"Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge"

18 May 2000
Judge Hunt

The Issues

In an application pursuant to Sub-rule 15(B) of the Rules of Procedure and Evidence1 made to Judge Hunt, as the Presiding Judge of Trial Chamber II, that Judge Mumba be disqualified from both the trial and the determination of a preliminary motion pending in the Trial Chamber, Momir Talic asserted that an issue in the trial - whether the acts which the accused is alleged to have committed took place in the course of an armed conflict which was international in character - was identical to an issue determined in favour of the Prosecution by the Appeals Chamber in the Tadic Conviction Appeal Judgement2, in which Judge Mumba had participated.

The accused asserted that the finding of the Appeals Chamber that the armed conflict was international involved findings on a number of subsidiary facts relating to the organisation, structure, role and actions of the Army of Republika Srpska which the Defence in the present case contested. Momir Talic submitted that it was impossible to see how Judge Mumba could change the opinion that she had expressed as to facts identical to those which would be submitted for her consideration again.

The Decision

Judge Hunt ruled that he had not been satisfied by the accused that the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgement) would be that Judge Mumba might not bring an impartial and unprejudiced mind to the issues in the present case because she had participated in the Tadic Conviction Appeal Judgement. He then conferred with Judge Mumba as required by Sub-rule 15(B) of the Rules of Procedure and Evidence, and refused the Request.

The Reasoning

• In its reply to the accused’s preliminary motion challenging the form of the indictment, the Prosecution asserted that the Trial Chamber was bound by the factual decision of the Appeals Chamber in that case, according to which the armed conflict in that place and at that time was international in character.

Judge Hunt considered that, if the argument of the Prosecution is correct and the Trial Chamber is bound by the factual decision of the Appeals Chamber upon the facts before it in the Tadic case, then the Trial Chamber would not be permitted to determine the issue for itself. He then held that the fact that Judge Mumba also participated in the Appeals Chamber would be irrelevant. Without making any final decision upon the matter at this stage, however, Judge Hunt found that this particular argument of the Prosecution raised problems, and that it was "perhaps a surprising submission that the Trial Chamber was also bound by the factual decision of the Appeals Chamber in that case when it applied that legal test to the facts of that particular case".

Judge Hunt referred to the recent obiter dictum in the Aleksovski case3 in which the Appeals Chamber stated that Trial Chambers are bound by the ratio decidendi of any decision of the Appeals Chamber. In Judge Hunt’s view, the discussion of that proposition made it clear that it is restricted to issues of law. He conceded that the statement that the decisions of the Appeals Chamber on questions of both law and fact are final may be equivocal, but recalled that he was a member of the Appeals Chamber in that case, and as such did not and still does not understand that Judgement as asserting that Trial Chambers in one case are bound by decisions of fact made by the Appeals Chamber in another case.

In dismissing the application, for the purposes of this case, Judge Hunt accepted that he should proceed upon the basis that the Trial Chamber will have to determine whether on the evidence before it in this case any acts proved against the accused were committed by him in the course of an international armed conflict.

• Judge Hunt further reviewed the legal basis upon which a judge is disqualified in common law States such as the United Kingdom, Australia and the United States of America, in civil law States such as Germany, Sweden, France and Italy, and finally in the standards (namely the notions of subjective and objective impartiality) set forth by the European Court of Human Rights in the case law4 under article 6 para. 1 of the European Convention5.

Judge Hunt agreed that Sub-rule 15(A) of the Rules of Procedure and Evidence should therefore be interpreted as reflecting the bases uniformly recognised in those jurisdictions, i.e. that a judge is disqualified not only if there is an actual bias but also if there is a reasonable apprehension by the parties that such bias exists6.

The question raised by the application was therefore whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgement) would be that, since Judge Mumba had participated in the Tadic Conviction Appeal Judgement, she might not bring an impartial and unprejudiced mind to the issue of whether the armed conflict in Bosnia and Herzegovina at the time and place relevant to this case was international.

