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

“Decision on Vidoje Blagojevic’s Motion for Disqualification of the Trial Chamber and Concomitant Request for Certification to Appeal”

31 March 2003
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· On 19 March 2003, the Bureau denied Blagojevic’s motion for disqualification of the Judges of Trial Chamber II currently assigned to his case because of actual bias and appearance of bias.¹

· On 21 March 2003, Blagojevic sought clarification of the Bureau’s Decision.²

· On 27 March 2003, the Bureau rendered its Decision on Blagojevic’s motion for clarification.³ It found 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”.⁴ The Bureau further declared itself not competent to resolve the issue, raised by both the Defence and the Prosecution, as to whether a decision on disqualification by the Bureau pursuant to Rule 15(B) is subject to review by the Appeals Chamber through an interlocutory appeal pursuant to Rule 73(B).⁵

On 31 March 2003, Blagojevic seized Trial Chamber II of a motion for disqualification of the Trial Chamber pursuant to Rule 73(A)⁶ and, in the event that the Trial Chamber denies the motion, requested that the Trial Chamber grant certification for interlocutory appeal pursuant to Rule 73(B).⁷

The Decision

The Trial Chamber denied the Motion.

The Reasoning

The Trial Chamber recalled the finding of the Bureau that there is no basis for appeals from decisions of the Bureau to the Appeals Chamber. It found that it could not “address the issue of disqualification under Rule 73 (“Other Motions”) when Rule 15 operates as lex specialis on the issue of disqualification of Judges” and 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)”.

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1. On the background of the case see Decision on Blagojevic’s Application Pursuant to Rule 15(B), 19 March 2003, Judicial Supplement No. 40.
2. 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.
3. Decision on Blagojevic’s Motion for Clarification, 27 March 2003.
4. Ibid., para. 4.
5. Rule 73 (Other Motions)
(B) 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.
6. Rule 73 (Other Motions)
(A) 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.
7. Vidoje Blagojevic’s Motion for Disqualification of the Trial Chamber and Concomitant Request for Certification of Appeal (the “Motion”), 31 March 2003.