More Problems with Assigning a New Judge to the Seselj Case

The most significant problem with the Order, of course, is the one I identified in my previous post: namely, that Rule 15bis applies only to “part heard” cases — not cases that have been over for nearly two years. But it’s worth noting that the Acting President has also disregarded a number of procedural requirements of Rule 15bis. Recall the text of the relevant provisions:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of all the accused, except as provided for in paragraphs (D) and (G).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an accused withholds his consent, the remaining Judges may nonetheless decide whether or not to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken from the decision to continue proceedings with a substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Rule 15bis(D) makes clear that the President cannot assign a new judge to an existing bench unless four requirements are satisfied: (1) the accused has been asked to consent to the proceedings continuing; (2) the remaining judges have unanimously decided, over the accused’s objection, that continuing the proceedings is in the interests of justice; (3) the accused and the prosecution have been given the opportunity to appeal; and (4) the replacement judge has certified that he or she is familiar with the record in the case.

The Acting President has ignored all four requirements. First, and most importantly, Seselj has not been asked to consent to the trial continuing, and the remaining members of the bench (Judges Antonetti and Lattanzi) have not unanimously decided to continue the trial. Indeed, neither requirement has been satisfied for an illuminating reason: because Judges Antonetti and Lattanzi disagree with the Acting President’s interpretation of Rule 15bis. The Acting President openly admits as much in the Order (p. 1) — as he must in light of what Judge Antonetti wrote in an internal memorandum that the ICTY made public in early September (emphasis mine):

The Rules of Procedure and Evidence provide that, should the opinion of the panel be in favour of disqualification, the President must appoint a Judge. However, it appears from the recent decision of the Vice-President that a “mixture” has been made of Rule 15 on disqualification and Rule 15
bis on the absence of a Judge. In my opinion, we cannot play around with the provisions of Rule 15 bis which concern an entirely different situation, in particular that relating to the consent of the accused; if necessary, it would be the work of the new Chamber with a new Judge to rule on such a motion, but this cannot be ordered by the President of the Tribunal.

Similarly, as we are in the final stages of proceedings, the question arises as to whether a restart of  the trial would not cause enormous prejudice to the Accused Vojislav Šešelj. On the day that my report was written, he had been 3,787 days in provisional detention and, in case of retrial with a new composition of the Chamber, he would still remain in detention for several more years.

Admittedly, the Accused has the right to use all means to defend himself, but these means should not be allowed to turn against him. In this case, his motion is obviously counter-productive.

I disagree with Judge Antonetti that his solution is better than the Acting President’s — as I noted in my previous post, permitting a new judge to help write the judgment in a case he did not hear is fundamentally inconsistent with the concept of a fair trial. Regardless, Judge Antonetti’s internal memorandum makes clear that the Acting President is simply ignoring two key procedural requirements of Rule 15bis(D).

He is disregarding the other two requirements, as well. Neither Seselj nor the OTP have been given an opportunity to appeal a decision to continue the proceedings — which is not surprising, because the remaining judges in Seselj have not decided to continue them. Moreover, nothing in the Order indicates that Judge Niang has certified that he has familiarised himself with Seselj’s case. Indeed, it is very unlikely that he has, given that Seselj’s trial has been going on for six years and Judge Harhoff was only finally disqualified a few weeks ago.

The Acting President has, in short, not only ignored the non-applicability of Rule 15bis to Seselj’s case, he has also disregarded all four procedural requirements in Rule 15bis(D) by appointing Judge Niang to replace Judge Harhoff. Why does he thinks that’s fine? His answer (p. 2) is instructive: “in these circumstances, there is no point in further delaying the assignment of another judge.”

No point other than the text of every sentence in Rule 15bis(D).