Case: IT-99-36-R 77
Judge Theodor Meron, President
Judge Patrick Robinson
Judge Liu Daqun
Judge Mehmet Güney
Judge Amin El Mahdi
Mr Hans Holthuis
11 June 2004
DECISION ON APPLICATION FOR DISQUALIFICATION
Amicus Curiae Prosecutor:
Brenda J Hollis
1. Milka Maglov (“Maglov”) has filed an application under Rule 15(B) of the Rules of Evidence and Procedure (“Rules”) for the disqualification and withdrawal of Judges Agius, Janu and Taya from the determination of contempt proceedings against her.1 Pursuant to that Rule, Judge Agius, as Presiding Judge, referred the application to the Bureau for determination. As the Presiding Judge of Trial Chamber II, Judge Agius is a member of the Bureau. Pursuant to Rule 23(E) of the Rules, Judge Güney will exercise the functions of Judge Agius for the purpose of determining this application. Pursuant to the same Rule, Judge El Mahdi will perform the functions of Judge Pocar whose earlier involvement in the substantive proceedings led to his recusal. As discussed in more detail below, the Trial Chamber appointed an amicus curiae to conduct a formal investigation of and provide a response to Maglov’s complaint.2
2. Maglov was formerly the co-counsel for the accused Radoslav Brdanin, a case assigned to Trial Chamber II composed of Judges Agius, Janu and Taya. On 8 April 2002, a complaint was made to the Trial Chamber concerning Maglov’s contact with a prosecution witness. Following receipt of this complaint, the Judges requested a formal investigation of the complaint by an amicus curiae appointed for that purpose and following that investigation charged Maglov with contempt pursuant to Rule 77 of the Rules.3 The Trial Chamber referred the matter to the President to designate a Trial Chamber to hear the contempt pursuant to Rule 77(D)(ii). The President assigned the case back to the Trial Chamber on the basis that, unless there were exceptional circumstances, it is for the same Trial Chamber seised of the case in which the contempt allegedly occurred to take appropriate action and resolve the matter.4
3. The Trial Chamber commenced contempt proceedings on 16 February 2004 and the prosecution case concluded on 19 February. A motion for acquittal made by Maglov at the close of the prosecution case was rejected. The defence case has not yet commenced.
4. Maglov advances a number of grounds in support of the application for withdrawal.5 Firstly, she says that, due to her position as co-counsel for the Brdanin defence each of the Judges has had an association with her that might affect that Judge’s impartiality. Secondly, each of the Judges has an association with lead-counsel for the Brdanin defence, John Ackerman, a prosecution witness in the case against her, which might affect that Judge’s impartiality. Third, Maglov argues that each of the Judges has an interest in safeguarding the integrity of the Brdanin proceedings, and a finding that lead-counsel for the defence lacked credibility or professionalism may form a basis for Brdanin to challenge any conviction which might be returned in those proceedings. Fourth, the Judges of the Trial Chamber initiated the contempt proceedings and are now hearing the proceedings, which leads to the appearance of the Judge’s being both party and judge in their own cause. Fifth, Maglov submitted the proceedings against her conducted by the Trial Chamber are not in fact fair. In addition, Maglov states that part of her case, yet to be heard, will lead evidence about the internal workings of the Brdanin defence team, which is a factor capable of affecting the Brdanin trial.
5. Article 21(2) of the Statute of the Tribunal guarantees defendants a “fair and public hearing”. An integral component of the fair trial guarantee is the fundamental right to be tried before an independent and impartial Tribunal. In addition, Article 13(1) of the Statute provides that the judges of the Tribunal “shall be persons of high moral character, impartiality and integrity”.
6. Rule 15(A) of the Rules governs the disqualification of judges. It provides that “[a] Judge may not sit on a trial or appeal in a case in which the Judge has a personal interest or concerning which the Judge has had any association which might affect his or her impartiality”. The Appeals Chamber has set out the following standards as interpreting the impartiality requirement of the Statute and the Rules:
(i) A Judge is not impartial if it is shown that actual bias exists.
