Counsel

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.

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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 Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

41. The Appeals Chamber considers that counsel representing an accused acts on behalf of the accused. Unless it is shown that Praljak’s counsel acted beyond their mandate or in contravention of Praljak’s instructions, submissions made by his counsel are attributable to Praljak.[1] . […].

[1] In this context, the Appeals Chamber agrees with the finding of the ICTR Appeals Chamber that only in “exceptional cases [… do] the interests of justice require that an appellant not be held responsible for the failures of counsel”, Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006, para. 31. Praljak has not shown any such exceptional circumstances in the present case.

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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 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.

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

28. Article 26 of the Code of Conduct further provides that, subject to three exceptions, “[c]ounsel shall not act as an advocate in a proceeding in which counsel is likely to be a necessary witness”.[1]

29. […] At the time of the questioning, the investigators were only able to provide Prlić with a list of general questions reflecting the nature of subjects which were of interest to the Prosecution, and not specific questions they wished to have answered.[2] Considering these circumstances, and even assuming that Salahović knew about the subject-matter interest of the Prosecution when the questioning began, the Appeals Chamber concludes that, on the basis of the facts before it, a trier of fact could reasonably conclude that there was, at that stage, no likelihood that Salahović would become a witness.[3] Thus, this part of the Prlić Appeal is also rejected. As a consequence, the Appeals Chamber further dismisses Prlić’s arguments related to the fact that the alleged conflict of interest would have affected not just him, but the administration of justice as a whole.[4]

[1] Code of Conduct, Article 26.

[2] Motion to Suppress Statement, para. 2.

[3] Cf. Gotovina Decision of 25 October 2006, paras 31-33.

[4] Prlić Appeal, para. 38; see also Prosecution Response, para. 37.

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Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

21. […] A mere listing of evidentiary documents and witness statements as proof of Salahović [Prlić’ counsel]’s political activity does not […] suffice to establish prejudice to Prlić’s interests. The Prlić Appeal does not generally connect Salahović’s interests and activities to actual or potential conflicts of interest with his client. In particular, Prlić does not provide examples of how he was potentially or actually prejudiced by the alleged conflict of interest. He does not show any basis for a potential or actual risk that Salahović’s political and personal activities would “limit the choice of defence strategies”[1] in relation to Prlić’s case.

[1] Gotovina Decision of 29 June 2007, para. 28. Cf. also Prosecutor v. Ante Gotovina, Cases Nos. IT-01-45-AR73.1, IT-03-73-AR73.1 and IT-03-73-AR.73.2, Decision on Interlocutory Appeals against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006 (“Gotovina Decision of 25 October 2006”), para. 28.

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Other instruments Code of Professional Conduct for Counsel Appearing before the International Tribunal
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

24. […] Indeed, Prlić had already shown in September 2005 that a divergence on personal and political views might have ensued at the time of the questioning; the Trial Chamber concluded, however, that such a divergence did not create a legal conflict of interest.[1] Even the additional material brought at the trial stage on possible personal and political disagreements between Prlić and Salahović did not convince the Trial Chamber that a conflict of interest existed. In practice, it is unclear how the defence strategy could be influenced by the fact that Salahović was Prlić’s counsel.[2]

25. The Appeals Chamber therefore finds that it fell within the Trial Chamber’s discretion to conclude that, in light of the circumstances of the case and the acquaintance of the two individuals in question, their divergence of political and personal views in the indictment period would not adversely affect Salahović’s professional judgement and amount, as such, to the legal conflict of interest posited by Prlić at the time of the questioning. Prlić Appeal in this respect is therefore dismissed.

26. […] without linking the differing political and personal interests and activities with any actual or potential effects these differences would have on Salahović’s “duty of loyalty to … put [the interests of justice] before his own”,[3] a trier of fact could reasonably find that no conflict of interest was established. Prlić Appeal in this respect is therefore dismissed.

[1] Pre-Trial Decision on Statement, para. 17.

[2] See, in this respect, 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. 15.

[3] Code of Conduct, Article 14(A).

