Case: IT-03-67-PT
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:
10 June 2003
PROSECUTOR
v.
Vojislav SESELJ
________________________________
DECISION ON MOTION FOR DISQUALIFICATION
________________________________
The Applicant:
Vojislav Seselj
Counsel for the Prosecution:
Hildegard Uertz-Retzlaff
Daniel Saxon
- On 21 May 2003, Vojislav Seselj (“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 Because one of the Judges Seselj
seeks to have disqualified, Judge Schomburg, is the Presiding Judge of the
Chamber , the matter has been referred to the Bureau.2
For the reasons given below, the Bureau denies the application.
- The only bases for the Applicant’s claim are Judge Schomburg’s nationality
and Judge Mumba’s and Judge Agius’s religion. The Applicant is a Serb and
an Orthodox Christian. He claims that, because of a long history of conflict
between Germans and Serbs, Judge Schomburg’s German nationality prevents him
from being impartial . He also asserts Judge Schomburg’s nationality undermines
his impartiality because Germany is a member of the North Atlantic Treaty
Alliance (“NATO”). Finally, he contends that Judge Agius and Judge Mumba are
Catholic and that, because of a long history of conflict between the Serbian
Orthodox Church and the Catholic Church, those Judges could not hear his case
impartially.
- The nationalities and religions of Judges of this Tribunal are, and must
be , irrelevant to their ability to hear the cases before them impartially.
The Statute of the Tribunal requires Judges to be “persons of high moral character,
impartiality and integrity.” Before taking up their duties, each Judge must
make a solemn declaration committing himself or herself to performing those
duties “honourably, faithfully, impartially and conscientiously.” Judges in
every domestic system of justice need to put aside any identification with
a particular group based on religion, ethnicity, gender or other traits, characteristics,
or grounds. Similarly, they must put aside any of these bases of identification
in relation to any accused who appear before them. Their ability to do so,
and to consider nothing but the evidence presented to them in deciding on
an individual’s guilt, constitute a touchstone of their role as judges. So
it is at this International Tribunal.
- Similar considerations demonstrate the groundlessness of the Applicant’s
assertion that a citizen of a NATO country cannot judge him impartially. The
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 . Judges of this International Tribunal serve only the international
community. In taking their solemn declaration to perform their duties “honourably,
faithfully , impartially and conscientiously,” they necessarily disavow any
influence by the policies of any government, including the government of their
home country.
- This Application calls for one further comment from the Bureau. The Application
contains several phrases or statements that are abusive and insulting. Parties
appearing before the Tribunal have great latitude in phrasing their pleadings.
But that latitude is not boundless. Insults are not arguments, and insults
based on group identities, such as nationality, religion, and ethnicity, are
particularly offensive. The Bureau has previously held that Rule 46(C) of
the Rules applies in proceedings before the Bureau.3
That Rule authorizes the imposition of sanctions on a counsel who brings a
motion that is “frivolous or an abuse of process.” When, as in this case,
a defendant chooses to represent himself, the power given in the Rule may
be exercised against the defendant himself. Motions containing abusive and
insulting language of the sort included in the present Application are indeed
“frivolous or an abuse of process,” and the Bureau wishes to underline that
the present Application is manifestly frivolous and an abuse of process. In
this case, the particular sanction mentioned in Rule 46(C) cannot be applied
because the Applicant is not represented by counsel . It should be noted,
however, that one sanction the Bureau may apply to such filings is to direct
the Registrar to deny filing. The applicant would then be required to file
a new application without the offensive language. If the applicant were to
persist, the Bureau might bar the filing of the application altogether. The
Trial Chambers may well apply similar principles, and the Applicant should
be aware of these principles in drafting pleadings in the future.
- The Application is denied as frivolous and an abuse of process.
Done in English and French, the English text being authoritative.
___________________________
Theodor Meron
President
Dated this 10th day of June,
At the Hague,
The Netherlands.
[Seal of the Tribunal]
1- The Prosecution has waived its right
to respond.
2 - Rule 15(B) provides: “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.” (emphasis added). For an example of
an application directed against a Presiding Judge and referred to the Bureau,
see Prosecutor v. Kordic and Cerkez, IT-95-14/2-PT, Decision of the Bureau,
4 May 1998. Judge Schomburg, as the Presiding Judge of Trial Chamber II, normally
sits as a member of the Bureau. See Rule 23(A). Because the application under
review is directed against him, the Bureau decided, pursuant to Rule23(E), to
replace Judge Schomburg with Judge Jorda for the consideration of the application.
Rule 23(E) provides that “[i]f any member of the Bureau is unable to carry out
any of the functions of the Bureau, these shall be assumed by the senior available
Judge determined in accordance with Rule 17.” Judge Jorda is the senior available
judge.
3 - Prosecutor v. Vidoje Blagojevic et al., IT-02-60-T, Decision on Blagojevic’s
Motion for Clarification, 27 March 2003, para. 1.