(ii) There is an unacceptable appearance of bias if:
a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.6
7. In this case, Maglov alleges actual bias on the part of the Judges as well as the unacceptable appearance of bias. The “reasonable observer” of the appearance of bias test “must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.7 What must be considered is “whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgment) would be that Sthe judge in questionC might not bring an impartial and unprejudiced mind to the issues arising in the case”.8
8. The jurisprudence of the Tribunal establishes a presumption of impartiality in relation to the functioning of any Judge of the Tribunal. To rebut the presumption of impartiality, the reasonable apprehension of bias must be “firmly established ”.9 At the basis of this threshold is the notion that it is as much of a threat to the interests of the impartial and fair administration of justice for judges to disqualify themselves on the basis of unfounded and unsupported allegations of apparent bias as the real appearance of bias itself.10
9. In the following these standards shall be applied to the grounds advanced by Maglov as establishing bias or the appearance of bias on the part of the Judges hearing the contempt allegation against her.
10. Maglov alleges that the fact that each of the Judges has an association with her as co-counsel for the Brdanin defence means that their impartiality may be affected. She argues that the Judges are being asked to adjudicate her credibility and professionalism giving rise to an objection in principle as the Judges will take into account “consciously or subconsciously” material known to them which is irrelevant to the contempt proceedings. Maglov asserts that it is inappropriate for the Judges to adjudicate the contempt motion in this case as their neutrality had necessarily been compromised when they obtained confidential matter about Maglov from the trial.
11. The confidential matter of which Maglov complains arose on 19 February 2002 during the Brdanin trial. A prosecution witness gave evidence concerning an earlier conviction he had received for espionage and complained to the Trial Chamber that the legal representation accorded to him was “utterly ineffectual”. He identified Maglov as his former advocate and affirmed her presence in the courtroom. Following this incident, the Judges expressed their concern that Maglov had knowingly continued to appear as co-counsel in the Brdanin case despite having represented a person whom she was aware was to appear as a prosecution witness and whose evidence was to be challenged. Judge Agius, as Presiding Judge, suggested that Maglov should immediately withdraw from the proceedings as the Judges considered that there may be a conflict of interest or ethical misconduct that required investigation.11 On about 17 April 2002, Maglov was suspended from her position as co-counsel for Brdanin because of other conduct in relation to the witness.
12. The Amicus curiae Prosecutor supports Maglov’s application for disqualification upon this basis. The Amicus curiae Prosecutor claims that the exposure of the Judges of the Trial Chamber to this allegation may give rise to an appearance of bias or partiality in the resolution of the contempt matters.12
13. The Bureau does not accept that the Tribunal’s Judges are unable to ascertain what information before them is relevant to the case they are trying. In this sense, the Bureau is of the view that in reaching a decision on Maglov’s other conduct with respect to the prosecution witness, and which forms the basis of the present contempt proceedings, the Judges will not be influenced by their decision concerning Maglov’s conduct in relation to the prosecution witness which led to her suspension as co-counsel. Judges are, as a matter of course, often required to make decisions on the criminal responsibility of a person with knowledge of that person’s past involvement in and conviction for other offences. It is not uncommon for Judges to be exposed to information about the cases that come before them from the media, or connected prosecutions. In undertaking their tasks Judges are well aware that they should not render a decision on a person’s conduct merely based on their knowledge of that person’s past conduct. The training and professional experience of Judges instills in them the capacity to put out of their mind all evidence other than that which is relevant and presented at trial in rendering their verdict. The Bureau is not satisfied, therefore, that the fact that the Judges of the Trial Chamber have knowledge of Maglov’s conduct which led to her suspension as co-counsel to Brdanin necessarily rebuts the presumption of impartiality in the contempt allegation before them.
