_______________________________________________

THE BUREAU of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the territory of the Former Yugoslavia since 1991, comprising President McDonald, Vice-President Shahabuddeen, Judge Cassese, Presiding Judge of Trial Chamber II, and Judge Jorda, Presiding Judge of Trial Chamber I,

DECIDES as follows:

On 25 May 1998, the Trial Chamber in the matter of the Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo (IT-96-21-T, hereinafter referred to as ‘the Celebici case’) received a motion from all four of the accused entitled "Motion on Judicial Independence" (‘the motion’). The Prosecutor filed no response.

In the motion, the applicants request that Judge Odio Benito cease to take any further part in the proceedings of the Celebici case on two grounds, set out by the applicants as follows:

1. "That on the 8^th. Day of May 1998 the Learned Judge, Her Honour Judge Odio Benito, ceased to meet the qualifications for a Judge of the International Criminal Tribunal for the Former Yugoslavia by virtue of her having taken the oath of office of a Vice-President of the Republic of Costa Rica in accordance with Articles 136 and 137 of the Constitucion Politica de la Republica de Costa Rica 1949 (as amended).
2. Further and/or in the alternative, that the Learned Judge, having now become a member of the executive branch of the Government of the Republic of Costa Rica, has ceased to possess the criteria required for independent judge in international law and has acquired an association which may affect her impartiality."

1. The Facts

On 17 September 1993, Judge Odio Benito was elected as a Judge of this Tribunal. She took up office in November 1993 and her term was due to end in November 1997. Judge Odio Benito, Presiding Judge Karibi-Whyte and Judge Jan (making up the entire Trial Chamber in the Celebici case) were not re-elected.

This raised the problem that, with effect from 17 November 1997, the three Judges sitting on the Celebici case would cease to be Judges of the Tribunal and therefore could not continue to hear the case to its conclusion.

On 27 August 1997, the Security Council dealt with that situation by passing Resolution 1126 (1997), by which it -

On 1 February 1998, Judge Odio Benito was elected as one of two Vice-Presidents of the Republic of Costa Rica, and on 8 May 1998 she took the oath of office as Second Vice-President.

Before seeking the nomination for Second Vice-President of Costa Rica, Judge Odio Benito explained, in writing, her intentions to the then President of the Tribunal, Judge Antonio Cassese, and sought his approval. Her letter was submitted to the Judges of the Tribunal, meeting in Plenary. In this letter, Judge Odio Benito stated that, if elected, she would not assume any of the functions of that office until the completion of her duties as a member of the Trial Chamber hearing the Celebici case. It was unanimously decided by the Plenary that, based on this commitment by Judge Odio Benito, such action would not be incompatible with her duties as a Judge of this Tribunal. After she was elected, Judge Odio Benito again informed Judge Cassese, in writing. This letter was likewise submitted to the Plenary, which granted approval for her to take the oath of office.

The President of Costa Rica also wrote to the Tribunal confirming that Judge Odio Benito would continue to discharge her functions as Judge of the Tribunal until the completion of the Celebici case² and that she would not be assuming any functions in the Costa Rican Government before 17 November 1998.³

2. The Law

Article 13(1) of the Statute of the Tribunal and Rule 15 of the Rules of Evidence and Procedure are the relevant provisions under which the motion is made. Article 13(1)⁴ reads as follows -

Sub-rule 15(A) and Sub-rule 15(B) of the Rules of Procedure and Evidence read as follows -

The Presiding Judge in the trial, Judge Karibi-Whyte, has conferred with Judge Odio Benito and has, pursuant to Sub-rule 15(B), referred the matter to the Bureau for determination.

II. Discussion

1. Qualification of Judges of the International Tribunal for the Former Yugoslavia

In the motion the applicants contend that Judge Odio Benito ceased to meet the qualifications necessary to be a Judge of this Tribunal.

Pursuant to Article 13(1) of the Statute, in addition to the possession of high moral character, impartiality and integrity, the only prerequisite for appointment as a Judge of the Tribunal is "qualification for appointment to the highest judicial office" of the country from which the Judge comes. Judge Odio Benito’s "high moral character" and "integrity" are not in question. In fact, the applicants state in their motion that they "in no way seek to suggest that the Learned Judge has done any act which might be construed as being impartial." It is assumed from the context of the motion that the applicants intended to say that Judge Odio Benito has not done any act which may be construed as being partial. What is being questioned is whether, having regard to the holding of the office of Second Vice-President of Costa Rica, the requirements of impartiality and possession of the qualifications for appointment to the highest judicial offices in Costa Rica are now being met.