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Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal
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
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

124. The Appeals Chamber further notes that it was the Appellant who instructed his Counsel “not to represent [him] in this trial”, as is evident from the aforementioned excerpt from Appellant Barayagwiza’s statement of 23 October 2000,[1] his letters of 23 and 24 October 2000[2] and the motion to withdraw Counsel for Jean-Bosco Barayagwiza.[3] The Appellant does not, moreover, contest that he gave such instruction to his Counsel. In the circumstances, the Appeals Chamber cannot find that the Trial Chamber should have compelled them to be more active in defending the Appellant. Such an intervention would not have been consistent with the role of a Trial Chamber of the Tribunal.[4] The appeal on this point is accordingly dismissed.

125. […] In effect, the Appellant’s attitude amounted to a waiver of the right to examine or to have examined the witnesses who were being heard at the time.[5] [See also para. 165 of the Appeals Judgement]

[1] See supra, para. 113.

[2] Letters from Jean-Bosco Barayagwiza dated 23 and 24 October 2000 respectively, attached to the [Motion for Withdrawal of Counsel for Jean-Bosco Barayagwiza] of 26 October 2000. In the first letter, addressed to Presiding Judge Pillay, Appellant Barayagwiza states: “Under no circumstances are they authorized to represent me in any respect whatsoever in this trial”. In the second letter, he reiterates: “[m]y counsels are instructed not to represent me in that trial”.

[3] [Motion for Withdrawal of Counsel for Jean-Bosco Barayagwiza], 26 October 2000, paras. 2-4, 8.

[4] As the Appellant himself acknowledges (see, for example, Barayagwiza Appellant’s Brief, para. 74), the proceedings at the Tribunal are essentially adversarial and it is the parties who are primarily responsible for the conduct of the debate. A Trial Chamber cannot dictate to a party how to conduct its case.

[5] In this respect, the Appeals Chamber notes that the ECHR recognized that an accused can waive his right to examine or cross-examine a witness. See, inter alia, Vaturi v. France, No. 75699/01, ECHR (first section), Judgement of 13 April 2006, para. 53, and Craxi v Italy, No. 34896/97, ECHR (first section), Judgement of 5 December 2002, paras. 90-91.

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

130. The Appeals Chamber has for long recognized, pursuant to Article 20(4)(d) of the Statute, the right of an indigent accused to be represented by competent counsel.[1] It recalls that Rule 44(A) of the Rules provides:

Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.

Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel; the presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of trial counsel to succeed, an appellant must rebut the presumption of competence of said counsel by demonstrating that there was gross professional misconduct or negligence which occasioned a miscarriage of justice.[2]

131. […] [T]he responsibility for drawing the Trial Chamber’s attention, in accordance with the appropriate procedure, to what he considers to be a breach of the Tribunal’s Statute and Rules lies in the first place with the appellant[3] who claims that his right to assistance of counsel at trial has been violated.[4] Failing that, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act.[5] He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.

[1] Akayesu Appeal Judgement, paras. 76 and 78; Kambanda Appeal Judgement, para. 34 and footnote 49.

[2] Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Public Redacted version of the Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 36; Akayesu Appeal Judgement, paras. 77, 78, 80; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on the Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, paras. 48-49. These three cases refer to Counsel’s “gross incompetence”. In one decision in Blagojević, the ICTY Appeals Chamber refers to “misconduct or manifest professional negligence” (Prosecutor v. Vidoje 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, para. 32). In paragraph 23 of the Blagojević and Jokić Appeal Judgement, the Appeals Chamber evokes gross incompetence.

[3] Kambanda Appeal Judgement, para. 23. This principle was evoked by the ICTY Appeals Chamber in the Tadić Appeal Judgment, para. 55, in connection with the right to have the necessary time and facilities for the preparation of one’s defence, and by the ICTR in the Kayishema and Ruzindana Trial Judgement, para. 64. The Appeals Chamber considers that this principle applies in the same way to any complaint as to the quality of an accused’s representation.

[4] Under Article 45(H) of the Rules, the Trial Chamber may, under exceptional circumstances, intervene at the request of the accused or his counsel, by “[instructing] the Registrar to replace an assigned counsel, upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings”. Articles 19 and 20 of the Directive on the Assignment of Defence Counsel set out the conditions for, respectively, withdrawal and replacement of  Counsel.

