Assignment of counsel

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

127. The Appeals Chamber would begin by noting that Rule 45 quater of the Rules expressly states that a “Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”. However, this rule was introduced by an amendment of 6 July 2002 and was therefore not applicable to the situation of Appellant Barayagwiza before this date. Nevertheless, the Appeals Chamber finds that Article 19(1) of the Statute already at that time allowed a Trial Chamber to instruct the Registry to assign a counsel to represent the interests of the accused, even against his will, when the accused had waived his right to be present and participate at the hearings. […]In the instant case, it was open to the Trial Chamber to fulfil this obligation by requesting the Registrar to assign counsel to represent the interests of Appellant Barayagwiza.[1] The Appeals Chamber can find no error or abuse of power on the part of the Trial Chamber.  

[1] This is, moreover, the solution subsequently adopted with the introduction of Rule 82 bis of the Rules. 

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Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

41. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review.[1] Nonetheless, counsel may be assigned at the preliminary examination stage, normally for a very limited duration, if it is necessary to ensure the fairness of the proceedings.[2] Mr. Rutaganda has already made extensive and detailed submissions supported by a number of exhibits in his Request for Review. The Appeals Chamber is not satisfied that additional briefing would be of assistance in the present inquiry. In such circumstances, Mr. Rutaganda’s Request for Review does not warrant the assignment of counsel under the auspices of the Tribunal’s legal aid system.

42. Nonetheless, as a general matter, Mr. Rutaganda may be assisted by counsel in connection with a request for review at his own expense or on a pro bono basis provided the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal. The Registry informed Mr. Rutaganda of this in its letter dated 21 October 2004, explaining that his former counsel could contact him.[3] Thereafter, Mr. Rutaganda filed a notice to the Deputy Registrar indicating that he had retained his former counsel to assist him.[4] Even putting aside that Rule 44(A) of the Rules refers to the counsel filing a power of attorney, Mr. Rutaganda has not pointed to any instance after that point where he was denied access to his counsel.[5] The Appeals Chamber further observes that, in his request, he refers to the pro bono assistance which he received from his former counsel during this period.[6] Accordingly, the Appeals Chamber declines to consider further Mr. Rutaganda’s alleged violations of his right to communicate with counsel. In any event, as a general rule, such matters should first and foremost be addressed by the Registrar.[7]

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. 96-14-R, Decision on Niyitegeka’s Urgent Request for Legal Assistance, 20 June 2005 (“Niyitegeka Counsel Decision”).

[2] Niyitegeka Counsel Decision.

[3] The Registry informed Mr. Rutaganda of as much in its letter to him dated 21 October 2004, explaining that his former counsel could contact him. See Consolidated Request, Annex XVI (Letter from Aminatta N’gum, Acting Chief of the Tribunal’s Defence Counsel and Detention Management Section, to Mr. Rutaganda, dated 21 October 2004).

[4] Consolidated Request, para. 261, Exhibit XVIII.

[5] Mr. Rutaganda refers to an incident in March 2005. However, his correspondence refers to a communication with his sister. See Consolidated Request, para. 262, Exhibit XIX.

[6] See Consolidated Request, para. 114 (noting that the Démé and Yaache Affidavits were obtained as a result of the “persistent and voluntary research carried out by his former Defence team.”).

[7] Cf. The Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 7 (“The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system.”).

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Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

31. The Appeals Chamber recalls that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel at the Tribunal’s expense if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings at the preliminary examination stage.[1] The Appellant has already made detailed submissions with regard to his request for access to the confidential materials of Witness AWE, and the Appeals Chamber is not satisfied that additional submissions would be of assistance to the present inquiry. In such circumstances, the Appeals Chamber considers that the assignment of counsel under the auspices of the Tribunal’s legal aid scheme is not warranted. The Appeals Chamber therefore dismisses the request.

[1] Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-R, Decision on Request for Assignment of Counsel, 27 February 2009, pp. 2, 3; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion for Assignment of Counsel and the Prosecution’s Request to Place the Motion Under Seal, 24 September 2008, p. 2; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-99-52A-R, Decision on Jean-Bosco Barayagwiza’s Motion of 6 March 2008, 11 April 2008, p. 3; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motion To Obtain Assistance From Counsel, 28 February 2008, p. 2; Eliézer Niyitegeka v. The Prosecutor, Decision on Third Request for Review, 23 January 2008, para. 12. The Appeals Chamber recalls that it has rejected a previous request from the Appellant to have counsel assigned under the Tribunal’s legal aid scheme to assist him in the post-appeal phase. See Decision of 8 December 2006, paras. 40-42.

