More Problems with Assigning a New Judge to the Seselj Case

by Kevin Jon Heller

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).

http://opiniojuris.org/2013/11/01/problems-assigning-new-judge-seselj-case/

19 Responses

  1. This is BAD. I cannot recall any trials in the time of modern criminal tribunals to be that mismanaged.

  2. Dear Kevin, 
    Once again, it might help if you would actually read the VP’s order. He didn’t act (or say that he did) under Rule 15bis. Rather, he did so under Rule 15 (B)  – the one on disqualification. It’s clear that he would favor the application of Rule 15bis but in light of the Trial Chamber’s contrary opinion on that point, he relies on Rule 15 (B). Just read the order, p. 2: 
    CONSIDERING that, while in my view, the interests of fairness and transparency are indeed better protected by application of the regime envisaged in Rule 15bis of the Rules, and that this Rule may correctly be applied mutatis mutandis, it is ultimately for the Judges seised of the present case to determine whether or not the trial shall proceed; 
    CONSIDERING therefore that, in these circumstances, there is no point in further delaying the assignment of another Judge under Rule 15(B)(ii) of the Rules;
    So no application of Rule 15bis here by the VP, hence he did not disregard this Rule’s requirement. 
    The text of Rule 15(B) is the following: “Following the report of the Presiding Judge, the President shall, if necessary, appoint a panel of three Judges drawn from other Chambers to report to him its decision on the merits of the application. If the decision is to uphold the application, the President shall assign another Judge to sit in the place of the Judge in question.”
    Applying this Rule and not 15bis (the application of which is questionable in this case — I agree), it is now up to the TC to determine what do do.
    Another issue no one has raised is that Judge Niang was only recently appointed to the ICTR Appeals Chamber. By virtue of that he is also now an ICTY Judge who can be temporarily assigned to an ICTY trial chamber. Not sure though how that sits with the request for him (he replaced Judge Vaz) which was founded on the need for another Judge in the AC due to its heavy workload… 

  3. Kevin, the tone of your post is offensive.  Judge Agius is one of the finest jurists in the ICTY’s history, and is known for being acutely aware of upholding the accused’s rights. This reflects that his entire career was spent as a defence lawyer, which all lawyers who have actually practiced at the ICTY are aware of. Read the Popovic, Brdanin or Oric trial records if you need any proof of that.  He deserves much more respect from you, even if you disagree with his decision. 

  4. Fair enough — I have softened the tone and referred only to the “Acting President.” But I assess each decision on its merits, and this Order is one of the most problematic I can remember. Pulling punches because you respect a particular judge (and I have vociferously defended Judge Agius with regard to the specific-direction requirement) is no better than Judge Liu arguing that Judge Harhoff should not be disqualified because he’s been a good judge in the past.

  5. Dear Kevin, to assess a decision on its merits, it would be good to read it first. Your post shows you ahve not done so.
    Judge Agius is clearly NOT applying Rule 15bis, but Rule 15(B) – as he write explicitly. He is further expressing his opinion that part of the regime of Rule 15bis should apply mutatis mutandis.
    You should apologize and refrain from posting such rush rants in the future.
    In sum, the order paves the way for a Trial Chamber – composed under the existing provision for this kind of events (i.e., when the two remaining Judges do not believe the trial should continue) – to rule on whether to decide on a mistrial or to start a new trial. The latter is still a possibility because, notwithstanding what you say, most of the time Seselj was in detention thus far was because he had been convicted for various instances of contempt, and not on provisional release. Or the trial could be stopped, but Seselj’s detention would cotninue due to his several convictions for threatening witnesses and disclosing confidential information. Or the accused could be sent back to Serbia, where new proceedings could start for the same or different charges.

  6. Dear Kevin, 
    I agree with Bern. It might assist greatly if you would actually read the VP’s order. He didn’t act (or say that he did) under Rule 15bis. Rather, he did so under Rule 15 (B)  – the one on disqualification. It’s clear that he would favor the application of Rule 15bis but in light of the Trial Chamber’s contrary opinion on that point, he relies on Rule 15 (B). Just read the order, p. 2: 
    CONSIDERING that, while in my view, the interests of fairness and transparency are indeed better protected by application of the regime envisaged in Rule 15bis of the Rules, and that this Rule may correctly be applied mutatis mutandis, it is ultimately for the Judges seised of the present case to determine whether or not the trial shall proceed; 
    CONSIDERING therefore that, in these circumstances, there is no point in further delaying the assignment of another Judge under Rule 15(B)(ii) of the Rules;
    So no application of Rule 15bis here by the VP, hence he did not disregard this Rule’s requirement. 
    The text of Rule 15(B) is the following: “Following the report of the Presiding Judge, the President shall, if necessary, appoint a panel of three Judges drawn from other Chambers to report to him its decision on the merits of the application. If the decision is to uphold the application, the President shall assign another Judge to sit in the place of the Judge in question.”
    Applying this Rule and not 15bis (the application of which is questionable in this case — I agree), it is now up to the TC to determine what do do.
    Another issue no one has raised is that Judge Niang was only recently appointed to the ICTR Appeals Chamber. By virtue of that he is also now an ICTY Judge who can be temporarily assigned to an ICTY trial chamber. Not sure though how that sits with the request for him (he replaced Judge Vaz) which was founded on the need for another Judge in the AC due to its heavy workload… 