14. Maglov alleges that each of the Judges has an association with lead counsel John Ackerman which affects or may affect their impartiality.13 Mr. Ackerman was called as a prosecution witness and gave evidence to the effect that he ensured that orders of the Trial Chamber and materials disclosed by the Office of the Prosecutor were properly and clearly communicated to all members of the defence team, and that he had taken steps to ensure that Maglov understood her obligations in relation to such materials and that he did not authorize her to approach the prosecution witness or to disclose the status of that witness. Maglov says that Mr. Ackerman’s management of the defence team is clearly relevant to the contempt proceedings. She says that the Judges are being asked to adjudicate the credibility and professionalism of a prosecution witness who is also lead-counsel in the Brdanin trial and that those Judges may be moved by material which is known to them and which is not adduced in the course of the contempt trial.
15. In relation to this ground of appeal Maglov argues that it is important to consider the context of the Brdanin proceedings. The trial began on 23 January 2002, and Judge Agius has been involved in the case from 10 December 2001. Mr. Ackerman has at all times been lead-counsel in the case, and a relationship of mutual respect has developed between Mr. Ackerman and the Judges. This mutual respect is exemplified by exchanges between Mr. Ackerman and the Judges in the Brdanin proceedings and in the Maglov contempt proceedings. Maglov submits that it is unrealistic to expect the Judges to be unaffected by their relationship with Mr. Ackerman when assessing his credibility and professionalism.
16. The Amicus curiae Prosecutor supports Maglov’s application on this basis. The Amicus curiae argues that the Trial Chamber should have declined to hear the matter because of its stated assessment of lead-defence counsel Ackerman during the Brdanin proceedings. He testified as a witness in the prosecution case and will probably give evidence in relation to the defence case. Mr. Ackerman’s actions or omissions, as well as his instructions and/or directions or advice to members of his defence team may well be relevant to issues in the present contempt proceedings and the Judges will be required to assess his credibility and possible accountability in relation to Maglov’s acts or omissions.14 The Amicus curiae Prosecutor argues that these circumstances place the Trial Chamber “in a difficult position in reaching a credible decision in this contempt proceeding,” and while there is no actual bias, the circumstances may give rise to the appearance of bias or partiality and for this reason the Trial Chamber should have refrained from hearing the matter.15
17. The fact that an attorney who has appeared before a Chamber as counsel then appears as a prosecution witness is not sufficient to rebut the presumption of impartiality accorded to Judges. It is quite common in most jurisdictions for Judges to form professional relationships with counsel and for Judges and counsel to show signs of mutual respect for each other.16 That the Judges of the Chamber have expressed appreciation for lead counsel’s professional conduct in the Defence of Brdanin does not mean, given the responsibilities of their office, those Judges would be unable to bring an unbiased mind to the assessment of evidence lead-counsel gives in relation to the allegation against Maglov. In most cases of contempt prosecuted by this Tribunal it is lawyers that have appeared before the Tribunal to answer the allegation as the accused while other lawyers give evidence in relation to that allegation. The exchanges relied upon by Maglov fail to establish that the Judges in the current motion have been prejudiced by any assessment of lead counsel’s credibility as a prosecution witness in the proceeding against Maglov. On the contrary, the exchanges cited17 simply reflect a cordial professional relationship between advocate and Chamber as a result of their long association over the course of the Brdanin trial. The test to determine whether there is sufficient ground to establish the appearance of judicial bias is based on the knowledge of a fair minded observer with sufficient knowledge of the actual circumstances. In applying this test, the Bureau is not satisfied that the presumption of impartiality is rebutted. As the Appeals Chamber stated in Furundzija, in assessing whether certain doubts may exist in relation to the impartiality of a judge “the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held objectively justified ”.18
18. Maglov argues that each of the Judges has a personal interest in protecting the integrity of the Brdanin proceedings in which they have been involved for over two years.19 She claims that the Judges would be most reluctant, consciously or subconsciously, to make any finding regarding the credibility or professionalism of Mr. Ackerman, because such a finding might undermine the integrity of the Judgment to be rendered in those proceedings. She argues that any finding adverse to the credibility of Mr. Ackerman may provide Brdanin with a ground of appeal on the basis of ineffective representation. Rather, the Judges have an interest in making a finding favourable to Mr. Ackerman as this would promote the appearance of justice in the case for which the Judges are responsible.
