarriages of Justice 23 (1989)Google Scholar.

42 Johnston, supra note 11, at 414.

43 Borchard, Edwin, State Indemnity for Errors of Criminal Justice, 21 B.U. L. Rev. 201, 208 (1941)Google Scholar.

44 See Johnston, supra note 11, at 411-12.

45 Kaiser, H. Archibald , Wrongful Conviction and Imprisonment: Towards an End to the Compensatory Obstacle Course, 1989 Windsor Y.B. Access to Justice 96,101 Google Scholar.

46 One commentator has observed that “[e]ven if there has been an acquittal or a dismissal of all charges, the cloud of suspicion frequently remains, causing enormous hardship to the persons involved.” Rosenn, supra note 11, at 724.

47 Christine, E. Sheehy, Compensation/or Wrongful Conviction in New Zealand, Auckland U. L. Rev. 977,984 (1999)Google Scholar.

48 Rosenn, supra note 11, at 716; see also Johnston, supra note 11, at 412.

49 NZ Law Comm’n, supra note 8, para. 32.

50 Conversely, the absence of a mechanism by which wrongly detained, prosecuted, or convicted persons may claim compensation indicates the low priority the ad hoc Tribunals give to the plight of such persons. See Sheehy, supra note 47, at 986.

51 Moreover, accused who might plead guilty with a view to receiving a reduced sentence or charge will instead be encouraged to insist on their innocence. Id.

52 NZ Law Comm’n, supra note 8, para. 33.

53 Id.

54 Id., para. 34.

55 ICTY Statute, supra note 16, Art. 26; ICTR Statute, supra note 17, Art. 25.

56 See Sheehy, supra note 47, at 988-89.

57 Kaiser, supra note 45, at 109.

58 Sheehy, supra note 47, at 989.

59 ICTY Rules, supra note 18, Rule 105; ICTR Rules, supra note 18, Rule 105.

60 For a detailed discussion of the growing trend to award compensation to victims of armed conflicts and the lack of such a mechanism within the ad hoc Tribunals, see Susanne Malmstrōm, Restitution of Property and Compensation to Victims, in Essays on ICTY Procedure and Evidence, supra note 3, at 373.

61 See Sheehy, supra note 47, at 989.

62 Shelbourn, supra note 33, at 25 (describing how certain countries—for instance, Belgium, Germany, and the Netherlands—compensate individuals who were detained in custody pending a trial at which they were acquitted, or against whom charges were withdrawn at or before trial, while others—such as the United States—provide compensation only to “those who have suffered detention following a conviction and have subsequently been pardoned”).

63 See Hans, Gammeltoft-Hansen, Compensation for Unjustified Imprisonment in Danish Law, 18 Scandinavian Stud. L. 29, 32 (1974)Google Scholar (noting that “[i]n Denmark and Norway, compensation is excluded if there are still grounds for presuming the accused to be guilty of the crime charged”).

64 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 9(5), 999 UNTS 171 [hereinafter ICCPR].

65 European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221. Article 5(5) of the Convention provides: “Everyone who has been the victim of arrest or detention in contravention of the provisions of [Article 5 of this Convention] shall have an enforceable right to compensation.”

66 American Convention on Human Rights, Nov. 22, 1969, Art. 63, 1144 UNTS 123; see Cook, Helena, Preventive Detention—International Standards and the Protection of the Individual, in Preventive Detention: Acomparative and International Law Perspective 1, 31 (Frankowski, Stanislaw & Shelton, Dinah eds., 1992).Google Scholar

67 Communication No. 560/1993, A v. Australia, UN Doc. CCPR/C/59/D/560/1993 (1997). Decisions of the Human Rights Committee are available online at <http://www.unhchr.ch/tbs/doc.nsf>.

68 Joseph, Sarah, Schultz, Jenny, & Castan, Melissa, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary 241 (2000)Google Scholar.

69 Communication No. 408/1990, W.J. H. v. The Netherlands, UN Doc. CCPR/C/45/D/408/1990 (1992).

70 Id., paras. 2.1, 2.2.

71 Id., para. 6.3.

72 Joseph, Schultz, & Castan, supra note 68, at 337.

73 Id.

74 Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary 270 (1993)Google Scholar.

75 Id.

76 Communication No. 89/1981, Muhonen v. Finland, UN Doc. CCPR/C/24/D/89/1981 (1985).

77 Nowak, supra note 74, at 270; see also Muhonen, para. 11.2.

78 Nowak, supra note 74, at 271.

79 Id.

80 Id. at 269.

81 Id.

82 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Extending the List of Civil and Political Rights, Nov. 22, 1984, 24 ILM 435 (1985).

83 Harris, D.J. Boyle, M. O’, & Warbrick, C. , Law of The European Conventionon Human Rights 568 (1995)Google Scholar.

84 Council of Europe, Explanatory Report of Protocol No. 7 TO The Convention for The Protection of Human Rights and Fundamental Freedoms, para. 22 (1983), available at <http://www.conventions.coe.int/Treaty/en/cadreprincipal.htm> [hereinafter Explanatory Report] (quoting Council of Europe, Explanatory Report of The European Convention On The International Validity of Criminal Judgments 22 (1970)).

