Briefly Noted

Decision To Disqualify Seselj Judge Upheld

Appeal followed August decision by panel of judges following controversial letter Judge Fredrik Harhoff.
  • Judge Frederik Harhoff. (Photo: ICTY)

A panel of judges at the Hague tribunal has upheld a decision to disqualify a Danish judge from the long running case against Serbian nationalist politician Vojislav Seselj.

Judge Fredrik Harhoff was disqualified in late August after the majority of a specially-appointed panel of his peers found that an email he sent in June to numerous personal contacts “demonstrated bias”. (For more on the disqualification and its implications, see Uncertainty Over Seselj Case After Judge's Removal  .)

In the email, Judge Harhoff criticises the controversial acquittals of Croatian general Ante Gotovina and his co-accused Mladen Markac, former Yugoslav army chief Momcilo Perisic, and Serbian intelligence officials Jovica Stanisic and Franko Simatovic.

The letter, sent to 56 contacts, also alleges that the Hague tribunal’s president, American judge Theodor Meron, applied “tenacious pressure” to colleagues in a way that “makes you think he was determined to achieve an acquittal” for Gotovina and Perisic.

“The latest judgements here have brought me before a deep professional and moral dilemma not previously faced,” the email said. “The worst of it is the suspicion that some of my colleagues have been behind a short-sighted political pressure that completely changes the premises of my work in my service to wisdom and the law.”

In September, Judge Harhoff asked the panel to reconsider their decision because it had failed to take into consideration his own memorandum on the matter and also a report written by Judge Jean-Claude Antonetti, the presiding judge in the Seselj case.

In his memorandum, Judge Harhoff claimed that he does “not have, or have ever had, any personal interest whatsoever in the trial against the accused [Seselj] and I have not had any association with him or anyone else that might affect my impartiality in the case.

“I therefore do not believe that my email contains any element that might cast doubts about my impartiality in this trial,” he wrote. (For more, see Judge Queries Disqualification From Seselj Case.)

The prosecution, too, had asked the panel to reconsider the disqualification, arguing that the majority of the panel “failed to apply the correct standard for impartiality”.

In their October 7 decision, a majority of the three-judge panel found that Judge Harhoff and the two other Seselj judges did not have “standing to seek clarification of the decision”.

Responding to the argument that Judge Harhoff’s memorandum and Judge Antonetti’s report should have been considered, the majority said that the rules of the tribunal “only provide” that the president – or in this case, Vice-President Carmel Agius – “receive and consider a report prepared by the presiding judge of a chamber prior to deciding whether or not to appoint a panel to consider the merits of a motion for disqualification”.

Furthermore, the majority of the panel said that there is not any “established practice of taking into consideration the report of a presiding judge, or the comments of the judge who is the subject of a motion for disqualification” when deliberating on that issue.

Therefore, the panel “considers that it was not bound to consider the report”.

In response to the prosecution motion, the majority said it “did not, as contended by the prosecution, presume partiality on the part of Judge Harhoff. Rather, it applied the presumption of impartiality and concluded that the contents of the letter were both reliable and sufficient to rebut that presumption.”

As he did with the original decision to disqualify, Judge Liu Daqun attached a separate dissenting opinion.

“I find that the cursory approach undertaken by the majority in its analysis and discussion of the letter warrant reconsideration of the impugned decision in order to avoid injustice,” Judge Liu wrote.

It is now up to Vice-President Judge Agius to decide how to proceed. He had initially stated on September 3 that he would not assign a new judge to the Seselj chamber until the remaining judges conferred with the accused on whether to “rehear the case or continue the proceedings”.

However, a day later, Judge Agius put everything on hold in light of the submissions by Judge Harhoff, Judge Antonetti, and the motion by the prosecution to reconsider the disqualification.

The date for the Seselj judgement, originally scheduled for October 30, was cancelled on September 17.

Rachel Irwin is IWPR’s Senior Reporter in The Hague.

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Appeal followed August decision by panel of judges following controversial letter Judge Fredrik Harhoff.
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