19. All Judges have, as a matter of course, an interest in ensuring the integrity of the proceedings in which they are involved. Such an interest is not, as Maglov alleges, a personal interest, but a professional interest. It includes the interest to ensure that all proceedings before the Tribunal are conducted impartially and in accordance with international standards of due process and fair trial rights. The interest of Judges is not just to get the trial done, but rather to get it done fairly, even if that means raising the possibility of grounds of appeal. It is expected that Judges will not shy away from making the appropriate finding, whatever it may be.
20. Maglov argues that the Trial Chamber has the appearance of being a party and a judge in its own cause. She says that the Judges of the Trial Chamber initiated the proceedings and those Judges are now trying the proceedings themselves, and that the Judges have ignored or failed to act effectively upon representations made to them that it was inappropriate for them to hear the contempt allegation against Maglov.20
21. The allegation against Maglov was raised by the Prosecutor during the course of the Brdanin proceedings on 8 April 2002. The Judges sought an explanation of the matter in court and heard from both Mr. Ackerman and Maglov. Maglov was told that she had a choice whether or not to respond and that she had a right to remain silent. After hearing the parties the Judges determined to investigate the allegation by appointing an impartial amicus curiae and set the terms of reference of the investigation to be carried out by the amicus curiae. Upon receiving the report of the amicus curiae a hearing was convened on 10 July 2002, which Maglov was required to attend. At the hearing the Judges heard from the amicus curiae and counsel retained by Maglov. On 15 April 2003, the Trial Chamber issued an order determining to proceed with prosecuting the matter. After the President designated the Chamber to hear the contempt the Trial Chamber appointed an Amicus curiae Prosecutor and set the terms of the initial indictment.21
22. Maglov argues that the Judges are interested parties in these proceedings and that their assignment to hear the contempt case against her is contrary to recognised international human rights standards.22 In support of this ground Maglov relies upon academic writing that draws a similar conclusion.23
23. There is no basis to Maglov’s claim that the Judges are interested parties in the proceedings. On the contrary, Rule 77(C)(iii) expressly permits a Trial Chamber to initiate proceedings itself when it has reason to believe that a person may be in contempt of the Tribunal. Thus, the Trial Chamber ordered the allegation to be investigated according to the procedure established by the Rules. The investigation of the allegation was not carried out by the Judges, but by an amicus curiae appointed for that purpose. Upon receiving the report of the amicus curiae both parties were given an opportunity to respond prior to the Trial Chamber’s decision to prosecute the contempt. Once that decision was made, the matter was referred to the President for assignment to a Trial Chamber. In accordance with the practice of the Tribunal the case was assigned back to the Chamber on the reasoning that that Chamber, being aware of all the issues, would be best placed to ensure that the proceeding was a fair one. The Trial Chamber then appointed an Amicus curiae Prosecutor and instructed that Prosecutor as to the findings made by the amicus curiae investigator. The procedure adopted by the Trial Chamber was thus proper and Maglov has not substantiated her claim that the Trial Chamber’s efforts to cause the matter to be investigated and prosecuted are driven by partiality or that a reasonable observer would perceive the Trial Chamber’s conduct as biased.
24. Maglov argues that the President’s order assigning the Trial Chamber was done on the basis that there were no exceptional circumstances that may call into question the impartiality of the Chamber. She says, however, that the Trial Chamber was aware that there were exceptional circumstances sufficient to call into question its impartiality. The issue as to the appropriateness of the Trial Chamber hearing the contempt proceedings was raised by the Amicus curiae Prosecutor, lead -prosecution counsel in the Brdanin trial, and lead-defence counsel in the Brdanin trial. On 8 December 2003, lead-prosecution counsel made an explicit oral application for the contempt charge to be tried: (i) by a different trial chamber, or (ii) by a different composition of the trial chamber, or (iii) at the conclusion of the Brdanin Trial.