  7. Alas, both of the previous comments are mistaken. Although inartfully worded, the Order makes clear that the decision to appoint Judge Niang is based on both Art. 15bis and Art. 15(B). (See particularly the “Recalling” paragraph.) Art. 15(B) does not require the judges in a case to determine whether a trial shall proceed or to consult with the accused; it simply replaces the disqualified judge and permits the trial to continue. Whether a trial shall proceed after opening arguments in the absence of a judge is governed by Art. 15bis(D) — and only by Art. 15bis(D). The Acting President thus could not have ordered what he did by relying solely on Art. 15(B).

    This reading of what the Acting President has done is supported, of course, by Judge Antonetti’s internal memorandum, in which he argued that the Acting President should not have invoked Art. 15bis(D), but should have relied on Art. 15(B) alone. I suppose, then, that the Acting President deserves some credit for not simply appointing Judge Niang and instructing the bench in Seselj to finish the judgment — Judge Antonetti’s preferred solution. But there is still no justification for (1) applying Art. 15bis to a case that is not “part heard” and (2) not complying with any of the procedural requirements in Art. 15bis(D).

  8. Kevin, please. The order is SOLELY based on Rule 15 (not on Rule 15bis). It states so explicitly: “PURSUANT to Rules 15, 19 and 21 of the Rules;” — I don’t see any reference to Rule 15bis. It’s clear that the VP believes that Rule 15bis would be the better approach and that the TC should afford the rights given to the accused under Rule 15bis also in this case but this is clearly an obiter view (“EMPHASISING however that, in my view, the Judges seised of the present case should consult with the Accused on the question of whether to rehear the case or to continue the proceedings with the newly assigned Judge;”). So there is nothing “inartfully worded”. The order simply does not say what you say it does. Again, it would help in the future if you maybe took a deep breath before publishing an aggressive post that is not grounded in reality. I agree with you that there are many troubling issues with regard to this case but this is no reason to become sloppy. 

  9. A question for Bern and CR: do you believe that the Acting President has now ordered the Seselj bench to complete the trial judgment with Judge Niang? That must be your position, if you believe the Acting President’s Order is based solely on Art. 15(B). Any other position — particularly one that gives the bench the discretion to start the trial over — requires reliance on Art. 15bis(D), as well.

  10. Note also: your position means that, in the “Emphasizing” paragraph, the Acting President is simply suggesting the Seselj bench consider re-starting the trial — not requiring it to. Which means that, in your view, the Acting President believes the Seselj bench is free to ignore the very rule — 15(B) — that you believe his Order is exclusively based on. Please explain to me how that interpretation of the Order makes sense.

  11. In my view, it is not up to the VP to determine whether the trial continues or not. He is simply acting in an administrative matter, appointing a Judge to bring the TC again to its three-judge composition. This in line with the functions of the President (or VP in this case) — he cannot order the Chambers to do anything but only makes it possible for the Chamber to decide. 
    I also believe (and I think we agree on that) that Rule 15bis (C) is not explicitly applicable in a case where a judge is replaced under Rule 15. In my view that is a gap in the Rules. So the question for the Trial Chamber (now in the new composition) is whether to continue the trial or whether to discontinue proceedings (with the option of having a re-trial). Of course, the TC can only decide this after hearing from the Prosecutor/Seselj. Either decision of the TC would then go up on appeal (I can’t imagine that certification would be denied on something fundamental). And voila, in effect, we would have a similar outcome like under Rule 15bis. (This seems to be what the VP has in mind, judging from the “emphasizing” paragraph) Now, whether the TC should continue the trial or not is a completely different question. But this is up to the Trial Chamber and in any event not the VP. 

