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

“Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge”

13 March 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Hunt and Gunëy)

Procedural Background

· On 8 November 2002, Judge Orie confirmed an Indictment against Ratko Mladic. In accordance with Article 19(1) of the Tribunal’s Statute¹ he found that a prima facie case had been established against Mladic, i.e . that “the Prosecution’s evidence, if accepted and uncontradicted, sufficiently supports the likelihood of the Accused’s […] being convicted by a reasonable trier of fact”.²

· On 23 January 2003, Stanislav Galic (the “Accused”) applied to the section of Trial Chamber I hearing his trial³ for the disqualification and withdrawal of Judge Orie from the Trial.⁴ According to the Accused the fact that Judge Orie considered that a case exist against Mladic for crimes related to his case means that Judge Orie also considers that a case exists against the Accused for those same crimes. In his view this amounts to a breach of the requirement that Judges be impartial.

· On 3 February 2003, Judge Liu⁵ dismissed the application on the ground that Galic had failed “to appreciate the fundamental difference between the judicial functions of a Judge who confirms an indictment and a Judge who sits at trial”.⁶ He held that “[b]y its very nature, the confirmation of an indictment can never provide more than a presumption that the facts alleged in the indictment may very well have occurred, but certainly not that they did occur; whether this is the c ase or not remains a matter to be proved at trial”.⁷

· On 10 February 2003, pursuant to Rule 73(B)⁸, Galic applied for certification of an appeal against Judge Liu’s Decision, claiming that “a final decision must be made on the issue of impartiality at the earliest possible opportunity”.⁹ On 26 February 2003, Trial Chamber I in full rendered its Decision¹⁰ and referred the matter to the Appeals Chamber.

The Decision

The Appeals Chamber referred the application to the Bureau to rule on Galic’s original application namely, the “Defence Request for Withdrawal of Judge Alphons Orie, Presiding”, dated 23 January 2003.

The Reasoning

The Appeals Chamber held that Rule 15(B)¹¹ makes clear that the Judge whose disqualification is sought “is to have no part in the process by which the application for that disqualification is disposed of ”.¹² As regards Judge Liu’s Decision to dismiss Galic’s application, it held that it was appropriate at this stage of the procedure to confer –as Judge Liu did- with Judge Orie in order to confirm that he was not in breach of Rule 15(A)¹³ and to conclude that it was not “necessary” to refer the matter to the Bureau.

Once Galic challenged the Decision however, the Appeals Chamber stated that it “ did become ‘necessary’ to refer the matter to the Bureau”, as “[t]here is no appeal to the Appeals Chamber available from the decision of the Presiding Judge pursuant to Rule 15(B)”.¹⁴

The Appeals Chamber found that the Presiding Judge should have referred the matter to the Bureau. It nevertheless decided to deal with the application as if it had been addressed to Judge Liu. In place of Judge Liu, it addressed the matter directly to the Bureau, as “the most expeditious way of resolving the procedural problem which has arisen”.¹⁵

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1. Article 19 (Review of the indictment)
1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
2. Mladic, IT-95-5/18-I, Order Granting Leave to File an Amended Indictment and Confirming the Amended Indictment, 8 November 2002, para. 26, Judicial Supplement No. 38.
3. The Galic case has been in proceeding before a section of Trial Chamber I, comprised of Judge Alphons Orie (Presiding), Judge Amin El Madhi and Judge Rafael Nieto-Navia, since 3 December 2001.
4. Defence Request for Withdrawal of Judge Alphons Orie, Presiding, 23 January 2003.
5. The application was erroneously addressed to the section of the Trial Chamber dealing with the case, and Judge Liu –as President of Trial Chamber I- dealt with the application as if it had been correctly addressed to him.
6. Decision on the Defence Motion for Withdrawal of Judge Orie, 3 February 2003, para. 5. Italics by Judge Liu.
7. Ibid., para. 6.
8. 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.
9. Request for Certification of Appeal Against Judge Liu Daqun’s Decision on the Request for Withdrawal of Judge Alphons Orie Rendered on 3 February 2003 but Delivered on 4 February 2003, 10 February 2003.
10. Decision on the Defence Request for Certification to Appeal the Presiding Judge’s Decision on Withdrawal of Judge Orie, 26 February 2003. The request had again been erroneously addressed to the section hearing the Galic case and the Decision did not identify the basis upon which the full Trial Chamber –rather than the Presiding Judge- dealt with the motion.
11. Rule 15(B) states: “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.”
12. Para. 8.
13. Rule 15(A) states: “A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality. The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case.”
14. Para. 8.
15. Para. 9.