25. Maglov says that the Prosecution submitted that it could place lead-defence counsel, Mr. Ackerman and the Trial Chamber in an embarrassing situation if the Trial Chamber were to rule on the evidence of a person then appearing before it as trial counsel, and that this could have an effect on the conduct of the Brdanin trial at a later time, or perhaps on appeal.24 Following that submission, lead counsel, Mr. Ackerman, indicated that his likely claim of privilege in the contempt proceeding may create a serious problem. In light of these submissions, Judge Agius told the parties that their considerations would be taken into account and that while steps had been taken to have the contempt proceeding transferred to another Chamber on two occasions, it was a Tribunal policy that the contempt proceedings should be heard in the Chamber in which it occurred. He further stated “without hesitation” that he did not share the preoccupations of the prosecution but that he was more concerned with what Mr. Ackerman had said as that could create a problem for whichever party tried to call him as a witness. The parties were told that the matter would be considered and a decision taken.25 Maglov was not present during this colloquy and claims she was not aware of what had taken place. Maglov also complains that she was not represented before the President who assigned the case, and that she was not asked to address the issue when it was raised by the Amicus curiae Prosecutor at her Initial Appearance on 4 December 2003.
26. Maglov argues that the Trial Chamber should have sought recusal from the case following the submissions made or should have referred the submissions to the President as constituting grounds on which the impartiality of the Trial Chamber may be called into question. She says it is now clear that none of these submissions were brought properly before the President by the Trial Chamber.
27. The Amicus curiae Prosecutor challenges the claims of ignorance made by Maglov. The Amicus curiae Prosecutor says that the Prosecutor’s comments did put Maglov on notice of the issue regarding the propriety of the Trial Chamber hearing the matter. After the matter was raised by the Prosecutor the Presiding Judge provided Maglov with the opportunity to respond and that she in fact declined to address the issue at that time, and declined to address the issue prior to or during the hearing that commenced in February 2004.26
28. The Amicus curiae Prosecutor argues that the comments made by Judge Agius of having twice attempted to have the matter transferred to another Chamber shows that the Trial Chamber had made a judicial determination that the case should be transferred. The Amicus curiae Prosecutor argues that once this decision had been made by the Trial Chamber it should not have had to twice attempt to transfer the case to another Chamber; rather the matter should have been transferred. To hold otherwise is an interference with the judicial independence of the Trial Chamber.27
29. The Bureau does not accept the construction placed by Maglov or the Amicus curiae Prosecutor on the statements made by the Presiding Judge of the Trial Chamber. The comments of the Presiding Judge were aimed at alleviating any doubt expressed by the parties as to the ability of the Judges to act impartially in dealing with the matter. The only issue that concerned the Judges was the statement of defence counsel that he would claim privilege against giving evidence in relation to the conduct of the defence in Brdanin. However, counsel could have asserted this claim before any Trial Chamber and not just the Brdanin Trial Chamber. The fact that the defence counsel might be embarrassed by asserting this privilege before the Trial Chamber led to the comment of the Presiding Judge that he had twice sought to have the matter transferred to another Chamber, but that there was a policy against such a transferal. In making this comment it is abundantly clear that this was not due to any difficulty the Judges had with their ability to judge the matter impartially, or because of any concern that a reasonable observer would consider that the Judges could not act impartially. If this had been so, the Judges of the Trial Chamber would, as is their duty and right as independent Judges, have recused themselves from hearing the matter. The fact that the Judges did not take this course establishes beyond doubt that they did not consider that any issue of their impartiality raised by the parties had any basis such as to warrant their recusal.
30. Maglov argues that the trial against her is not being conducted fairly and that she is not being accorded the rights to which she is entitled under Article 21 of the Statute.28 First, she alleges that from the outset Judge Agius made clear that he did not intend the proceeding against her to be conducted as a normal trial but intended to simplify the proceedings; second, disclosure made to her by the Prosecutor was incomplete and in English only, which is not her native language; third, the exchanges between Mr. Ackerman, an interested party, and the Trial Chamber in her absence, that Mr. Ackerman may claim privilege were not disclosed to her. This non-disclosure meant that she was unprepared for this claim during her cross-examination of Mr. Ackerman. The Trial Chamber, in contrast, was well prepared.
