Prosecutor v. Stanislav Galic - Case No. IT-98-29-AR54
Appeal from Refusal of Application for Disqualification and Withdrawal
13 March 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen,
Hunt and Gunëy)
of a decision on disqualification of a Judge.
is no appeal to the Appeals Chamber available from the decision
of the Presiding Judge pursuant to Rule 15(B). Once such decision
is challenged, it is “necessary ” to refer the matter to the Bureau.
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
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.
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.
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
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
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
1. Article 19 (Review of the
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
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
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.