“Decision on Motion for Disqualification”
10 June 2003
· On 22 May 2003, Vojislav Seselj (the “Applicant”) applied, pursuant to Rule 15( B) of the Rules of Procedure and Evidence (“Rules”), to have Judges Schomburg, Mumba and Agius of Trial Chamber II disqualified from hearing his case because of actual bias.1 The matter has been referred to the Bureau as one of the Judges concerned, Judge Schomburg, is the Presiding Judge of the Chamber.2
The Bureau denied the Application as frivoulous and an abuse of process.
Grounds for disqualification of Judges: religion and nationality of Judges
The Applicant claimed that the Judges present “certain personal characteristics which completely preclude them from being impartial”. The Applicant claimed that Germany, of which Judge Schomburg is a national, has “traditionally been hostile towards Serbia and the Serbian people” and explored its history, starting from the Middle Ages. In his view the fact that Germany is a member of the North Atlantic Treaty Alliance (“NATO”), whose people “committed aggression against Serbia”, should prevent Judge Schomburg from hearing his case. The Applicant qualified Judges Mumba and Agius as “ardent and zealous Catholics”, insisting mainly on the fact that he considers the Roman Catholic Church “contributed to the destruction of Yugoslavia”.
The Bureau determined that the only basis for Seselj’s Application were Judge Schomburg’s German nationality and Judge Mumba and Judge Agius’s religion. It held that “the nationalities and religions of Judges are, and must be, irrelevant to their ability to hear the cases before them impartially”3 and relied inter alia on the Statute of the Tribunal which requires Judges to be “persons of high moral character, impartiality and integrity” and on to their undertaking when they are sworn in to perform their duties “honourably, faithfully , impartially and conscientiously”. As regards Germany’s membership in NATO, the Bureau held that “[t]he policies of the governments of the countries from which Judges of this International Tribunal come are, and must be, irrelevant to the carrying out of their judicial responsibilities”.4
Application of Rule 46(C) to an accused who represents himself
The Bureau found that the Application contained “abusive and insulting” statements and qualified it as “frivolous and an abuse of process”. It referred to Rule 46( C)5 which authorises the imposition of sanctions on a counsel who files such motions and which it found applicable to proceedings before the Bureau.6 It held that “when, as in this case7, a defendant chooses to represent himself, the power given in the Rule may be exercised against the defendant himself”.8 It took note of the fact that it cannot apply the sanctions envisaged in Rule 46(C) (“non-payment, in whole or in part, of fees associated with the motion and/or costs thereof”), as the Applicant is not represented by counsel. Nonetheless it found that “one sanction the Bureau may apply to such filings is to direct the Registrar to deny filing”, as a consequence of which the “Applicant would […] be required to file a new application without the offensive language”. Further, “[i]f the Applicant were to persist, the Bureau might bar the filing of the application altogether”, and “the Trial Chamber may well apply similar principles”.9 Finally it warned the Applicant that he should be aware of these principles in drafting future pleadings.