Judge Hunt held that, as part of the knowledge which such an observer would have of the actual circumstances of this case, the hypothetical fair-minded observer would query the assertion of the accused that the facts to be submitted to the Trial Chamber in the present case will be "identical" to those before the Appeals Chamber in the Tadic case. The facts must be determined by reference to the evidence produced in the particular case.

The observer would assume that, in disputing that the armed conflict was international in character, the two accused in the present case - Momir Talic (ultimately the Chief of the General Staff in the Army of Republika Srpska) and his co-accused, Radoslav Brdjanin (the acting Vice-President of Republika Srpska) - would be better placed to produce evidence upon the subsidiary issues than Tadic (a café proprietor and a minor local politician) and that, realistically, the evidence will be somewhat different from that which the Appeals Chamber had to consider in Tadic.

Finally, the observer would know that the Judges of this Tribunal are professionals, who are called upon to try a number of cases arising out of the same events and that they may be relied upon to apply their mind to the evidence in the particular case before them7.

The question was not whether there is a reasonable apprehension that Judge Mumba will decide these issues in the same way as they were decided in Tadic. The issue was whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgement) would be that, since Judge Mumba had participated in the Tadic Conviction Appeal Judgement, she might not bring an impartial and unprejudiced mind to the issues in the present case8.

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1. "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".
2. The Prosecutor v. Dusko Tadic, Case No. IT-94-1, Appeals Chamber, Judgement, 15 July 1999.
3. The Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000, par. 113 (see Judicial Supplement No. 13).
4. Piersack v. Belgium Judgement of 1 October 1982, Series A, volume 5, No. 53, page 167; Hauschildt v. Denmark, Judgement of 24 May 1989, Series A, No. 154, page 266, European Human Rights Reports, volume 12; Bulut v. Austria Judgement of 22 February 1996, Reports of Judgements and Decisions 1996-II, page 346.
5. Article 6 para. 1 of the European Convention for the Protection of Human Rights and Civil Liberties reads inter alia: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, established by law".
6. See The Prosecutor v. Kordic and Cerkez, Case No. IT-95-14, Decision of Bureau on the application of the accused requesting the disqualification of Judges Jorda and Riad, 4 May 1998. In this case, the Defence requested that the Judges Jorda and Riad be disqualified, either voluntarily or by order of the Bureau, from participating in the Trial Chamber assigned to hear the case against them on the ground that the fact that these two Judges were hearing the Blaskic case jeopardised their ability to hear impartially the evidence presented in the case of Mr. Kordic and Mr. Cerkez, which involved many of the same events with which the Blaskic case was concerned, namely ethnic cleansing by Bosnian Croat forces in central Bosnia in 1992 and 1993.
The Bureau applied the same reasoning as Judge Hunt in the present Decision and stated inter alia that "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".
7. See The Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Trial Chamber II, Order on Emergency Motion to Limit Prosecutor’s Inquiry relating to the accused Anto Furundzija, 26 August 1998, in which the Trial Chamber affirmed that it is composed of professional Judges, capable of distinguishing evidence heard in one case from evidence heard in another case.
8. See The Prosecutor v. Kordic and Cerkez, Case No. IT-95-14, Bureau, Order on accused’s application requesting disqualification of Judges Jorda and Riad, 4 May 1998; Trial Chamber I, Decision on the Application of the Accused for Disqualification of Judges Jorda and Riad, 21 May 1998. The Application was rejected as a ground for disqualifying the two Judges in the Decisions of the Bureau and of the Trial Chamber, which both held that a Judge is not disqualified "[…] from hearing two or more criminal trials arising out of the same series of events, where he is exposed to evidence relating to these events […]". The Bureau stated inter alia that "[a] judge is presumed to be impartial" (emphasis added).
The Defence renewed its application for disqualification on 21 May 1998, which was again rejected in a Decision of the Trial Chamber of 8 October 1998. In the event, however, the case was finally transferred for trial to another Chamber, comprised of Judges May, Bennouna and Robinson.