Article 159 of the Constitution of Costa Rica, relating to judicial qualifications, provides as follows-

"To be a magistrate it is necessary to be:

1. A Costa Rican by birth, or by naturalization with residence in the country not less than ten years after naturalization. However, the President of the Supreme Court must be a Costa Rican by birth;
2. A citizen in the exercise of his rights;
3. A layman;
4. Over thirty-five years of age;
5. Holder of a lawyer’s degree issued or legally recognised in Costa Rica, and must have engaged in the profession for at least ten years, except in the case of judicial officials with not less than five years of judicial experience."

In the circumstances before the Bureau, it has not been shown that Judge Odio Benito has ceased to possess the qualifications required by Article 159 of the Constitution of Costa Rica.

The applicants rely on Article 161, which provides -

"The position of magistrate is incompatible with that of an official of the other supreme

powers."

This relates to the subject of incompatibility of functions, a question dealt with under the topic of judicial independence, discussed below.

2. Judicial Independence

In the motion, the applicants state -

In effect, the motion is grounded on a general principle relating to incompatibility of functions giving rise, in the particular circumstances, to an "appearance of partiality".

The question of impartiality has been dealt with by the European Court of Human Rights (‘the Court’).

Article 6(1) of the European Convention on Human Rights (‘ECHR’) provides that -

The ECHR organs have established a two-fold test for assessing the impartiality of a tribunal:

Under the objective component of this test, the court must assess relevant circumstances that may give rise to an "appearance" of partiality. If there is "legitimate reason to fear" a lack of impartiality

in a judge, he or she must withdraw from the case.⁷

The challenge to the Judge’s impartiality in this case is linked to the question of her independence as a judge. The test for measuring independence has been set forth thus by the Court in Campbell and Fell v. United Kingdom:

In Sramek v. Austria⁹ the Court was faced with a complaint regarding the "independence" of a tribunal composed of, among others, a person who was the mayor of a municipality. The mayor in fact acted as chairman of the Tribunal. Holding that there was no breach of Article 6(1) of the ECHR by reason of the fact that "the person who . . . acted as chairman of the [tribunal] happened to be a mayor"¹⁰, the Court held:

These cases, though deriving from different systems, are useful in showing that the mere fact that a person who exercises judicial functions is to some extent subject, in another capacity, to executive supervision, is not by itself enough to impair judicial independence.

The applicants contend that, although there is no explicit provision in the Statute of the Tribunal stating that judicial and political offices are incompatible, Article 13 of the Tribunal’s Statute and Rule 15 of its Rules of Procedure and Evidence, taken together, have the same effect as Article 16(1) of the Statute of the International Court of Justice, which provides that -

"No member of the Court may exercise any political or administrative function…"

The applicants also refer also to Article 7 of the Statute of the International Tribunal for the Law of the Sea which contains the same wording as the above, except that the word ‘Court’ is replaced with the word ‘Tribunal’.

The question, however, is not whether there is a prohibition against the exercise of any political or administrative function, but whether such a function is being exercised by Judge Odio Benito. In the circumstances of this case, she is not exercising any such function.

The applicants contend that the fact that Judge Odio Benito holds political office as a Vice-President of the Republic of Costa Rica is sufficient to create the appearance of lack of impartiality within the meaning of Rule 15(A) of the Tribunal’s Rules of Procedure and Evidence. They state that –

1. Costa Rica is a member of the General Assembly

On the basis of these matters, the applicants contend that Judge Odio Benito’s impartiality as a Judge of the Tribunal is affected, their argument being as follows -

In fact, Judge Odio Benito has been holding the position of Vice-President in name only from the date she took the oath of office. She has committed herself not to take up the duties of her post until she has completed her judicial duties. The contention that in the event of the President’s absence she may have to assume his role is not one of substance. Under the Constitution of the Republic of Costa Rica there are two other officials who can also undertake such a role - the first Vice-President and the President of the Legislative Assembly.¹³ She has undertaken not to assume the functions or duties of the President of Costa Rica in his temporary or permanent absence prior to the termination of her tenure as Judge. Furthermore, the President of the Republic of Costa Rica has agreed that she will not assume her duties as Second Vice-President until such time.

For these reasons, the Bureau concludes that Judge Odio Benito is not disqualified under Sub-rule 15(A) of the Rules of Procedure and Evidence from sitting on the trial of the applicants. The competence conferred on the Bureau under Sub-rule 15(B) of the said Rules does not extend to aspects of the applicants’ motion raising matters going beyond the scope of Sub-rule 15(A).

3. Disposition

The Bureau, having considered all the arguments and supporting material, decides, under Sub-rule 15(B) of the Rules of Procedure and Evidence of the Tribunal, that Judge Odio Benito is not disqualified to sit in the trial of the four accused on the grounds referred to in Sub-rule 15(A) of the Rules.

__________________________

Gabrielle Kirk McDonald

President

Dated this 4^th day of September 1998

At The Hague

The Netherlands

9 (1985) 7 EHRR 351.

12 IT-96-21-T 6515-6514.