[5] A recent decision of the European Court of Human Rights confirms the obligation on national authorities to intervene in the event of manifest incompetence by assigned Counsel: “the Court is of the view that the conduct of the applicant cannot in itself relieve the authorities of their duty to ensure that the Accused is effectively represented. The above-mentioned shortcomings of the court-appointed lawyers were manifest, which put the onus on the domestic authorities to intervene”; Sannino v. Italy, No. 30961/03, ECHR, Appeal Judgement of 27 April 2006, para. 51. See also Kamasinski v. Austria, No. 9783/82, ECHR, Appeal Judgement of 19 December 1989, para. 65 (“the competent national authorities are required under Article 6 §3(c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way.”)

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

139. The Appeals Chamber considers that, when the accused is represented, the presence of his counsel or co-counsel at the hearing is essential. Thus, a counsel who absents himself without having ensured that his co-counsel will be present is committing gross professional misconduct. The same can be said for counsel or co-counsel absenting himself while being the only representative for the Defence of the accused and while the presentation of evidence continues (save in exceptional circumstances).[1] Furthermore, in both cases the manifest misconduct of the representatives of the accused obliges the Trial Chamber to act, for example by ordering an adjournment, and if necessary by sanctioning such behaviour.

140. […] The Appeals Chamber is of the opinion that the evidence presented in the absence of Counsel and Co-Counsel of the Appellant cannot be relied on against him,[2] and it will determine below if the findings of the Trial Chamber should be upheld in the absence of that evidence.

[1] In this regard, the Appeals Chamber notes that the appointment of legal assistants is not subject to the verifications provided for in Rule 44(A) of the Rules and Articles 13 and 14 of the Directive on the Assignment of Defense Counsel in order to guarantee the competence of Counsel and Co-Counsel (see supra, para. 130). In the absence of such guarantees, it cannot be considered that a legal assistant in a Defence team has authority to represent the accused on the same basis as Counsel or Co-Counsel under Article 20(4)(d) of the Statute. Hence, Counsel and Co-Counsel for Appellant Barayagwiza could not validly be replaced by legal assistants. 

[2] In a recent decision, the Appeals Chamber referred back to the Trial Chamber the assessment of the prejudice resulting from continuation of the cross-examination of a witness in the absence of one of the co-accused, specifying that it falls to the Trial Chamber, if need be, to exclude the portion of the testimony taken in the appellant’s absence or to recall the witness (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Motion Interlocutory Appeal concerning his Right to Be Present at Trial, 5 October 2007, para. 16). In the instant case, taking into account the impossibility of recalling the witnesses having testified in the absence of Appellant Barayagwiza and of his Counsel and Co-Counsel, the Appeals Chamber must dismiss all of the testimony against him obtained in these circumstances. 

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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.

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

265. While not deeming it necessary to reiterate all the legal principles evoked above,[1] the Appeals Chamber recalls that the right of an indigent defendant to effective representation does not entitle him to choose his own counsel. […]

[1] See supra IV. A.

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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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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

86. The Appeals Chamber recalls that pursuant to Article 16(C) of the Directive on the Assignment of Defence Counsel, “[a]cting under the authority of lead counsel, the co-counsel may deal with all stages of the proceedings and all matters arising out of the defence of the suspect or accused.” The Appeals Chamber has previously considered that when the accused is represented, the presence of his lead counsel or co-counsel at trial is essential.[1] Thus, a lead counsel who absents himself has the duty to ensure that his co-counsel is present at trial.[2] The Trial Chamber therefore did not err in holding that one of the purposes of Article 16(C) of the Directive on the Assignment of Defence Counsel is to allow for the accused to be represented at trial hearings by a co-counsel in the event that the lead counsel is unable to attend.[3] Furthermore, the Appeals Chamber notes that the Trial Chamber explicitly took into account that Pavković’s lead counsel and co-counsel were in contact with each other, so that the co-counsel could continue to act under the authority of the lead counsel in compliance with the relevant requirement of Rule 16(C) of the Directive on the Assignment of Defence Counsel.[4] In light of these considerations, the Appeals Chamber finds that the Trial Chamber did not err in holding that the Directive on the Assignment of Defence Counsel allowed for representation by co-counsel acting under the authority of lead counsel in the absence of the latter.