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Notion(s) Filing Case
Decision on Legal Assistance - 21.07.2009 KAMUHANDA Jean de Dieu
(ICTR-99-54A-R)

In its Judgement of 19 September 2005,[1] the Appeals Chamber affirmed Kamuhanda’s convictions for ordering genocide and extermination as a crime against humanity, as well as the sentences imposed by the Trial Chamber on 22 January 2004.[2] Subsequent to the Appeal Judgement, 1) one of the Prosecution’s witness in his case was found guilty on 4 December 2007 of giving false testimony under solemn declaration and contempt of the Tribunal and sentenced to nine months of imprisonment;[3] and 2) a former investigator in Kamuhanda’s Defence team, was convicted on 7 July 2009 of committing contempt of the Tribunal and sentenced to 10 months of imprisonment.[4]

Finding that it was necessary in order to ensure the fairness of the proceedings at this preliminary examination stage, the Appeals Chamber granted Kamuhanda’s request for assigned legal assistant to determine whether a request for review is warranted and, if need be, to prepare such a request. The applicable law was recalled, specifying the possible forms of such legal assistance:

17. The Appeals Chamber recalls that as a matter of principle it is not for the Tribunal to assist a convicted person whose case has reached finality. It is only in exceptional circumstances that a convicted person will be granted legal assistance at the expense of the Tribunal after a final judgement has been rendered against him.[5] This type of legal assistance may take different forms, such as the assignment of a counsel or a legal assistant, where the convicted person is indigent. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”.[6] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[7]

As for the reasons underpinning the necessity to ensure the fairness of the proceedings, the Appeals Chamber held:

18. The Appeals Chamber cannot rule on Kamuhanda’s potential grounds for review as currently presented; the Motion is neither fully articulated in this respect nor is it intended to be a request for review per se, and Kamuhanda has yet to consider the material disclosed to him by the Prosecution in May 2009. Nevertheless, unlike other requests for legal assistance for review proceedings brought before the Appeals Chamber, Kamuhanda’s Motion provides information on the materials he considers to be “new facts” and explains how they could have been a decisive factor in reaching the original decision. Having carefully considered Kamuhanda’s arguments, as well as the material recently disclosed by the Prosecution, the Appeals Chamber is not in a position to exclude that Kamuhanda’s potential grounds of review may have a chance of success.[8]

19. The Appeals Chamber observes that Kamuhanda was able to file a detailed and coherent request despite his asserted lack of technical legal skills. However, in the exceptional circumstances of this particularly complex case, involving false testimony and subsequent contempt proceedings, the Appeals Chamber is of the view that Kamuhanda lacks the necessary legal expertise to properly assess and weigh the material now in his possession to determine whether a request for review is warranted and, if need be, to prepare such a request.

20. Accordingly, the Appeals Chamber finds that Kamuhanda has shown that it is necessary in order to ensure the fairness of the proceedings at the preliminary examination stage that he be afforded limited legal assistance under the auspices of the Tribunal’s legal aid system.[…].

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Judgement, 19 September 2005.

[2] The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement and Sentence, 22 January 2004.

[3] See para. 7 of the present Decision, referring to The Prosecutor v. GAA, Case No. ICTR-07-90-R77-I, Judgement and Sentence, 4 December 2007.

[4] See para. 11 of the present Decision, referring to The Prosecutor v. Léonidas Nshogoza, Case No. ICTR-07-91-T, Judgement, 7 July 2009.

[5] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Fourth Request for Review, Public Redacted Version, signed on 12 March 2009 and filed on 21 April 2009 (“Niyitegeka Fourth Review Decision”), para. 52.

[6] Niyitegeka Fourth Review Decision, para. 52. 

[7] Ibid

[8] This determination is without prejudice to the evaluation of the grounds of review that the Appeals Chamber would undertake if a motion for review were to be filed.

