Case: IT-02-60

IN THE BUREAU

Before:
Judge Theodor Meron, President

Judge Fausto Pocar, Vice-President
Judge Richard May
Judge Daqun Liu
Judge Claude Jorda

Registrar:
Mr Hans Holthuis

Decision of:
27 March 2003

PROSECUTOR

v.

Vidoje BLAGOJEVIC
Dragan OBRENOVIC
Dragan JOKIC
Momir NIKOLIC

___________________________________

DECISION ON BLAGOJEVICíS MOTION FOR CLARIFICATION

___________________________________

Counsel for the Applicant:

Mr. Michael Karnavas

Counsel for the Prosecutor:

Mr. Peter McCloskey

  1. Vidoje Blagojevic has filed a motion seeking ďclarificationĒ of the Bureauís decision denying his motion to disqualify Judges Schomburg, Agius, and Mumba from hearing his case.1 The Bureau wishes to emphasize at the outset that it considers it unnecessary to respond to the clarification motion, which largely seeks to revive claims already rejected in the Bureauís denial of Blagojevicís disqualification motion. Because the Prosecution joins Blagojevic in seeking clarification of certain points, the Bureau will, in this case, exercise its discretion to offer the following remarks. But the parties should be aware that, in the Bureauís view, the provisions of Rule 46(C) of the Rules apply to proceedings before the Bureau. The Bureau has chosen not to impose the sanctions authorized there on counsel for Blagojevic based on the filing of the motion for clarification . But it seriously considered doing so.

  2. Blagojevic claims that the Bureau failed to take sufficient account of the arguments and ďevidenceĒ presented in his reply to the Prosecutionís response to his original disqualification motion.2 As the Prosecution notes,3 the Bureauís obligation to give a reasoned opinion does not entail an obligation to make express reference to every argument or piece of evidence mentioned by the parties. Having again reviewed Blagojevicís earlier reply,4 the Bureau finds that virtually all of it simply repeats points that were canvassed in the original motion and the Prosecutionís response. The only argument of any significance mentioned in the reply that was not discussed in the earlier filings is the contention that the contrast between the Trial Chamberís handling of a guarantee given by the Federation of Bosnia and Herzegovina in another case and its handling of the guarantee given by Republika Srpska in this case demonstrates the Trial Chamberís anti-Serb bias. If this additional piece of evidence of bias had been taken into account, Blagojevic argues, the Bureau would have found that the challenged Judges were biased or suffered from an improper appearance of bias. 5 The Bureau will now make express the basis for its rejection of Blagojevicís comparative claim. First, the text of the decision Blagojevic identifies as a basis of comparison suggests that, whether rightly or wrongly, the Trial Chamber may well have understood itself to have been acting on a guarantee not of the Federation of Bosnia and Herzegovina but of the State of Bosnia-Herzegovina.6 Second, even if Blagojevic is correct that the Trial Chamber understood itself to have been relying on a guarantee from the Federation, the record of the Federationís cooperation with the Tribunal is quite different from the record of Republika Srpskaís cooperation. That difference in actual practice, not some alleged anti-Serb bias , suffices to explain any difference in treatment accorded by the Trial Chamber to the guarantees of the Federation of Bosnia and Herzegovina, on the one hand, and those of Republika Srpska, on the other.

  3. Blagojevic seeks to know whether the President or the members of the Bureau conferred with the challenged Judges once the matter was referred to the Bureau. He suggests that such consultations are required by Rule 15(B) of the Rules of Procedure and Evidence (ďRulesĒ) and that their occurrence would be part of a record necessary for possible further appeal.7 The Bureau finds that the plain terms of Rule 15 of the Rules indicate that such consultations are not required.

  4. Blagojevic seeks to know whether the Bureauís decision denying his original motion is subject to appeal pursuant to Rule 73 of the Rules.8 The Prosecution supports this aspect of Blagojevicís motion.9 The Bureau will make two comments on this matter. First, the Bureau finds no provision in either the Statute or the Rules for appeals from decisions of the Bureau to the Appeals Chamber. Neither Rule 15 of the Rules, pursuant to which Blagojevicís motion was filed, nor Rule 73 of the Rules supplies a basis for such appeals. Second, because, in the Bureauís view, Rule 73ís provisions for interlocutory appeal do not apply to its disqualification decisions, were Blagojevic to attempt, pursuant to Rule 73 of the Rules, to seek certification to appeal, the Bureau would not provide such certification.

  5. The Prosecution, in its response, also seeks clarification whether, even when the Bureau has decided a disqualification motion pursuant to Rule 15(B) of the Rules , the party may not bring the same motion before the Trial Chamber as a motion pursuant to Rule 73 of the Rules.10 The Bureau is not competent to resolve the matter. It is up to the Trial Chamber to which such a motion is directed to answer the question in the first instance and, if the answer is in the negative and the issue is certified for interlocutory appeal, the Appeals Chamber to resolve it.

Done in English and French, the French text being authoritative.

_____________________
Theodor Meron,
President

Done this 27th day of March, 2003
At the Hague,
The Netherlands.

[Seal of the Tribunal]


1 - Vidoje Blagojevicís Expedited Motion for Clarification of the Bureauís Decision on Blagojevicís Application to Disqualify the Trial Chamber Pursuant to Rule 15(B) Motion, IT-02-60-PT, 21 March 2003 (ďMotion for ClarificationĒ); Decision on Blagojevicís Application Pursuant to Rule 15(B), IT-02-60, 19 March 2003.
2 - Motion for Clarification, preamble, paras. 8-13, esp. para. 12.
3 - Prosecutionís Response to Vidoje Blagojevicís Expedited Motion for Clarification, IT-02-60, 26 March 2003 (ďProsecutionís ResponseĒ).
4 - Vidoje Blagojevicís Reply to Prosecutionís Response to Vidoje Blagojevicís Motion to Disqualify the Trial Chamber, IT-60-02-PT, 17 March 2003.
5 - Id., at paras. 11-13.
6 - The Prosecutor v. Hadzihasanovic, Alagic and Kubura, IT-01-47-PT, Decision Granting Provisional Release to Amir Kubura, 19 Dec. 2001.
7 - Motion for Clarification, paras. 9-10.
8 - Id., at para. 11.
9 - Prosecutionís Response, para. 9; see also Vidoje Blagojevicís Reply to Prosecutionís Response to Vidoje Blagojevicís Expedited Motion for Clarification, IT-02-60-PT, paras. 4-5.
10 - Id., at para. 10.