See also paras 87-88.

[1] Nahimana et al. Appeal Judgement, para. 139.

[2] Nahimana et al. Appeal Judgement, para. 139.

[3] Decision of 14 July 2006 [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Pavković Motion to Stay Proceedings, 14 July 2006], para. 7.

[4] Decision of 14 July 2006, para. 8.

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Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.
(IT-05-88-A)

In this decision, the Appeals Chamber dealt with the Prosecution’s requests to appoint an independent counsel to review potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010 for the limited purpose of determining whether any lawyer-client privilege.

7. The Appeals Chamber recalls that, pursuant to Rule 97 of the Rules, all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure in the absence of the client’s consent or voluntary disclosure to a third party. This privilege is vital to the defence of an accused or appellant by allowing for the open communication between attorney and client necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the Statute. […]

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 97 ICTY Rule Rule 97
Notion(s) Filing Case
Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.
(IT-05-88-A)

7. […] In the circumstances of this case, the Appeals Chamber finds that should the Prosecution take steps to fulfil its disclosure obligations, a risk would arise that privileged communications would be exposed to the Prosecution to the detriment of the Defendants. This creates a conflict for the Prosecution, which must meet its disclosure obligations under Rules 66 and 68 of the Rules while currently in possession of the Potentially Privileged Material [the potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010].

8. Despite it being within the ambit of the Appeals Chamber to review the Potentially Privileged Material, there also exists a risk that communications between any of the Defendants and their legal counsel could be revealed to the Appeals Chamber. Additionally, as the Potentially Privileged Material comprises a voluminous amount of documentation,[1] should the Appeals Chamber review the Potentially Privileged Material there will be a considerable delay in the appellate proceedings. In light of the above, and out of concern for efficiency and expeditiousness, the Appeals Chamber considers that the best course of action under the circumstances presented is for a Judge of the Tribunal not sitting on the Popović et al. Bench to review the Potentially Privileged Material in order to determine whether lawyer-client privilege attaches to any of the material in question.

[1] See OTP Report of 29 January 2010 [Confidential OTP Report of Investigator Blaszczyk Tomasz [REDACTED] dated 29 January 2010, annexed to the Motion [Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege, 18 November 2011 (confidential with confidential annexes)], paras 2, 10.

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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
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Decision on Sanctions - 26.06.2009 NSHOGOZA Léonidas
(ICTR-07-91-A)

26. The Appeals Chamber recalls that neither the Statute nor the Rules provide a right of appeal from sanctions imposed pursuant to Rule 46 of the Rules.[1] Accordingly, a Trial Chamber’s exercise of its discretion under that rule is not subject to review by the Appeals Chamber. However, in the instant case, the Counsel not only challenges the particulars of the Trial Chamber’s exercise of its discretion to impose the impugned sanctions, but also questions the Trial Chamber’s jurisdiction to impose pecuniary sanctions at all under Rule 46 of the Rules. While the Appeals Chamber has no jurisdiction to entertain the appeal from sanctions per se, it does have jurisdiction to consider this latter issue.

27. Rule 46(A) does not explicitly specify the scope for sanctions applied under its authority. The measures identified in paragraphs B and C of Rule 46 are only specific examples of potential means by which a Chamber may sanction a counsel. Nonetheless, the absence of explicit limitations on the sanctions deployed under Rule 46 of the Rules does not mean that the Trial Chamber is free to pronounce any disciplinary measures it deems appropriate.

28. In order to identify the scope of sanctions permitted under Rule 46 of the Rules, it is necessary to consider the rule’s context. The text of Rule 46 itself contains no reference to pecuniary sanctions, even though it does list several potential disciplinary measures. Similarly, the equivalent ICTY rule addressing “Misconduct of Counsel” explicitly limits sanctions to particular penalties which do not include fines.[2] By contrast, other rules, such as Rule 77(G) of the Rules (addressing contempt of the Tribunal), specifically provide for fines in cases of misconduct by individuals, including attorneys.[3] Likewise, Rule 73(F) of the Rules provides that a Chamber may order the non-payment of fees if a counsel brings a motion that is frivolous or an abuse of process.  

