Conflict of interest

Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

19. The Appeals Chamber has further elaborated that a conflict of interest arises “where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice”.[1]

[1] Gotovina Decision of 29 June 2007 [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.2, Decision on Ivan Čermak’s Interlocutory Appeal against the Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadraska Sloković, 29 June 2007], para. 16 citing Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stokić Against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004 (Stojić Decision), para. 22. The substance of the arguments of the parties relate to actual versus potential prejudice to the accused (Prlić Appeal, paras 39-43; Prlić Reply, paras 9 and 17; Prosecution Response, paras 37-41). The Appeals Chamber considers that the Trial Chamber simply required a particularized showing of how Prlić’s Counsel failed in fulfilling his professional and ethical obligations.

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

158. As to the alleged conflict of interest between Appellant Barayagwiza and his Counsel Barletta-Caldarera, the Appeals Chamber endorses the ICTY’s view that “[a] conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice”.[1]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojić against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004, para. 22 (footnote omitted). See also Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal against Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadranka Sloković, 29 June 2007, para. 16; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.1, Decision on Miroslav Šeparović’s Interlocutory Appeal against Trial Chamber’s Decisions on Conflict of Interest and Finding of Misconduct, 4 May 2007, para. 23.

Download full document
Notion(s) Filing Case
Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.
(IT-06-90-AR73.2)

16.    The Appeals Chamber also recalls that a conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice.[1] Safeguarding the interests of justice requires the prevention of potential conflicts of interest before they arise.[2] If a Chamber determines that the risks and damage that could be caused are such as to jeopardise the right of the accused to a fair and expeditious trial or proper administration of justice, it takes the appropriate measure to restore and protect the fairness of trial and the integrity of the proceedings.[3] It has been held that such measures can include ordering the withdrawal of counsel.[4]

28.    Finally, the Appeals Chamber considers that, in a case of this kind, “safeguarding the interests of justice requires not only the existence of a mechanism for removing conflicts of interests after they have arisen but also the prevention of such conflicts before they arise”.[5] It was hence not unreasonable for the Trial Chamber to find that the dual representation by Prodanović and Sloković risks to considerably prejudice the Appellant as it would limit the choice of defence strategies due to his Counsel’s duty of loyalty to Ademi and that they therefore would not be able to serve best the Appellant’s interests.

[1] 4 May 2007 Decision, para. 23 citing Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojić against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004 (“Prlić Appeal Decision”), para. 22.

[2] Ibid. [Prlić Appeal Decision], para. 25.

[3] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-PT, Decision on Requests for Appointment of Counsel, 30 July 2004 (“Prlić Trial Decision”), para. 16.

[4] Prosecutor v. Željko 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 (“Mejakić Decision”), para. 7; Prlić Trial Decision, para. 16.

[5] Ibid. [Prlić Appeal Decision], para. 25 (emphasis added).

Download full document
Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal; Article 14.
Notion(s) Filing Case
Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

23. […] The Appeals Chamber also recalls that a conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice.[1]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojić Against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004 (“Stojić Decision”), para. 22; Simić Decision [Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-PT, Decision on Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999], p. 6.

Download full document
Notion(s) Filing Case
Decision on Attorney Jovan Simić - 06.10.2004 MEJAKIĆ et al.
(IT-02-65-AR73.1)

This interlocutory appeal decision turned on whether it constituted a conflict of interest for Mr. Jovan Simić to act as counsel for both Željko Mejakić, one of the accused in the case of Prosecutor v. Mejakić et al., and Dragoljub Prcać, an accused in the case of Prosecutor v. Kvočka et al. The Prosecution submitted that should the accused Prcać be called to testify in the Mejakić et al. case, it would be difficult for Mr. Simić, as counsel for both accused, to reconcile his duty to protect the interests of each accused. The Appeals Chamber held as follows:

7. The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system. The Trial Chamber, however, considered that it had a statutory obligation to ensure a fair and expeditious conduct of the proceedings, and that from this obligation it derived the power to decide on the Prosecution’s motion alleging a conflict of interest.[1] The approach of the Trial Chamber is consistent with the Appeals Chamber’s decision in the case Prosecutor v. Blagojević of 7 November 2003.[2] In that decision, the Appeals Chamber confirmed that the Trial Chamber has an inherent power to ensure that the trial of an accused is fair. However, the Appeals Chamber warned that in exercising this power the Trial Chamber cannot appropriate for itself a power that is conferred elsewhere.[3] The Directive on Assignment of Defence Counsel[4] does not provide any specific procedure for the removal of Defence Counsel in the case of a conflict of interest at the request of the Prosecution, and as such, the Trial Chamber could rely on its inherent power to review the assignment of Mr. Simić.

