The Prosecutor v. Vidoje Blagojevic - Case No. IT-02-60-PT

“Decision on Blagojevic’s Application Pursuant to Rule 15(B)”

19 March 2003
Bureau (Judges Meron [President], Pocar [Vice-President], May, Liu and Jorda)¹

Procedural Background

· On 22 July 2002, Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius) denied Blagojevic’s motion for provisional release.² Blagojevic (the “Accused”) appealed the Decision.

· On 3 October 2002, the Appeals Chamber held that the Trial Chamber had erred in law by finding that guarantees from the Republika Srpska were not admissible. It therefore quashed the Decision on provisional release and returned the matter to the Trial Chamber for reconsideration directing it to take into account those guarantees when determining whether the Accused would appear for trial if provisionally released.³

· On 19 November 2002, the Trial Chamber again denied the motion for provisional release.⁴ The Accused again appealed the Decision.

· On 17 February 2003, the Appeals Chamber held that the Trial Chamber had again failed to take the Republika Srpska guarantee into account and then determined for itself that, notwithstanding the validity of that guarantee, it was not satisfied that Blagojevic would appear for trial if provisionally released. The appeal was dismissed.⁵

· On 26 February 2003, Blagojevic filed a motion to disqualify the Trial Chamber on the grounds of actual bias and unacceptable appearance of bias and requested that the matter be referred to the Bureau.⁶

The Decision

The Bureau denied the Accused’s motion.

The Reasoning

Disqualification of Judges under Rule 15(B)

The Accused’s motion was filed pursuant to Rule 15. Rule 15(A), governing disqualification of Judges, 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”. Rule 15(B) authorises “[ a]ny party” to apply to the Presiding Judge of a Chamber for the disqualification of a Judge of that Chamber “upon the above grounds”. There is a possibility under Rule 15(B) that the matter be deferred to the Bureau “if necessary”, such as in the present case because the full Chamber is the subject of the motion.

In interpreting and applying the impartiality requirement, the Appeals Chamber set the following standard:

“A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

(i) 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
(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias”.⁷

The Accused contends that the Trial Chamber’s repeated failure to follow the Decision of the Appeals Chamber concerning the significance of the Republika Srpska guarantee demonstrates both actual bias and appearance of bias. The Prosecution contends that applications under Rule 15(B) should be limited to those based on the grounds expressly mentioned in Rule 15(A), and that the application should therefore have been submitted to the Trial Chamber under Rule 73 rather than to the Bureau under Rule 15.⁸

The scope of Rule 15(B)

The Bureau acknowledged that “narrowly construed, the terms of Rule 15(A) and 15 (B) might most naturally be read as excluding disqualification motions based on the conduct of the Judge in the very case in which the disqualification is sought”.⁹ Nonetheless it found that the “Appeals Chamber ha[d] not interpreted Rule 15 narrowly […] but ha[d] instead interpreted Rule 15 broadly as co-terminous with the statutory requirement of impartiality and thus as including within its scope all the possible bases for disqualification noted [in para. 189 of the Furundzija Appeal Judgement]”.¹⁰ The Bureau also noted that the Bureau of the International Tribunal for Rwanda had not refused to adjudicate a disqualification Rule 15 application based on the conduct of the Judges in the very proceeding in which the disqualification was sought.¹¹

The Bureau held that “in a truly extraordinary case […] the Bureau would not rule out entirely the possibility that decisions rendered by a Judge or Chamber by themselves could suffice to establish actual bias”.¹² Nevertheless it found that in the present case the Accused had failed to rebut the presumption of impartiality of the Judges.¹³ It held that “[t]he Trial Chamber’s apparent intransigence in the face of the Appeals Chamber’s express direction on remand is unfortunate, but the Bureau does not find in the Trial Chamber’s conduct evidence of bias against the Applicant”.¹⁴ Having reviewed the decisions in question the Bureau found that “the Trial Chamber’s behaviour resulted from its disagreement with the Appeals Chamber on a point of law about which reasonable jurists could certainly differ –namely, the status of guarantees from Republika Srpska- and its inadequate appreciation of the binding effect of Appeals Chamber decisions on Trial Chamber”.¹⁵

