Case No. IT-02-60-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr. Hans Holthuis

Decision of:
31 March 2003

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
DRAGAN OBRENOVIC
DRAGAN JOKIC
MOMIR NIKOLIC

_________________________________________

DECISION ON VIDOJE BLAGOJEVIC’S MOTION FOR DISQUALIFICATION OF THE TRIAL CHAMBER AND CONCOMITANT REQUEST FOR CERTIFICATION TO APPEAL

_________________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. David Wilson and Mr. Dusan Slijepcevic for Dragan Obrenovic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
Mr. Veselin Londrovic and Mr. Stefan Kirsch for Momir Nikolic

 

TRIAL CHAMBER II (“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”),

BEING SEISED OF “Vidoje Blagojevic’s Motion for Disqualification of the Trial Chamber and Concomitant Request for Certification to Appeal, ” filed 31 March 2003 (“Motion”), in which the Accused Vidoje Blagojevic (“Applicant”) moves for disqualification of the Judges of Trial Chamber II currently assigned to his case, pursuant to Rule 73(A) of the Rules of Procedure and Evidence (“Rules”),1 and, in the event that the Trial Chamber denies the Motion, that the Trial Chamber grant certification for interlocutory appeal pursuant to Rule 73(B) of the Rules,2

NOTING the “Prosecution’s Response to Vidoje Blagojevic’s Motion for Disqualification of the Trial Chamber and Concomitant Request for Certification,” filed on 31 March 2003 (“Prosecution’s Response”), in which the Prosecution opposes the Applicant’s request for disqualification of the Trial Chamber, while, in the event that the Trial Chamber denies the Motion, supporting the Applicant’s request for certification for interlocutory appeal on the grounds that that an interlocutory appeal “would serve the interests of finality and judicial economy by potentially avoiding a costly and time consuming post-judgement appeal on grounds of improper bias,”3

NOTING the “Decision on Blagojevic’s Application Pursuant to Rule 15(B)” rendered by the Bureau4 on 19 March 2003, in which the Bureau denied the Applicant’s motion, filed pursuant to Rule 15(B) of the Rules,5 for disqualification of the Judges of Trial Chamber II currently assigned to his case because of actual bias and the appearance of bias,

NOTING that in the First Bureau Decision, the Bureau denied the motion for disqualification after review of the motion on the merits,

NOTING the motion by the Applicant of the First Bureau Decision,6

NOTING that in the “Decision on Blagojevic’s Motion for Clarification” (“ Second Bureau Decision”) rendered by the Bureau on 27 March 2003, the Bureau states that it “seriously considered” imposing sanctions on counsel for Blagojevic for filing a request for clarification of the First Bureau Decision, which it found “largely seeks to revive claims already rejected in the Bureau’s denial of Blagojevic’s disqualification motion,” 7

NOTING the Second Bureau Decision found, in part, that there exists “no provision in either the Statute or the Rules for appeals from decisions of the Bureau to the Appeals Chamber,” and that “because, in the Bureau’s view, Rule 73’s provisions for interlocutory appeal do not apply to its disqualification decisions, were Blagojevic to attempt, pursuant to Rule 73 of the Rules, to seek certification to appeal, the Bureau would not provide such certification,”8

NOTING FURTHER that in the Second Bureau Decision, the Bureau cites a question raised by the Prosecution in its response9 to the Motion for Clarification, namely “whether, even when the Bureau has decided a disqualification motion pursuant to Rule 15(B) of the Rules, the party may not bring the same motion before the Trial Chamber as a motion pursuant to Rule 73 of the Rules,”10 and finds that it is not competent to resolve the matter, and that “?igt is up to the Trial Chamber to which such a motion is directed” to determine that issue,11

FINDING that the “Trial Chamber to which such a [Rule 73] Motion is directed ” refers to this Trial Chamber, namely Trial Chamber II comprised of the three permanent Judges, and that it is therefore for this Trial Chamber to answer the question of “whether, even when the Bureau has decided a disqualification motion pursuant to Rule 15(B) of the Rules, the party may not bring the same motion before the Trial Chamber as a motion pursuant to Rule 73 of the Rules,”12

CONSIDERING that the Applicant filed the Motion “in part because of the recent ?Second Bureau Decisiong, in which the Bureau stated that it was not competent to resolve the issue raised by both the Defence and Prosecution as to whether a decision by the Bureau is subject to review by the Appeals Chamber through an interlocutory appeal pursuant to Rule 73(B),”13

CONSIDERING that, as noted above, the Bureau found that there is no basis for appeals from decisions of the Bureau to the Appeals Chamber,14

CONSIDERING that the Trial Chamber finds that the Applicant filed the Motion in accordance with the Second Bureau Decision, paragraph 5, in order to have the question of whether, having exhausted his remedies under Rule 15(B), he could then bring the same motion for disqualification before the Trial Chamber pursuant to Rule 73 of the Rules,

FINDING that in this concrete case, the Trial Chamber, sitting in its entirety pursuant to Rule 73, is bound to address the Motion under Rule 73 in order to address the question raised, namely whether the Applicant had an option to file the motion for disqualification under Rule 73 after the Bureau has taken a decision on disqualification pursuant to Rule 15,

CONSIDERING that in the First Bureau Decision, the Bureau make it clear that Rule 15 has been “broadly interpreted”15 and includes within its scope “all the possible bases for disqualification” noted in paragraph 8 of that decision, namely in cases of actual bias or an unacceptable appearance of bias,16

FINDING therefore that the Trial Chamber cannot address the issue of disqualification under Rule 73 (“Other Motions”) when Rule 15 operates as lex specialis on the issue of disqualification of judges,

FINDING FURTHER that as the Trial Chamber cannot rule on the Motion pursuant to Rule 73(A), the Trial Chamber cannot grant certification on the Motion pursuant to Rule 73(B),

HEREBY REJECTS the Motion.

 

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

________________
Judge Wolfgang Schomburg
Presiding

Dated this thirty-first day of March 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Rule 73(A) provides: “After a case is assigned to a Trial Chamber, either party may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. Such motions may be written or oral, at the discretion of the Trial Chamber.”
2 - Rule 73(B) provides: “Decisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.”
3 - Prosecution’s Response, para. 3.
4 - In this instance, the Bureau is comprised of: Judge Theodor Meron (President of the Tribunal); Judge Fausto Pocar (Vice-President of the Tribunal); Judge Richard May (Presiding Judge of Trial Chamber III); Judge Daqun Liu (Presiding Judge of Trial Chamber I); and Judge Claude Jorda (“Senior Available Judge”, sitting in the place of Judge Wolfgang Schomburg, Presiding Judge of Trial Chamber II).
5 - Rule 15(B) provides: “Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds. The Presiding Judge shall confer with the Judge in question, and if necessary, the Bureau shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.”
6 - Vidoje Blagojevic’s Expedited Motion for Clarification of the Bureau’s Decision on Blagojevic’s Application to Disqualify the Trial Chamber Pursuant to Rule 15(B) Motion, 21 March 2003 (”Motion for Clarification”).
7 - Second Bureau Decision, para. 1.
8 - Second Bureau Decision, para. 4.
9 - Prosecution’s Response to Vidoje Blagojevic’s Expedited Motion for Clarification, 26 March 2003.
10 - Second Bureau Decision, para. 5.
11 - Id.
12 - Id.
13 - Motion, page 1.
14 - Second Bureau Decision, para. 4.
15 - Second Bureau Decision, para. 9.
16 - First Bureau Decision, para. 8. See, First Bureau Decision, paras 9-12, on the discussion of the scope of Rule 15.