8. The right to choose counsel is a fundamental right of the accused and is recognized by Article 21(4) (b) and (d) of the Statute of the International Tribunal (“Statute”). However, this right is not without limits. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to counsel of one’s own choosing.”[5] One of the limits to the accused’s choice is a conflict of interest affecting his counsel. Under Article 14 of the Code of Conduct,[6] a counsel may not represent a client when this representation affects or can affect the representation of another client. [….]

This requirement is reflected by Article 16 (E) of the Directive on Assignment of Defence Counsel:

E.         No counsel shall be assigned to more than one suspect or accused at a time, unless an assignment to more than one suspect or accused would neither cause prejudice to the defence of either accused, nor a potential conflict of interest. [THIS PROVISION WAS AMENDED WITH THE ENTRY INTO FORCE ON 11 JULY 2006 OF THE DIRECTIVE ON THE ASSIGNMENT OF DEFENCE COUNSEL, IT/73 Rev 11. AS AMENDED.]

Mr. Simić had acknowledged a potential conflict of interest and, following the procedure laid out under Article 14 of the Code of Conduct, obtained the written consent of both Mr. Mejakić and Mr. Prcać to represent each of them.

[…]

12. The Appeals Chamber finds that a conflict of interests does exist at the present stage of  the proceedings. It is not contested that Mr. Mejakić was the direct superior of Mr. Prcać in the Omarska camp. Mr. Mejakić is charged with crimes committed in the Omarska camp under Article 7 (1) of the Statute for participating in a joint criminal enterprise. In addition, he is charged under Article 7 (3) of the Statute, on the basis that he was the commander of the camp and had effective control over the guard shift commanders, camp guards, and other persons working within or visiting the Omarska camp. Further, the Prosecution claims that Mr. Prcać has given evidence incriminating Mr. Mejakić in an interview with the Prosecution in the Kvočka et al. case. It was for this reason that the Trial Chamber considered Mr. Prcać’s evidence significant and allowed the Prosecution to include Mr. Prcać in its witness list.[7]

[…]

14. The Appeals Chamber further finds that, if the conflict of interest regarding the representation of Mr. Prcać and Mr. Mejakić is not resolved at the present stage of proceedings, the administration of justice may be irreversibly prejudiced. The Appeals Chamber considers that the conflict of interest is an important one. The Trial Chamber noted in its First Decision that Mr.  Mejakić did not deny that he was in a position of authority at the Omarska camp, and that he acknowledged that Mr. Prcać spent some time there under his command.[8] Mr. Mejakić is charged with command responsibility under Article 7(3) of the Statute. Mr. Prcać may give evidence on the command structure of the Omarska camp as well as on the particular offences committed in this camp. The evidence given by Mr. Prcać may therefore have a significant impact on the trial of Mr. Mejakić.

15. The decision by Mr. Prcać whether to cooperate with the Prosecution has to be taken presently, and it may impact on the potential benefits for Mr. Prcać and on the conduct of the Mejakić trial. Moreover, the conflict of interest may influence the Defence strategy of Mr. Mejakić, for example, by preventing his counsel from calling certain witnesses in order not to prejudice the interests of Mr. Prcać. There is finally the risk that Mr. Simić might withdraw in the course of the trial because of the conflict of interest, thus delaying the proceedings. For these reasons also the Appeals Chamber finds that the representation of both Mr. Mejakić and Mr. Prcać by Mr. Simić is likely to irreversibly prejudice the administration of justice.

[1] First Decision [Decision on Prosecution motion to resolve conflict of interest regarding attorney Jovan Simić, 18 September 2003], p. 2.