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Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

51. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel at the Tribunal’s expense if the Appeals Chamber authorizes the review or if it deems it necessary to ensure the fairness of the proceedings.[1]

52. As a matter of principle, it is not for the Tribunal to assist a convicted person whose case has reached finality with any new investigation he would like to conduct or any new motion he may wish to bring by assigning him legal assistance at the Tribunal’s expense. It is only in exceptional circumstances that a convicted person will be granted legal assistance by the Tribunal after a final judgement has been rendered against him. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”. This necessity is, to a great extent, assessed in light of the grounds for review put forward by the applicant. In the present case, the Appeals Chamber considers that none of Niyitegeka’s grounds for review has any chance of success.

[1] Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion for Assignment of Counsel and the Prosecution’s Request to Place the Motion Under Seal, 24 September 2008, p. 2; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motion to Obtain Assistance From Counsel, 28 February 2008, p. 2; Third Review Decision, para. 12; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 41.

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Decision re Review and Counsel - 13.07.2015 NIYITEGEKA Eliézer
(MICT-12-16-R)

12.     The Appeals Chamber cannot exclude that this potential ground for review may have a chance of success. The provision of materially inconsistent testimony in a domestic proceeding, which was unavailable at the time of trial or appeal, could impact the credibility of an uncorroborated witness and thus the verdict. The scope of Witness GGV’s testimony during the domestic proceedings and any justifications for providing different accounts underscore the complexity of this matter. Given this complexity, Niyitegeka, who is serving his sentence in Mali, would benefit from the assistance of counsel to better evaluate the viability of his potential grounds for review and to provide a new and more focused submission supporting his request for review. Accordingly, the Appeals Chamber finds that Niyitegeka has shown that it is necessary in order to ensure the fairness of the proceedings that counsel be appointed under the auspices of the Mechanism’s legal aid program.

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MICT Rule Rule 146
Notion(s) Filing Case
Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

34. Article 20(4)(d) of the Statute guarantees an accused before the Tribunal the right to counsel of “his or her own choosing”. The Appeals Chamber observes that, throughout the proceedings, Nshogoza has benefited from his choice of counsel since Ms. Turner was acting on his behalf, albeit outside the framework of the Tribunal’s legal aid program, from the date of his arrest through her assignment under the program in October 2008.[1]

35. An accused who lacks the means to remunerate counsel has the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45 of the Rules.[2] The crux of Nshogoza’s complaint is not that legal aid was not made available to him, but rather that the Registrar did not promptly assign him the counsel of his choice under the Tribunal’s legal aid program. While in practice, the Registrar will take account of an accused’s preferences in assigning counsel, where an accused’s defence is being paid for pursuant to the Tribunal’s legal aid program his right to legal counsel of his own choosing from the list kept by the Registrar is not absolute.[3] It is within the Registrar’s discretion to override that preference if it is in the interests of justice.[4]

[1] In this respect, the Appeals Chamber notes that Nshogoza assigned power of attorney to Ms. Turner on 8 February 2008, and she appeared as his Counsel at the initial appearance. The Trial Chamber also noted that she represented him pro bono until 9 June 2008. Notwithstanding her stated intention to suspend all work on the file until formally assigned counsel under the legal aid program, she continued to represent Nshogoza and was accorded standing by the Trial Chamber as his Counsel, even during the brief assignment of Mr. Greciano as his Lead Counsel under the Tribunal’s legal aid program. See, e.g., Decision of 13 October 2008, para. 10; Trial Judgement (Annex), paras. 5, 8; Transcripts of 11 February and 28 August 2008.

[2] Article 20(4)(d) of the Statute; Rules 45 and 77(F) of the Rules; Directive on the Assignment of Defence Counsel, as amended on 15 June 2007, Article 2.

[3] See Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, para. 17 (“Blagojević and Jokić Appeal Judgement”); The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001, paras. 61, 62; Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000, para. 33.