29. This examination demonstrates that pecuniary sanctions are not within the permitted scope of penalties that may be applied under Rule 46 of the Rules. The text of the rule itself does not refer to pecuniary sanctions, while provisions such as Rule 77(G) of the Rules provide the means for punishing an attorney’s misconduct through fines where that is deemed appropriate.[4] Given the absence of clear parameters regarding the scope of sanctions permitted under Rule 46, and the context of the Rules, the Appeals Chamber finds that the Trial Chamber acted outside its jurisdiction in imposing pecuniary sanctions on the Counsel pursuant to Rule 46(A) of the Rules.

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008, 30 January 2009, para. 11.

[2] In its relevant part, Rule 46 of the International Criminal Tribunal for Former Yugoslavia (ICTY) Rules of Procedure and Evidence provides as follows:

(A) If a Judge or a Chamber finds that the conduct of a counsel is offensive [...], the Chamber may, after giving counsel due warning:

(i) refuse audience to that counsel; and/or

(ii) determine, after giving counsel an opportunity to be heard, that counsel is no longer eligible to represent a suspect or an accused before the Tribunal pursuant to Rule 44 and 45;

(B) A Judge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in the counsel’s State of admission or, if a university professor of law and not otherwise admitted to the profession, to the governing body of that counsel’s University.

[3] See also Rule 91(G) of the Rules addressing false testimony under solemn declaration.

[4] The Appeals Chamber notes that the Trial Chamber repeatedly threatening to hold the Counsel in contempt. SeeT. 11 March 2009 pp. 9, 11.

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ICTR Rule Rule 46 ICTY Rule Rule 46
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Decision on Arrest of Counsel - 06.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […]

19. […] The Appeals Chamber considers that Defence Counsel fall within the category of persons required at the seat or meeting place of the Tribunal and as such must be accorded such treatment as is necessary for the proper functioning of the Tribunal. The proper functioning of the Tribunal requires that Defense Counsel be able to investigate and present arguments in support of their client’s case without fear of repercussions against them for these actions. Without such assurance, Defense Counsel cannot be reasonably expected to adequately represent their clients.

20. Additionally, the Memorandum of Understanding between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office in Rwanda of the International Tribunal for Rwanda of 3 June 1999 (“Memorandum of Understanding”),[1] which governs the privileges and immunities of the Tribunal’s operations in Rwanda, should also be taken into account. Of particular relevance to the present situation, the Memorandum of Understanding provides that the government of Rwanda shall extend:

To other persons assigned to the Office whose names shall be communicated to the Government of Rwanda for that purpose, the privileges and immunities accorded to experts on mission for the United Nations, in accordance with Article VI of the Convention.[2]

With respect to whether Defense Counsel fall within the meaning of “other persons assigned to the Office”, the Appeals Chamber notes that while Defense Counsel are not employees of the Tribunal they are assigned or appointed by the Tribunal to their positions as Defense Counsel. Furthermore, the procedures associated with Defense Counsel going on mission to Rwanda indicate that the Tribunal considers Defense Counsel to be acting in official capacity and on assignment in association with the Tribunal. For instance, Defense Counsel may request logistical support from the Tribunal while performing their missions in Rwanda.

21. The Appeals Chamber further notes that the Memorandum of Understanding sets out the rights and facilities granted to the Tribunal by the Government of Rwanda on its territory. These rights and facilities include various access rights such as the “right to question victims and witnesses, to gather evidence and all useful information and to conduct investigations in the field”.[3] The Appeals Chamber considers that, as the rights of access to undertake investigations are fundamental to the preparation of the Defence case, in concluding the Memorandum of Understanding it was contemplated that it applied to Defence Counsel as well as officials of the Tribunal. Indeed, if the Memorandum of Understanding did not extend to Defence Counsel, the right of equality of arms would be meaningless as the Defence would have no guarantee of access to potential witnesses and evidence to allow them to prepare their case.

