Exceptional circumstances

Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At paras 11-14, the Appeals Chamber recalls that such exceptional circumstances, assessed case by case, might be constituted by a breakdown of trust, but not by an accused’s refusal to cooperate and, in the present case, by the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy.  

11. Under Article 19(A)(ii) of the Directive the Registrar may, in exceptional circumstances and at the request of lead counsel, withdraw the assignment of co-counsel.[1] The burden of proof of existence of such circumstances squarely lies on lead counsel.[2] The Appeals Chamber emphasizes that each case must be considered on its own and that what constitutes exceptional circumstances justifying a request for withdrawal may vary from one case to another. In addition, exceptional circumstances justifying withdrawal of a co-counsel might be substantially different from those applicable to withdrawal of a lead counsel.

12. The Appeals Chamber considers that the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy does not constitute an exceptional circumstance justifying a withdrawal of Co-Counsel. The Appeals Chamber notes that, in most decisions holding that a breakdown of trust between the accused and his legal representatives constituted an exceptional circumstance justifying the withdrawal of assignment, the breach of trust was attributable to one or more of the following circumstances: alleged incompetence or lack of knowledge of the Rwandan context and history; a lack of initiative in the defence of the accused; an exceptional workload incompatible with other professional commitments; a breach of professional responsibilities, including the obligation to communicate with the client; and misconduct or manifest negligence.[3] No allegations of this kind were made against Co-Counsel in the present case. Therefore, the Appeals Chamber is not convinced that the Registrar’s Decision and the President’s Decision contradict the Tribunal’s jurisprudence.

13. The Appeals Chamber recalls that, according to the jurisprudence of both the Tribunal and the ICTY, an accused’s refusal to cooperate with his lawyers does not constitute an exceptional circumstance warranting the Registrar’s withdrawal of assigned counsel.[4] More precisely, an accused does not have the right to unilaterally destroy the trust between himself and his counsel, or to claim a breakdown in communication through unilateral actions, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.[5] A lack of trust in counsel based on disagreements in approach to one’s defence strategy is distinguishable from a lack of trust due to a breach by counsel in fulfilling his professional and ethical responsibilities in the course of representation.[6] Thus, a divergence of opinion as to the defence strategy cannot in itself justify that there is a loss of trust in the counsel’s abilities or commitment to the case. It is even more so when the divergence is between an appellant and a co-counsel, whose mandate is to assist the lead counsel.[7]

14. In the present case, Lead Counsel did not provide the Registrar with any specific complaints regarding the performance of Co-Counsel that may have warranted her disqualification on the grounds of ineffective assistance or breach of professional duties. The Appeals Chamber rejects the Appellant’s argument that it is sufficient “to state in broad terms” that the trust and confidence have broken down[8] and, consequently, finds that it was open to the Registrar and the President to conclude that the Appellant’s request for withdrawal was not justified.[9]

[1] The Appeals Chamber notes that Article 20(A) of the ICTY Directive on the Assignment of Defence Counsel No. 1/94, IT/73/REV.11 does not contain the requirement of “exceptional circumstances” and instead refers to “the interests of justice”. This difference should be born in mind when making parallels between the jurisprudence of the two Tribunals.

[2] See Blagojević Trial Decision, para. 116.

[3] See The Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision by the Registrar of Withdrawal of Mrs. Danielle Girard as Co-Counsel for the Accused François-Xavier Nzuwonemeye, 13 October 2005, p. 3; Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-T, Decision by the Registrar of Withdrawal of Mr. Alfred Pognon, Lead Counsel for Athanase Seromba, 10 May 2005, p. 3; Blagojević Trial Decision, para. 119; The Prosecutor v. Theoneste Bagosora, Case No. ICTR-96-7-T, Decision on the Request by the Accused for Change of Assigned Counsel, 26 June 1997; Prosecutor v. Duško Tadić, Case No IT-94-1-A, Registrar’s Decision on Withdrawal of Co-Counsel, 2 September 1997, p. 1; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on the Request of the Accused for the Replacement of Assigned Counsel, 20 November 1996, pp. 2-3.

[4] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005 (“Milošević Decision of 2005”), para. 9.

[5] Blagojević Appeal Decision, para. 51. See also Bagosora Decision of 24 March 2005, paras 21, 30; The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Assigned Counsel’s Motion for Withdrawal, 7 December 2004 (Milošević Decision of 2004”), para. 18; Blagojević Trial Decision, para. 100.

[6] Blagojević Trial Decision, paras 106, 120.

[7] See supra, para. 10.

[8] Motion, para. 5.

[9] Cf. Blagojević Trial Decision, para. 90 confirmed by Blagojević Appeal Decision.

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Other instruments ICTY Directive on the Assignment of Defence Counsel, Article 19(A)(ii)