[2] Prosecutor v. Blagojević, Case no. IT-02-60-AR73.4, Public and redacted reasons for Decision on Appeal by Vidoje Blagojević to replace his Defence team, 7 November 2003.

[3] Idem, para. 7.

[4] Directive on Assignment of Defence Counsel, IT/73, Rev 9, as amended on 12 July 2002.

[5] Prosecutor v. Akayesu, Case No. ICTR-96-4A, Appeals Chamber Judgement, 1 June 2001, para. 61.

[6] Code of professional conduct for counsel appearing before the International Tribunal, IT/125 rev. 1, as amended on 12 July 2002 (“Code of Conduct”).

[7] Decision on Prosecution motion for leave to amend its Rule 65ter witness and exhibit lists, 18 February 2004.

[8] First Decision, p. 3.

Download full document
ICTR Statute Acticle 20(4)(d) ICTY Statute Acticle 21(4)(d) Other instruments Directive on the Assignment of Defence Counsel (ICTY), Article 16; Code of Professional Conduct for Counsel Appearing Before the International Tribunal.
Notion(s) Filing Case
Decision on Appointment of Counsel - 24.11.2004 PRLIĆ et al.
(IT-04-74-AR73.1)

19. Pursuant to Article 21(4) (b) and (d) of the Statute the accused is entitled to legal assistance of his own choosing. However this guarantee is not without limits. Previous decisions issued by the Appeals Chamber have established that the right to publicly paid counsel of one’s own choice is limited.[1] In principle the choice of any accused regarding his Defence counsel in proceedings before the International Tribunals should be respected unless there are sufficient grounds to override the accused’s preference in the interests of justice. When the fairness of the trial which is one of the fundamental rights of the accused also provided for in Article 21 of the Statute, is at stake (as it is suggested to be the case here) the accused’s choice might be overridden regardless of whether the case is concerned with the appointment of counsel paid by the accused. As rightly stated in the Impugned Decision, one of the limits to the accused’s choice is the existence of a conflict of interests affecting his counsel.[2]

[…]

21. The Appeals Chamber recalls that the issue of qualification, appointment and assignment of counsel, is open to judicial scrutiny.[3] The issue being raised bears on the substantive nature of the representation by Mr. Olujić and the proper fulfilment of the obligations which derive from the legal representation of the Appellant.[4] Problems relating to the Appellant’s defence would affect the conduct of the case which the Trial Chamber has the duty to regulate in accordance with the requirements set forth in Article 20 of the Statute.[5] In sum, a conflict of interests between Mr. Ivica Rajić and the Appellant would affect the fairness of the proceedings. This concerns, first, the responsibility of the Trial Chamber to ensure that the trial is fair, and secondly, the right of the Appellant and of Ivica Rajić to a fair trial. [6]

22. A conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice.[7] Article 14 of the Code of Conduct[8] which concerns the existence of a conflict of interests, provides that a counsel may not represent a client when this representation affects or can affect the representation of another client.  

[1] Prosecutor v. Jean Kambanda, Case No.: ICTR-97-23-A, Appeals Chamber Judgement, 19 October 2000, para. 33; Prosecutor v. Jean Paul Akayesu, Case No.: ICTR-96-4-A, Appeals Chamber Judgement, 1 June 2001, paras 61, 62; Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003, para. 22; Prosecutor v. Željko 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. 8.

[2] Impugned Decision [Decision on Requests for Appointment of Counsel, 30 July 2004], para. 13; see Prosecutor v. Željko 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. 8.

[3] Prosecutor v. Enver Hadžihasanović et al, Case No.: IT-01-47-PT, Decision on Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002, para. 21.

[4] See Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-60-T, Decision on Independent Counsel for Vidoje Blagojević’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003, para. 27.

[5] Prosecutor v. Enver Hadžihasanović et al, Case No.: IT-01-47-PT, Decision on Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002, para. 21.

[6] See Prosecutor v. Blagoje Simić et al, Case No.: IT-95-9-PT, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999, p. 6.

[7] Ibid.

[8] Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 Rev. 1, as amended on 12 July 2002 (“Code of Conduct”).

Download full document
ICTR Statute Article 20 (4) (b);
Article 20 (4) (d)
ICTY Statute Article 21 (4) (b);
Article 21 (4) (d)