On 20 February 1998 the Defence in Prosecutor v. Dario Kordic and Mario Cerkez (IT-95-14/2-PT) filed an "Accuseds Application Requesting Disqualification of Judges Jorda and Riad" (Official Record at Registry Page ("RP") D2741-D2742) ("Application"). In reply, on 3 March 1998 the Prosecutor filed a "Prosecutors Response to Accuseds Application Requesting Disqualification of Judges Jorda and Riad" (RP D2754-D2759).
In the Application, the Defence requested that Judges Jorda and Riad be disqualified, either voluntarily or by order of the Bureau, from participation in the Trial Chamber assigned to hear the case against them. Referring to Articles 20 and 21 of the Statute of the Tribunal and Rule 15 of the Rules of Procedure and Evidence ("Rules"), the Application cited two grounds.
Firstly, the Defence submitted that the fact that both Judge Riad and Judge Jorda are currently sitting on the Trial Chamber hearing the case The Prosecutor v. Tihomir Blaskic (IT-95-14-T) will result in the undue delay in the progress of the cases against Mr. Kordic and Mr. Cerkez. Secondly, the Defence submitted that the fact that Judges Jorda and Riad are hearing the Blaskic case jeopardises their ability to hear impartially the evidence presented in the case of Mr. Kordic and Mr. Cerkez, which involves many of the same events with which the Blaskic case is concerned.
In his capacity as Presiding Judge of Trial Chamber I, Judge Jorda requested the Bureau to determine whether Sub-rule 15(A) of the Rules required that he and Judge Riad be disqualified. Judge Jorda and Judge Riad presented their views to the Bureau and withdrew. Thereafter the Bureau deliberated and decided the matter in their absence.
The decision of the Bureau is limited to the grounds for disqualification specified in Sub-rule 15(A). Those grounds do not cover the claim that the participation in the Blaskic case of Judges Jorda and Riad will cause undue delay in the commencement of the trial of Mr. Kordic and Mr. Cerkez. That claim is left to be decided by the Trial Chamber hearing the latter case.
As to the second ground, concerning impartiality, the Bureau notes that it is a fundamental right of all persons facing criminal charges to be tried before an independent and impartial tribunal. This right, which is incorporated into major human rights instruments, is reflected in Sub-rule 15(A) of the Rules, reading as follows:
A Judge may not sit on a trial or appeal in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality. He shall in any such circumstance withdraw, and the President shall assign another Judge to sit in his place.
In applying this Rule, the Tribunal is guided by the principle that the requirement of impartiality prohibits not only actual bias or prejudice, but also the appearance of partiality. Thus, where the circumstances create a reasonable or legitimate suspicion of prejudice, there may be a basis for disqualification though in fact no actual bias or prejudice exists.
However, as is shown by the jurisprudence on the subject, it does not follow that a judge is disqualified from hearing two or more criminal trials arising out the same series of events, where he is exposed to evidence relating to these events in both cases. This applies also to the situation where an accused in the later case was previously named as a co-accused in the first indictment. A judge is presumed to be impartial. In this case there is nothing to rebut that presumption.
This conclusion is reached independently of certain considerations which, because of their importance and possible legal significance, may however be noted. The nature of the Tribunals jurisdiction is such that the cases before it inevitably overlap. On the one hand, the same issues and the same evidence are often involved. On the other hand, the Tribunal possesses a finite number of judges. On a view opposite to that reached in this case, the work of the Tribunal would soon grind to a halt.
In the light of the above, the Bureau, (Judge Jorda, a member, being absent in the circumstances abovementioned) unanimously decides that Judges Jorda and Riad are not precluded by Sub-rule 15(A) from participating in the hearing of the case Prosecutor v. Dario Kordic and Mario Cerkez (IT-95-14/2-PT). The issue of undue delay raised by the Application and filed with Trial Chamber I by the Defence is left to be resolved by that Chamber when it rules on said Application.
Gabrielle Kirk McDonald
Dated this fourth day of May 1998
At The Hague,
[Seal of the Tribunal]