The Bureau addressed the alleged appearance of bias on which the Applicant based its claim by using a similar approach. It found that “a reasonable observer, properly informed, would share its conclusion that the Trial Chamber’s conduct flowed not from bias against the Applicant but from disagreement with the Appeals Chamber over a legal issue and inadequate appreciation of the principle that the Appeals Chamber decisions are binding on Trial Chambers”.¹⁶ It further found that “even when a Trial Chamber disregards an Appeals Chamber’s Decision, it would take a more extended pattern of decisions uniformly favouring one party before the Bureau could find that a reasonable observer could reasonably apprehend bias against the other party”.¹⁷

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1. Judge Schomburg, as President of Trial Chamber II, normally sits, under Rule 23(A), as a member of the Bureau. Since the application under review also concerns Judge Schomburg, the Bureau decided, under Rule 23(E), to assign Judge Jorda as “the senior available Judge” in his place.
2. Decision on Provisional Release of Vidoje Blagojevic’s Application for Provisional Release, IT-02-60-PT, 22 July 2002, Judicial Supplement No. 35.
3. Decision on Provisional Release of Vidoje Blagojevic and Dragan Obrenovic, IT-02-60-AR65 & IT-02-60-AR65.2, 3 October 2002, Judicial Supplement No. 37.
4. Decision on Vidoje Blagojevic’s Application for Provisional Release, IT-02-60-PT, 19 November 2002.
5. Decision on Provisional Release Application of Blagojevic, IT-02-60-AR65.4, 17 February 2003, Judicial Supplement No. 40.
6. Vidoje Blagojevic’s Motion to Disqualify the Trial Chamber (Judges Schomburg, Mumba and Agius) on the Grounds of Actual Bias and Unacceptable Appearance of Bias & Request for this Matter to be Referred to the Bureau for its Determination & Request for an Expedited Hearing, IT-02-60-PT, 26 February 2003.
7. Furundzija, IT-95-17/1-A, Judgement (“Furundzija Appeal Judgement”), 21 July 2000, para. 189, Judicial Supplement No. 18.
8. Under Rule 73 (Other Motions) either party may move before the Chamber dealing with the case for appropriate ruling or relief. In case of disagreement the parties must request that the same Chamber grant certification of appeal.
9. Para. 9. The Bureau added in footnote 18 that “this interpretation is consistent with the so-called extrajudicial source doctrine in the United States, according to which actions by a Judge in the proceeding at hand are considered insufficient by themselves, as a matter of law, to support the Judge’s disqualification from that proceeding”. See Litecky v. United States, 510 U.S. 540, 554-56 (1994).
10. Para. 10.
11. Bagosora, ICTR-98-41-I, Determination of the Bureau pursuant to Rule 15(B), 20 February 2002. The Defence, in support of its motion, was referring to the Judges reliance on the “importance, high profile and influence” of the four Accused to base a decision they made “before the commencement of the trial, without considering any evidence in respect of the allegations against them”. In the Defence’s view it amounted to “a preconception that is particularly prejudicial to the Accused”. The Bureau denied the motion.
12. Para. 14.
13. Article 13(1) of the Statute provides that Judges of the International Tribunal “shall be persons of high moral character, impartiality and integrity”. See also para. 196 of the Furundzija Appeal Judgement: “[i]n the view of the Appeals Chamber, there is a presumption of impartiality which attaches to a Judge”.
14. Para. 14.
15. Ibid. On the binding effect of the Appeals Chamber decisions on Trial Chambers see Aleksovski, IT-95-14/1-A, Judgement, 24 March 2000, para. 13, Judicial Supplement No. 13: “[t]he Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers for the following reasons”.
16. Para. 15. On the notion of “hypothetical fair-minded observer” see Krajisnik, IT-00-39-PT, Decision on the Defence Application for Withdrawal of a Judge from the Trial, 22 January 2003, Judicial Supplement No. 39.
17. Para. 15.