The Prosecutor v. Momcilo Krajisnik - Case No. IT-00-39-PT

“Decision on the Defence Application for Withdrawal of a Judge from the Trial”

22 January 2003

Procedural Background

· In November 2002, the case against Momcilo Krajisnik was assigned by the President of the Tribunal to Trial Chamber I, composed of Judges Liu (President), El Madhi and Orie.

· On 14 January 2003 the Accused Momcilo Krajisnik applied to Judge Liu, pursuant to Rule 15¹, for the withdrawal of Judge Orie, by virtue of his previous function as Co-counsel for Mr. Dusko Tadic, as the Accused confirmed that he will call Mr. Tadic as a witness for the Defence.²

The Decision

Judge Liu denied the Application.

The Reasoning

Judge Liu linked Rule 15(B), under which the Accused brought his Application, to Rule 15(A) which spells out the grounds for disqualification of a Judge and which refers to “an association which might affect his impartiality”. He applied the following two-prong test:

Is there an association between Judge Orie and the present case? and, in the affirmative,

May this association affect Judge Orie’s impartiality?

Is there an association between Judge Orie and the present case?

The notion of “an association”

Judge Liu considered the notion of “an association”, stating that “[i]t would be erroneous to assume from the outset that every possible association, however remote , between the Judge and the Accused or for that matter a witness or the facts relating to another case against a witness automatically qualifies as ‘an association’ within the meaning of Rule 15”.³ In his view a party challenging the Judge’s impartiality must demonstrate that the Judge entertains “a personal interest in or particular concerns for any of the Parties, the witnesses or the facts of the case”, making clear that [s]uch personal interest or particular concern is certainly different from a lawyer’s professional interest in the subject-matter of the case”.⁴

May this association affect Judge Orie’s impartiality?

The definition of an “actual bias”

In Judge Liu’s view, a Judge would certainly host an actual bias and thus be disqualified as a Judge when it is proved that there is an association which “involves the Judge’s personal interest in the outcome of the case”.⁵

An appearance of bias and the “hypothetical fair-minded observer”

Judge Liu noted that there was nothing in the case suggesting that Judge Orie was biased by personal interest in the outcome of the case. He therefore relied upon the Tribunal’s practice that a Judge should not only be free from bias but that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias.⁶ He then turned to the person in charge of ascertaining a Judge’s impartiality, in keeping with the commonly applied model in the Tribunal’s case-law, namely the “hypothetical fair-minded observer”⁷, who is “by implication […] someone from the outside, who, as an observer (and not a party) recognises and understands the circumstances well enough to tell whether or not the public sense of Justice would be challenged by the presence of a particular Judge on the Bench in the case at end”.⁸

Judge Liu applied the above-mentioned principles to the case. He stated that the fair-minded observer “would know that a Defence Counsel’s actual performance during a case is determined by the overall strategy adopted in agreement with the client, but that the Defence Counsel is certainly not committed to uphold these views as his or her personal opinion”.⁹ He also stated that the same observer would know that the Judges, considering the mandate of the Tribunal to hear cases related to the same conflict, will often know of evidence which relate to the same facts which, as “highly qualified professional Judges, will not affect their impartiality”.¹⁰

Judge Liu could not find that “the hypothetical fair-minded observer with sufficient knowledge of the circumstances could or indeed would sustain any reasonable apprehension of bias or prejudice on the part of Judge Orie based on his association to a previous case in which he acted as Co-counsel for a person who is now to be called as a witness in the present case”.¹¹ Furthermore he found that, after a thorough review of the Application, there was “no ground for challenging the fact that Judge Orie is fully capable of applying his mind to the merits of this case in a completely unprejudiced and impartial manner”.¹²

Impartiality and adjudicated facts

Judge Liu, while noting that this question was premature since the Trial Chamber had not yet taken any position on judicial notice of adjudicated facts in the present case¹³, added that many of the facts adjudicated in the Tadic Judgement and identified for judicial notice are of “a purely descriptive nature without any bearing on or implication of the guilt of the Accused, such as the geographical location of camps or the physical destruction of a number of buildings dedicated to religious purposes”.¹⁴ On a more general level he noted that “the Judges are frequently, and increasingly so as the trials devolve, faced with parts of the ever growing body of adjudicated facts before this Tribunal” and stated that “this is exactly the background for the provision in Rule 94(B)¹⁵ and there is no ground for turning this development into an argument for disqualification of Judges”.¹⁶

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1. Rule 15 (Disqualification of Judges) (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. (B) 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. (…)
2. Application of 14 January 2003 to the Presiding Judge Pursuant to Rule 15(B) for the Withdrawal of a Judge (hereinafter the “Application”).
3. Para. 8.
4. Ibid.
5. Para. 11.
6. See Kordic & Cerkez, IT-95-14, Bureau, Order on Accused’s Application Requesting Disqualification of Judges Jorda and Riad, 4 May 1998, whereby the Bureau stated that “the Tribunal is guided by the principle that the requirement of impartiality prohibits not only actual bias or prejudice, but also the appearance of partiality. Thus, where the circumstances create a reasonable or legitimate suspicion of prejudice, there may be a basis for disqualification though no actual bias or prejudice exists”. See also, following this approach, Brdjanin & Talic, IT-99-36-PT, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge (hereinafter Judge Hunt’s pre-trial Decision), 18 May 2000, para. 8, Judicial Supplement No. 15: “Rule 15(A) was intended to reflect the wider basis for disqualification uniformly recognised in both the common law and civil law systems and under the European Convention on Human Rights where [...]a judge is disqualified not only if there is an actual bias but also if there is a reasonable apprehension by the parties that such bias exists”.
7. See Judge Hunt’s pre-trial Decision, para. 10: “What is to be considered is not the actual reaction of the particular complainant but the hypothetical reaction of the fair-minded observer with sufficient knowledge of the actual circumstances to make a reasonable judgement”.
8. Para. 14. The test applied in Furundzija, IT-95-17/1-A, Judgement (hereinafter “Furundzija Appeal Judgement”), 21 July 2000, para. 19, Judicial Supplement No. 18, is as follows: “Having consulted this jurisprudence, the Appeals Chamber finds that there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:
A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:
i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge's decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge's disqualification from the case is automatic; or
ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”
9. Para. 15.
10. Ibid. In fact the Judges are presumed to be impartial. In its Decision of 4 May 1998 in the Kordic et al. Case (IT-95-14/2-PT), the Bureau had already held that a Judge is “presumed to be impartial” (p. 2). In the Furundzija Appeal Judgement, para. 196, the Appeals Chamber held that “there is a presumption of impartiality which attaches to a Judge.”
11. Para. 16.
12. Para. 18. Pursuant to his obligation under Rule 15, Judge Liu discussed the Application with Judge Orie but did not find it necessary to refer the matter to the Bureau.
13. On 7 November 2002, the Prosecution filed the “Prosecution’s Motion for Judicial Notice of Adjudicated Facts”.
14. Para. 17.
15. Rule 94 (Judicial Notice) (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.
16. Para. 17.