[4] Blagojević and Jokić Appeal Judgement, para. 17.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
Decision on Assignment of Investigator and Counsel - 19.01.2015 NTABAKUZE Aloys
(MICT-14-77-R)

9.       […] The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel at the expense of the Mechanism if the Appeals Chamber authorizes the review, or, before such an authorization, if it deems it necessary to ensure the fairness of the proceedings.[1] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[2] In previous cases, the ICTR Appeals Chamber has confirmed such necessity where it found itself to be unable to exclude that the potential grounds for review invoked by the applicant may have a chance of success and where the particular complexity of the matter justified the granting of legal assistance in order to ensure the fairness of the proceedings.[3] […]

[…]

13      In any event, the Appeals Chamber considers that the matter at hand is distinguishable from the matter addressed by the ICTR Appeals Chamber in the Kajelijeli Appeal Decision of 12 November 2009. In the latter case, the ICTR Appeals Chamber granted Kajelijeli’s request for the assignment of counsel for the purpose of exploring witness recantation and allegations of manipulated or fabricated testimony.[4] The ICTR Appeals Chamber emphasized that the complexity of this particular matter required that Kajelijeli be assisted by counsel.[5] In contrast, the circumstances surrounding Ntabakuze’s potential ground of review in relation to the IAMSEA killings, including the need to contact witnesses and pursue new leads, are common features in the context of the preparation of a review request and are not, per se, particularly complex.

[1] Karera Decision of 4 December 2012 [François Karera v. Prosecutor, Case No. MICT-12-24-R, Decision on Request for Assignment of Counsel, 4 December 2012], para. 10, referring to Karera Decision of 28 February 2011 [François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011], para. 38. See also Niyitegeka Decision of 6 November 2014 [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014], para. 7.

[2] Niyitegeka Decision of 6 November 2014, para. 7, referring to Karera Decision of 4 December 2012, para. 10, Karera Decision of 28 February 2011, para. 39.

[3] See, e.g., Kajelijeli Appeal Decision of 12 November 2009 [Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Assignment of Counsel, 12 November 2009], para. 13; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Motion for Legal Assistance, 21 July 2009 (“Kamuhanda Decision of 21 July 2009”), paras. 18-20.

[4] Kajelijeli Appeal Decision of 12 November 2009, para. 13. See also Kamuhanda Decision of 21 July 2009, para. 19.

[5] Kajelijeli Appeal Decision of 12 November 2009, para. 13. The Appeals Chamber notes that the ICTR Appeals Chamber has previously recognised that newly discovered information related to witness credibility may amount to a new fact. See Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Review, 29 May 2013, para. 24 and references cited therein.

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MICT Rule Rule 146
Notion(s) Filing Case
Decision on Barayagwiza's Motion - 11.04.2008 BARAYAGWIZA Jean-Bosco
(ICTR-99-52A-R)

Following the issuance of the Appeal Judgement in this case, Barayagwiza requested that the Appeals Chamber order the Registrar to assign, pursuant to Rule 45 of the Rules, his former Lead Counsel on appeal as his counsel to assist him in the preparation of a motion for review and/or reconsideration of the Appeal Judgement. While the Registrar did not object to the assistance of the Counsel as pro bono counsel (provided that the counsel files a power of attorney pursuant to Rule 44 of the Rule[1]), he objected to the assignment under the legal aide scheme (Rule 45), in the absence of judicial determination on the admissibility of the request for review and/or reconsideration. The Appeals Chamber ruled that the request for assignment of counsel for the purpose of preparing a motion for reconsideration was without merit considering that a final judgement cannot be reconsidered. As for the preparation of a motion for review, the Appeals Chamber held:

pp. 3-4: RECALLING that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings  at the preliminary examination stage;[2]

CONSIDERING that the Motion fails to provide any information on the basis for a potential request for review;[3]

CONSIDERING further that in the absence of information as to the potential grounds for review, the Appeals Chamber cannot conclude that it would be necessary in order to ensure the fairness of the proceedings to authorize assignment of counsel to the Applicant under the Tribunal’s legal aid scheme;

FINDING therefore, that the Applicant has not shown that he should receive the assistance of counsel at the expense of the Tribunal;

NOTING that in any event the Applicant may be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, provided that counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal;

Subsequently, on 9 September 2008, the Appeals Chamber rendered its decision on Barayagwiza’s motion for reconsideration of the present Decision,[4] holding inter alia that:

p. 4: CONSIDERING that the Impugned Decision is not premised on the understanding that Mr. Herbert would assist the Applicant in the preparation of a motion for review on a pro bono basis, but merely informs the Applicant that, while he failed to demonstrate that assignment of a counsel under the Tribunal’s legal aid scheme was justified in the present circumstances, he may still, subject to certain conditions, be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, and;[5]

CONSIDERING that the Applicant merely reiterates his request for a blanket assignment of counsel under the Tribunal’s legal aid scheme;

CONSIDERING that the Applicant has failed to demonstrate a clear error of reasoning in the Impugned Decision or that reconsideration is necessary to prevent an injustice;

[1] See fn. 7 and p. 4 of the present Decision.