85 Explanatory Report, supra note 84, para. 23.

86 American Convention on Human Rights, supra note 66, Art. 10.

87 The Inter-American System of Human Rights 255 (David, J. Harris & Livingstone, Stephen eds., 1998)Google Scholar; see also Stavros, Stephanos, The Guarantees of Accused Persons Under Article 6 of The European Convention on Human Rights 300 (1993)Google Scholar

88 Rome Statute of the International Criminal Court, July 17,1998, Art. 85, UN Doc. A/CONF.183/9*, 37 ILM 999 (1998), corrected through July 1999 by UN Doc. PCNICC/1999/INF/3*, at <http://www.un.org/law/ico> [hereinafter Rome Statute].

89 For commentary, see Gilbert Bitti, Compensation to an Arrested or Convicted Person, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 623 (Roy, S. Lee ed., 2001)Google Scholar; Staker, Christopher, Article 85: Compensation to an Arrested or Convicted Person, in Commentary on The Rome Statute of The International Criminal Court: Observers’ notes, Article By Article 1041 (Triffterer, Otto ed., 1999)Google Scholar

90 Rome Statute, supra note 88, Art. 85(1).

91 Id., Art. 85(3).

92 ICTY President’s Letter, supra note 5.

93 J C TR President’s Letter, supra note 6.

94 J C JY President’s Letter, supra note 5.

95 Id.

96 ICTY Statute, supra note 16, Art. 15; ICTR Statute, supra note 17, Art. 14.

97 Bremer Vulkan Schiffbau und Maschinenfabrik v. S. India Shipping Corp., [1981] 1 All E.R. 289, 295 (H.L.).

98 See Arnull, Anthony, Does the Court of Justice Have Inherent Jurisdiction ? 27 Common Mkt. L. Rev. 683,701 (1990)Google Scholar.

99 S-G Report, supra note 16, para. 114.

100 NZ Law Comm’n, supra note 8, para. 103.

101 See Rosenn, supra note 11, at 719-21.

102 Shelbourn, supra note 33, at 26.

103 Gammeltoft-Hansen, supra note 63, at 56 (footnote omitted).

104 NZ Law Comm’n, supra note 8, para. 105.

105 Id., para. 107.

106 Kaiser, supra note 45, at 134.

107 Id. at 136-37.

108 In such cases, compensation should be excluded or, at a minimum, reduced. See Shelbourn, supra note 33, at 26.

109 Kaiser, supra note 45, at 136.

110 Letter Dated 12 March 2002 from the President of the International Tribunal for the Former Yugoslavia Addressed to the Secretary-General, annexed to Letter Dated 18 March 2002 from the Secretary-General Addressed to the President of the Security Council, UN Doc. S/2002/304, available at <http://www.un.org/Docs/sc/letters/2002>.

111 Prosecutor v. Kupreškić, Request by Zoran Kupreškić;, Case No. IT-96-16-T (Dec. 21, 2001); Prosecutor v. Kupreškić , Request for Compensation for Mirjan Kupreškić , Case No. IT-96-16-T (Feb. 7, 2002).

112 Prosecutor v. Kupreškić , Appeals Judgment, Case No. IT-96-16-A (Oct. 23, 2001), 41 ILM 313 (2002).

113 See note 111 supra.

114 Another accused, Zejnil Delalić, has indicated to the ICTY that he will also file a claim for compensation against the organization, see Prosecutor v. Delalić, Request for Personal Funds Used for Defence Expenses, Case No. IT-96-21-T (May 18, 2001). Moreover, the other individual who was acquitted together with Mirjan and Zoran Kupreškić may also seek compensation from the organization.

115 In this regard, the ad hoc Tribunals have already adopted procedures to reimburse, albeit to a limited degree, one group of participants in the trial process, namely witnesses, for the losses they incur. 1CTY, Directive on Allowances for Witnesses and Expert Witnesses, UN Doc. IT/200 (Dec. 5, 2001).

116 Finalized Draft Text of the Rules of Procedure and Evidence, UN Doc. PCNICC/2000/1 /Add. 1 (2000), available at <http://www.un.org/law/ico> [hereinafter ICC Rules].

117 Id., Rule 173(1).

118 Id., Rule 173(2). “The right to seek compensation is limited to the person who was actually arrested or convicted” and—even though spouses, children, parents, or any person alive at the time of the accused’s death who has been given express written instructions from the accused is entitled to seek revision of a final judgment of conviction or sentence after his death—”this right cannot be exercised by others or passed on to others.” Bitti, supra note 89, at 626.

119 ICC Rules, supra note 116, Rule 174 (1). The right of the prosecutor to have standing in this process is based on the fact that “the decision on compensation may also very well be a decision on the Prosecutor’s mistakes.” Bitti, supra note 89, at 631.

120 ICC Rules, supra note 116, Rule 174(2). During the hearing and throughout the entire proceedings, the person making a claim for compensation is entitled to legal assistance. Although the Rules do not specify whether persons lacking sufficient means to pay for legal assistance will be assigned a counsel free of charge, the ad hoc Tribunals are likely to follow customary international law on this point and agree to such a proposition. See Bitti, supra note 89, at 630-31.

121 ICC Rules, supra note 116, Rule 174(3).

122 Id., Rule 175.