Communication with Counsel

Notion(s) Filing Case
Order on Extension of Time - 24.06.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

CONSIDERING that counsel must be able to communicate with his or her client prior to filing material on his or her behalf;

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Notion(s) Filing Case
Decision on Communication with Counsel - 15.05.2008 NGEZE Hassan
(ICTR-99-52-R)

Hassan Ngeze requested the Appeals Chamber to authorize “privileged communication with him and two legal assistants and one lawyer who would assist Mr. Dev Nath Kapoor, acting as pro bono Counsel” in the preparation of a motion for review of the Appeal Judgement rendered in this case on 28 November 2007, as well as in matters relevant to his detention. The Appeals Chamber rejected his motion holding that:

pp. 3-4: NOTING that Rule 65 of the Tribunal’s Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal[1] (“Detention Rules”) provides that “[e]ach detainee shall be entitled to communicate fully and without restraint with his Defence Counsel”;

NOTING that visits to and communications with a detainee at the UNDF are governed by Rules 58 to 64 of the Detention Rules;

NOTING that Rule 65 of the Detention Rules only provides for privileged communications between the Applicant and his Counsel and that, in the absence of Counsel, legal assistants are generally allowed non-privileged visitations under Rule 61 of the Detention Rules;

RECALLING that pursuant to Rule 3 of the Detention Rules, the Commanding Officer of the UNDF has primary responsibility for all aspects of the daily management of the UNDF, including communications and visitations, and that, pursuant to Rules 82 and 83 of the Detention Rules, when a detainee is not satisfied with the response of the Commanding Officer to a specific request in that regard, he or she has the right to make a written complaint to the Registrar who shall forward it to the President of the Tribunal;

CONSIDERING that as the Applicant has not exhausted the procedure made available to him under the Detention Rules for consideration of his request the Appeals Chamber will not consider the merits of the Motions

[1] Adopted on 5 June 1998.

[2] Visits to the UNDF under Rule 65 are subject to the same security controls as are imposed under Rule 61 of the Detention Rules. However, communications between Counsel and a detainee under the privileged regime of Rule 65 are conducted “in the sight but not within the hearing, either direct or indirect, of the staff of the Detention Unit”. See Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant Without Attendance of Lead Counsel, 17 August 2006, p. 3 referring to Status Conference, T. 7 April 2006, pp. 10-12.

[3] See number of decisions delivered in the Nahimana et al. case, ICTR-99-52-A: Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant Without Attendance of Lead Counsel, 17 August 2006, p. 3; Decision on Hassan Ngeze’s Request for a Status Conference, 13 December 2005, p. 3; Decision on Hassan Ngeze’s Request to Grant him Leave to Bring his Complaints to the Appeals Chamber, 12 December 2005, p. 3; Decision on Hassan Ngeze’s Motion for a Psychological Examination, 6 December 2005, p. 3; Decision on Hassan Ngeze’s Motion to Set Aside President Møse’s Decision and Request to Consummate his Marriage, 6 December 2005, pp. 3-4.

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Other instruments Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (ICTR): Rule 65.