[2] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Decision of 8 December 2006”) para. 41; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Niyitegeka’s Urgent Request for Legal Assistance, 20 June 2005, p. 4; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision On Hassan Ngeze’s Motion To Obtain Assistance From Counsel, 28 February 2008, p. 2.

[3] In this respect, the Appeals Chamber recalls that review of a final judgement is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal. Review may only be granted when the moving party satisfies the following cumulative criteria: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decisions, Rutaganda Decision of 8 December 2006, para. 8.

[4] Decision on Jean-Bosco Barayagwiza’s Motion of 2 May 2008, 9 September 2008.

[5] Impugned Decision, p. 4.

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ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
Decision on Request to Stay Proceedings - 27.06.2014 PRLIĆ et al.
(IT-04-74-A)

16. The Appeals Chamber considers that the delays that would inevitably result from allowing Praljak to represent himself will negatively affect the right of Praljak, as well as that of his Co-Appellants (all of whom are represented by counsel) to fair and expeditious proceedings. As a trial chamber of the Special Court for Sierra Leone has held, ensuring adequate legal representation of each defendant is of particular importance in the context of a multi-accused case.[1] The Appeals Chamber notes that this consideration is relevant to the case at hand.[2] Praljak himself has stated on several occasions that his interests would be better served through assistance of counsel, in particular during appeal proceedings.[3] The Appeals Chamber is therefore satisfied, given the specific circumstances of this case, that Praljak should not be allowed to represent himself in these proceedings and considers proprio motu that the assignment of counsel to Praljak would be in the interests of justice pursuant to Rule 45ter of the Rules. Accordingly, the Appeals Chamber finds that there is no reason to stay proceedings as requested by Praljak.

[1] See Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation Under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, paras 13-14, 26 (evaluating a request for self-representation in a multi-accused case and taking into account the “complexities of the judicial process and the gravity of the alleged crimes”, as well as the “disruption to the Court's timetable and calendar”).

[2] Cf. Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010, para.7

[3] [Prosecutor v. Prlić et al., Case No. IT-04-74-A, Slobodan Praljak's Motion for Assignment of Counsel in the Interest of Justice, 4 October 2013 (public with public and confidential annexes)], paras 16-19. 

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ICTR Rule Rule 45quater ICTY Rule Rule 45ter
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

In its Decision of 21 August 2006, Trial Chamber I had appointed a defence counsel to Šešelj and clarified that the accused could participate to the proceedings only through such counsel. The accused’s personal participation could only have been allowed by the Trial Chamber after having taken “into account all circumstances and after having heard from the Counsel”.[1] The Appeals Chamber, recalling a principle laid down in the Milošević case[2], affirmed that an accused can file submissions to the Appeals Chamber in an appeal filed by his Counsel, even if the authorization of the Trial Chamber is missing.[3]

[1] Impugned Decision, para. 80.

[2] Milošević Decision on Defence Counsel, paras. 7 and 16.

[3] Decision, paras. 11-12.

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Notion(s) Filing Case
Order on Assignment of Counsel - 17.02.2016 NGIRABATWARE Augustin
(MICT-12-29)

Page.1:

CONSIDERING that, in general, the Appeals Chamber only authorizes the assignment of counsel at the expense of the Mechanism where it cannot exclude the likelihood of success of a potential ground of review;[1]

CONSIDERING that such a determination necessarily relates to the potential merits of the request for review and as corollary the Prosecution should have the opportunity to respond;[2]

[1] See, e.g., Niyitegeka Decision of 13 July 2015 [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015], para. 12; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Motion for Legal Assistance, 21 July 2009, para. 18.

[2] In this respect, the Appeals Chamber further notes that, at the review stage, the assignment of counsel under the legal aid system has never been authorized on an ex parte basis by the Mechanism or the International Criminal Tribunal for Rwanda.

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