  12. Unfortunately, there is no gap in the rules. Either Rule 15(B) applies, in which case the disqualified judge is replaced and the trial continues, or Rule 15bis(D) applies, in which case the replacement judge is appointed after the decision is made whether to continue the proceedings or re-start the trial. There is no other alternative — which is precisely the basis of Judge Antonetti’s earlier complaint. We may not like the rules as they are written, but they are there and have to be respected. If the judges agree with us, they should change the rules.

    It is also important to note that, as much as I like it, your argument is foreclosed by the plain language of Rule 15bis(D). The rule specifies that the President cannot appoint a judge to a partial bench until after the decision to continue or re-start the trial is made by the remaining judges. Your position has the judge appointed by the President participate in the decision whether to continue or restart the trial. If the Acting President believes that there is any possibility of Seselj’s trial starting over, he had to comply with the requirements of Rule 15bis(D) — which he did not.

  13. CR,

    There is, of course, a real gap in the rules: the absence of a provision that would allow the Tribunal to simply end the case and let Seselj go. That is the only fair solution, given that Seselj is in no way responsible for Judge Harhoff forcing the Tribunal to disqualify him. The fact that the Acting President’s Order does not even contemplate the possibility of termination and release is deeply troubling.

  14. I don’t quite understand your point. Why would the trial necessarily continue under the appointment now made under R15? Again, the appointment is merely an administrative matter. The trial chamber is now fully composed. It can now decide on all motions, including one to stop the proceedings. Then it would make a decision etc as outlined in the other post. Under R15bis, which does not explicitly apply to the situation at hand (otherwise there would be a reference to it in Rule 15(C)), a similar process is put in place in the Rules, but under a different scenario (a Judge unable to sit, which could be illness, election to office in another country, failure to being reelected etc). So Rule 15bis does not apply to the disqualification of a judge under Rule 15(C). That’s why in my view, it seems that when Rule 15bis was introduced, no attention was paid to the tension with Rule 15(C) but that when the Trial Chamber now decides on whether to continue or not, it should take into account the spirit of Rule 15bis, i.e. the “interests of justice”. 

  15. There are two rules that deal with different variations of the same situation: where a judge cannot continue to participate in a trial. One governs disqualification; the other governs all other reasons. The disqualification rule does not provide for re-starting the trial; the any-other-reason rule does. So how can we say that although only one of the two rules explicitly permits re-starting a trial, both of the rules allow for it — especially as the any-other-reason rule was added to the RPE after the disqualification rule? If the judges had wanted to permit re-starting a trial after disqualification, surely they would have amended the original rule to that effect.

    Note also, though it is not dispositive, that Judge Antonetti clearly does not believe Rule 15(B) permits re-starting a trial after disqualification. That is precisely why he does not like the Acting President’s hybridization of Rule 15(B) and Rule 15bis(D).

  16. There is another aspect of Judge Antonetti’s internal memorandum that is worth considering. In his view, Rule 15(B) does not even permit a judge to be disqualified after trial begins:

    The consequences of the decision of the panel are enormous and the Rules of Procedure and Evidence do not provide for a case where a motion for disqualification can be made during deliberations.

    That is a sound position, because there is a critical difference between the language of Art. 15(B) and Art. 15bis(C): the former says that a judge “may not sit on a trial” in which his impartiality can be questioned, while the latter refers to a situation in which a judge “is, for any reason, unable to continue sitting in a part-heard case.” The different language suggests that Art. 15(B) exclusively applies before trial, while Art. 15bis(C) and (D) exclusively apply after trial has begun. That interpretation is supported, in turn, by the 2006 amendment to Art. 15bis(C) and (D), which replaced “by reason of death, illness, resignation from the Tribunal, or non-reelection” with “for any reason” — thereby including disqualification within the ambit of Art. 15bis. And it would also explain why Art. 15(B) does not permit re-trial, unlike Art. 15bis(D): because it applies only before trial has begun.

  17. CR,

    Where does it say an ICTR Appeals Chamber judge can serve in an ICTY Trial Chamber? That’s really interesting, and I’ve never heard it before.

  18. Kevin, as for Rules 15bis / 15 — I guess we have to disagree on this point but it will be interesting how this plays out. In the end, the Appeals Chamber will have to address these matters. 
    As for Judge Niang: by virtue of the ICTR and ICTY Statutes (Articles 12 and 13), Judge Niang has become a Judge of both the ICTR and the ICTY because as a Judge of the ICTR AC he is in personal union also a Judge of the ICTY Appeals Chamber. Since he is now also an ICTY judge, the President can temporarily assign him to an ICTY Trial Chamber, see Rule 27(C) of the ICTY RPE. 

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