Continuous obligation

Notion(s) Filing Case
Decision on Motion for Stay - 02.03.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

10. Pursuant to Article 24(C) of the Directive on Assignment of Defence Counsel[1] (“Directive”),

[d]uring appellate proceedings, assigned counsel and assigned members of the defence team shall be remunerated on the basis of a maximum allotment of working hours paid at a fixed hourly rate as established in Annex I to this Directive, for the work reasonable and necessary to the preparation and presentation of the defence case.

The amount of such maximum allotment depends principally on the phase of the case and its complexity.[2] In determining the latter, the Registry generally takes into account a number of factors, including: the number and nature of the grounds of appeal; whether there is a cross-appeal; whether the appeal raises any novel legal issues; the complexity of the legal and factual issues involved; the number of documents that have to be reviewed; and the sentence imposed by the Trial Chamber. At present, different allocations of hours are as follows: Level 1 (difficult) with 1050 counsel hours and 450 support staff hours; Level 2 (very difficult) with 1400 counsel hours and 600 support staff hours; and Level 3 (extremely difficult) with 2100 counsel hours and 900 support staff hours.[3] In addition, all appeals hearing hours for counsel are reimbursed.

12. The Appeals Chamber confirms, however, that the present decision will not address the issue of allocating additional hours to Pavković’s Defence team given that it is the Registry which has the primary responsibility in the determination of matters relating to remuneration of counsel.[4] […]

14. […] [T]the Appeals Chamber reiterates that Pavković’s Counsel agreed to represent him in full awareness of the system of remuneration for assigned counsel and is bound thereby.[5] In a letter addressed to the then Acting Head of OLAD and attached to the Motion (“Letter to OLAD”), Pavković’s Counsel argues that the understanding that he “accepted this appeal assignment with full understanding that resources were limited and that [he] could not be paid for each hour worked is incorrect”. He asserts that he was in fact “never formally assigned to handle this appeal [which] just carried over from the trial”.[6] The Appeals Chamber finds these claims untenable.[7] Pavković’s Counsel is therefore under the obligation to continue working in his client’s best interests until the representation is terminated (with the completion of the proceedings or an approved withdrawal).

[1] IT/73/Rev.11, 11 July 2006.

[2] The Appeals Chamber notes that Pavković’s statement that payment on appeal is made on an hourly basis (Reply to the Registry’s Submission, para. 5) is therefore not entirely correct, as the applicable system implies the remuneration for validly billed hours of work within a maximum allotment (see Registry’s Submission, Annex VI).

[3] The Appeals Chamber notes that in the history of the Tribunal, only two cases on appeal were considered to be “Level 2” and none has so far been qualified as “Level 3”.

[4] E.g. Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003 (“Decision of 13 November 2003”), para. 19.

[5] Cf. Decision of 13 November 2003, para. 22, referring to Article 9(C) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 Rev. 1, 12 July 2002. The Appeals Chamber notes that the current version of the said document as amended on 22 July 2009 and promulgated on 6 August 2009, IT/125 Rev. 3 (“Code of Conduct”) contains the same provision.

[6] Letter to OLAD. See also, Reply to the Registry’s Submission [General Pavković’s Reply to Registry Submission Pursuant to Rule 33(B) Concerning General Pavković’s Motion for Stay of Proceedings Pending Action by the Registrar, 26 February 2010], paras 3-5.

[7] See Registry’s Submission substantiating the assignment procedure of Pavković’s Counsel, including the appeal proceedings and the fact he was expressly notified that “in the event [Pavković] (or the Prosecution) wished to file an appeal, the appeal phase would be preliminary ranked at level 1 complexity pending further information from Mr. Ackerman and consultation with the Appeals Chamber” (para. 7). Having represented Pavković for almost a year in these appeal proceedings on this basis and with an upgraded level of complexity, and accepted full payment for counsel and support staff hours, Pavković’s Counsel cannot plausibly argue that he has never been assigned to represent his client on appeal in full awareness of the remuneration schemes (paras 4-16; Annex I-IV). See also, Directive [Directive on Assignment of Defence Counsel, IT/73/Rev.11, 11 July 2006], Articles 16(B) and 16(C).

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Other instruments Code of Professional conduct for Counsel Appearing Before the International Tribunal.
Directive on the Assignment of Defence counsel (ICTY): Article 16; Article 24(C).
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

18.     The Appeals Chamber turns to Niyitegeka’s contention that the Single Judge erred in failing to consider that all the statements and testimony of the 12 Prosecution witnesses given subsequent to his own proceedings constitute potentially exculpatory material subject to disclosure under Rule 73 of the Rules. In this respect, the Appeals Chamber recalls that Rule 73(A) of the Rules imposes upon the Prosecution a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The determination as to which material is subject to disclosure under Rule 73 of the Rules is a fact-based enquiry made by the Prosecution. A chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will presume that the Prosecution is acting in good faith. Niyitegeka demonstrates no error in the Single Judge’s determination that, with respect to Niyitegeka’s present request for disclosure, there was no reason to doubt that the Prosecution was complying with its continuous disclosure obligations in good faith. The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.

19.     […] [T]he Appeals Chamber recalls that the Office of the Prosecutor has a duty to utilize procedures designed to ensure that, particularly in instances where the same witnesses testify in different cases, the evidence provided by such witnesses is re-examined in light of Rule 73 of the Rules to determine whether any material has to be disclosed.[6] This obligation reflects the possibility that statements or testimony given by a witness in a subsequent proceeding may contain material subject to disclosure under Rule 73 of the Rules and underscores that, as noted above, determining what is subject to disclosure is a fact-based enquiry by the Prosecution. […] Furthermore, Rule 73 of the Rules limits the Prosecution’s obligation to the disclosure of material that “in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[8] To the extent Niyitegeka considers that the Prosecution may be unaware of information that may impact the assessment of whether material in its possession is subject to disclosure under Rule 73 of the Rules, he may share such information with the Prosecution. In light of the foregoing, the Appeals Chamber finds that Niyitegeka fails to establish that the Single Judge committed a discernible error by not determining that all the statements and transcripts of evidence given by the 12 Prosecution witnesses during proceedings subsequent to the conclusion of Niyitegeka’s case constitute material subject to disclosure pursuant to Rule 73 of the Rules.

[1] See also Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 15.

[2] Ngirabatware Decision of 21 November 2014 [Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014]], para. 15; Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi Decision of 24 September 2012”), para. 7; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), para. 183.

[3] Ngirabatware Decision of 21 November 2014, para. 15. See also Mugenzi Decision of 24 September 2012, para. 7; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010, para. 14. 

[4] Decision of 29 January 2016 [Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016 ]], para. 11.

[5] Ngirabatware Decision of 21 November 2014, para. 15; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 18; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), paras. 265, 266. See also Kalimanzira Appeal Judgement, para. 20.

[6] Cf. Blaškić Appeal Judgement, para. 302.

[7] See supra note 51.

[8] Emphasis added.

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MICT Rule 73, 146