The Prosecutor v. Stanislav Galic - Case No. IT-98-29-AR54

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

28 March 2003
Bureau (Judges Meron [Presiding], Pocar, May, Schomburg and Liu)

Procedural Background

· On 13 March 2003, the Appeals Chamber referred to the Bureau a motion filed by Stanislav Galic on 23 January to disqualify Judge Orie from sitting in the Galic case.¹

The Decision

The Bureau denied the motion.

The Reasoning

Review of a Decision on disqualification of a Judge

The Bureau reconsidered the question as to whether, when a disqualification motion is referred to it after a Presiding Judge has rendered a Decision on the matter, it must act as an appellate body reviewing the Presiding Judge’s Decision or must consider the disqualification de novo. In keeping with the Appeals Chamber’s Decision, it held that it must in such case consider the disqualification motion afresh. The Bureau noted that the text of Rule 15(B) does not speak of an “appeal” from the Presiding Judge’s determination and that “the Rule might be read as indicating that, when the challenged Judge and the Presiding Judge agree on the proper outcome (except when those are one and the same person), that is the end of the matter”.²

Confirmation of an indictment and impartiality of the confirming Judge

The Bureau considered the merits of the application and rejected it on the same grounds as Judge Liu’s and the Appeals Chamber’s. It stated that while “the confirmation of an indictment requires a determination that, if the Prosecution’s evidence were accepted, a reasonable trier of fact could find that evidence sufficient to find the Accused guilty beyond a reasonable doubt”, a verdict at trial requires a “strikingly different determination, namely whether, in light of all the evidence presented by both sides, the Prosecution has in fact established the Accused’s guilt beyond a reasonable doubt”.³

Moreover, the Bureau stated that “the tentative determination made in confirming an indictment is based on evidence that is very likely to be introduced at trial. It is thus an initial judgement based on relevant evidence. The making of such tentative judgements based on relevant evidence does not demonstrate bias”.⁴ In its view this conclusion is embodied in Rule 15(C), which provides that “[t]he Judge of the Trial Chamber who reviews an indictment against an accused, pursuant to Article 19 of the Statute and Rules 47 or 61, shall not be disqualified for sitting as a member of the Trial Chamber for the trial of the Accused”. Therefore it held that “[i]f the same Judge may, without compromising his impartiality, confirm the indictment in a case and sit on it during the trial, a fortiori a Judge can confirm an indictment in one case that may implicate an accused in another case and sit in the latter case where some of the evidence supporting confirmation of the indictment in the first case will be presented at trial in the second”.⁵

________________________________________
1. On the background of the case see Galic, IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge (the “Appeals Chamber’s Decision”), 13 March 2003, Judicial Supplement No. 40.
2. Para. 7.
3. Para. 13.
4. Ibid.
5. Ibid.