22. In light of the procedural practice of the Tribunal as well as the purpose of the Memorandum of Understanding, the Appeals Chamber finds that Defence Counsel fall within the meaning of “other persons assigned to the Office” and therefore are to be accorded the privileges and immunities due to experts performing missions for the United Nations pursuant to Article VI of the Convention.[4]

23. This is further supported by the interpretation of the International Court of Justice as to who can be considered an expert according to Section 22 of the Convention:

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them ‘such privileges and immunities as are necessary for the independent exercise of their functions’. The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.[5]

Applying this reasoning to Defence Counsel on mission, the Appeals Chamber concludes that they are to be considered experts on mission within the meaning of the Convention. While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission – not their administrative status with the Tribunal.

24. The Appeals Chamber also notes that the response of the Prosecutor General of Rwanda to the Registrar’s invocation of the Memorandum of Understanding as affording to persons carrying out functions on behalf of the Tribunal, such as Defence Counsel, the immunities provided for in Article VI of the Convention[6] reflects support for the application of the relevant provisions of the Memorandum of Understanding to Defence Counsel of the Tribunal operating in Rwanda: “[…] I wish to state on record, that [Erlinder’s] arrest is not at all related to his assignments at the ICTR and that we remain in full compliance with the provisions of the memorandum of understanding [g]overn[]ing our cooperation”.[7]

25. Article VI of the Convention provides that experts performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions. In particular, Section 22 of Article VI of the Convention, invoked in the Registrar’s note verbale of 15 June 2010,[8] provides that:

Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded:

(a) Immunity from personal arrest or detention and from seizure of their personal baggage;

(b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations; […]

26. Accordingly, Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence Counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute. […]

27. The Appeals Chamber recalls that, at the time of his arrest, Erlinder was not in Rwanda in his capacity as Ntabakuze’s Defence Counsel. He was therefore not immune from personal arrest or detention as provided for under Section 22(a) of Article VI of the Convention. Nonetheless, Erlinder benefits from immunity from legal process in respect of words spoken or written and acts done by him in the course of his representation of Ntabakuze before the Tribunal.

[…]

30.    The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[9] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

[1] United Nations Treaty Series vol. 2066, p. 5.

[2] Memorandum of Understanding, para. 2, referring to Convention on the Privileges and Immunities of the United Nations, adopted by General Assembly Resolution A/RES/22(I)A, 13 February 1946 (“Convention”).

[3] Memorandum of Understanding, para. 3(vi). Other rights provided for include the freedom of movement in Rwanda, right of access to prisons, the right to access all documents the consultation of which may be necessary for the smooth functioning of the Office, the right to make direct contact with national and local authorities, including the armed forces, individuals, intergovernmental and non-governmental organisations, private institutions and the media. Memorandum of Understanding, para. 3(ii)-(v), (vii).

[4] Convention on the Privileges and Immunities of the United Nations, adopted by General Assembly Resolution A/RES/22(I)A, 13 February 1946.

[5] Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, para. 47.

[6] Registrar’s Submissions of 11 June 2010 [Registrar’s Submissions Under Rule 33 (B) of the Rules of Procedure and Evidence in Respect of the Appeals Chamber Order to the Registrar Dated 9 June 2010, dated 10 June 2010, filed 11 June 2010], Annex 1: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 31 May 2010 (“The ICTR attaches the utmost importance to the respect of the immunity which Defence Counsel assigned to cases before [the] ICTR enjoy, when they carry out the mandate vested on them by [the] ICTR. [… The] ICTR wishes to recall the 3 June 1999 Memorandum of Understanding (MOU) Between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to The Office in Rwanda of the International Criminal Tribunal for Rwanda. Pursuant to the said MOU, Rwanda will extend to persons carrying out functions on behalf of [the] ICTR, including experts on mission, the same privileges and immunities, as provided for in Articles VI and VII of the General UN Convention on the Privileges and Immunities to which the Republic of Rwanda is a party.”). See also Registrar’s Submissions of 15 June 2010 [Further Registrar’s Submissions Under Rule 33 (B) of the Rules of Procedure and Evidence in Respect of the Appeals Chamber Order to the Registrar Dated 9 June 2010, 15 June 2010], Annex: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 15 June 2010.