31. Maglov also complains that the Trial Chamber has failed to ensure that she is accorded a fair trial.29 While she chose to represent herself she says that the Trial Chamber should have considered the appointment of an amicus curiae to safeguard her interests from the outset of the proceedings. She asserts that she informed the Trial Chamber of the impact of the proceedings on her health at her initial appearance and that she had made an application for legal assistance prior to her trial but the issue remained outstanding during the prosecution case. She says that it was apparent to the Trial Chamber that she was unable to effectively represent herself, that her behaviour during the proceedings indicated that she was not coping with the proceedings, and was unable to put her case effectively. Maglov argues that the Judges had an obligation to intervene and to invite her to instruct counsel privately or to consider appointing an amicus curiae.
32. Finally Maglov alleges that her request for certification to appeal the judgement of acquittal has the appearance of being rejected in order to ensure that the proceedings against her were conducted as expeditiously as possible.30 She says this is despite the fact that both parties agreed that certification was justified, as each considered that they would have grounds to appeal an adverse judgment.
33. The Amicus curiae Prosecutor argues that each of the allegations made by Maglov regarding the unfairness of the proceedings against her is unfounded. First, it is clear from the record of transcript that the comment made by Judge Agius regarding a “normal trial” was not indicative of any intention to deprive Maglov of any of her fundamental rights.31 Second, with respect to disclosure, the assertion of inadequacy is unfounded because disclosure was provided in compliance with Rules 66 and 68.32 Third, when Maglov raised the necessity of having the Prosecutor’s pre-trial brief and other documents translated into BCS, the Trial Chamber informed her that she had the right to request a stay the proceedings until the translation was completed. Maglov nevertheless agreed to proceed without the translation, as she had the legal assistance of her daughter who was fluent in English,33 Fourth, Maglov should not be able to argue now that her own choices regarding representation of counsel show that the Trial Chamber failed to accord her a fair trial as she has presented herself as an experienced attorney of some 30 years experience and was considered competent to act as co-counsel in the Brdanin case.34 Fifth, Maglov further represented that while she wanted the assistance of counsel appointed by the Tribunal she did not want the proceedings delayed and that rather than delay the proceedings she would waive her right to representation. Following the denial of her request for appointed counsel she chose not to appeal that denial so as not to delay the proceedings. Finally, at no time did Maglov represent to the Trial Chamber that she was unable to proceed because of her health.35 The Amicus curiae Prosecutor claims that there is no merit to any of Maglov’s complaints about the conduct of the proceedings and that there is no merit to Maglov’s claim that the Trial Chamber refused her motion for certification to appeal the Rule 98 bis decision in order to ensure that the proceedings against her were conducted expeditiously.
34. Having considered the record of the proceedings the Bureau is satisfied that none of the allegations made by Maglov is founded. It is evident that the proceedings against her are being conducted in a fair and impartial manner and that she is being accorded all the rights of any accused before this Tribunal. Accordingly, Maglov’s allegation that the proceedings against her are either grounded in actual bias or result in the reasonable apprehension of bias on the part of the Judges is rejected.
35. The central issue of this motion is whether the present Trial Chamber was a proper forum to adjudicate allegations of Maglov’s contempt without giving rise to judicial bias or the appearance or reasonable apprehension of bias on the part of the judges. The applicant has failed to establish that a fair-minded observer, with sufficient knowledge of the circumstances of this case to make a reasonable judgement, would conclude that the Trial Chamber might not bring an impartial and unprejudiced mind to the issues arising in this case. Accordingly, the application is dismissed.
Dated this 11th day of June 2004,
At The Hague,
Judge Theodor Meron
[Seal of the Tribunal]