[7] Registrar’s Submissions of 11 June 2010, Annex 2: Correspondence from Mr. Martin Ngoga, Prosecutor General of Rwanda, to the Registrar of the Tribunal dated 2 June 2010. See also Registrar’s Submissions of 15 July 2010, para. 9 (“The Rwandan Prosecutor General also stressed that Mr. Erlanger’s arrest was not based on his work before this Tribunal and clarified that he would respect any conflicting judicial finding of the ICTR. In this respect, he indicated to the President of the ICTR that he stands ready to remove any disclosed documents that might be deemed to be linked to the ICTR business.”).

[8] Registrar’s Submissions of 15 June 2010, Annex: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 15 June 2010.

[9] Registrar’s Submissions of 15 July 2010, para. 9. 

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ICTR Statute Article 29 ICTY Statute Article 30 ICTR Rule Rule 54
Rule 107
Other instruments Convention on the Privileges and Immunities of the United Nations. Memorandum of Understanding Between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office of Rwanda of the ICTR of 3 June 1999.
Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

120. The Appeals Chamber would emphasise that Defence Counsel appearing before the Tribunal have a duty of diligence. This duty is expressly set forth in the Code of Professional Conduct for Defence Counsel (the "Code of Conduct") adopted by the Judges of the Tribunal under Article 14 of the Statute. Article 6 of the Code of Conduct states that:

"Counsel must represent a client diligently in order to protect the client’s best interests. Unless the representation is terminated, Counsel must carry through to conclusion all matters undertaken for a client within the scope of his legal representation." (Emphasis added.)

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Other instruments Code of Professional Conduct for Defence Counsel (ICTR);
Article 6
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Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

10. It has been repeatedly emphasized that the right to legal assistance financed by the Tribunal does not confer the right to counsel of one’s choosing.[1] When deciding on the assignment of counsel, some weight is accorded to the accused’s preference, but such preference may be overridden if it is in the interests of justice to do so.[2] The Appeals Chamber further recalls that an indigent accused does not have a right to a co-counsel, but, where appropriate and at the request of the lead counsel, the Registrar may appoint a co-counsel to assist the assigned lead counsel.[3] Accordingly, where co-counsel has been appointed and subsequently withdrawn, there is no guarantee that the co-counsel will be replaced.[4] Finally, the Appellant’s personal preferences are irrelevant to assignment or withdrawal of co-counsel.[5]

[1] Blagojević Appeal Decision, para. 22 and footnote 54; 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; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 61; Jean Kambanda v. The Prosecutor, Case No. ICTR 97-23-A, Judgement, 19 October 2000, para. 33. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24 March 2005 (“Bagosora Decision of 24 March 2005”), para. 21; Bagosora Decision of 19 January 2005, para. 45; The Prosecutor v. Tharcisse Muvunyi et al., Case No. ICTR-2000-55-I , Decision on the Accused’s Request to Instruct the Registrar to Replace Assigned Lead Counsel, Article 20(4)(d) of the Statute and Rules 45 and 73 of the Rules of Procedure and Evidence, 18 November 2003, para. 6.

[2] Barayagwiza Decision, p. 3; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojjić Against Trial Chamber Decision on Request for Appointment of Counsel, 24 November 2004, para. 19; Blagojević Appeal Decision, para. 22; Akayesu Appeal Judgement, para. 62. See also Bagosora Decision of 24 March 2005, para. 21; Blagojević Trial Decision, paras 86, 117; Prosecutor v. Duško Knežević, Case No. IT-95-4-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002, p. 3; The Prosecutor v. Gérard Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Decision on the Motions of the Accused for Replacement of Assigned Counsel/Corr., 18 June 1997, p. 5.

[3] Directive, Article 15(C) and (E). See The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Defence Oral Motion for Adjournment of the Proceedings, 8 October 2004, para. 6 ; Le Procureur c. Aloys Simba, Affaire no ICTR-01-76-I, Décision portant report de la date d’ouverture du procès, 18 août 2004, para. 24 ; Blagojević Trial Decision, paras 77, 79, 118; Prosecutor v. Radislav Brđanin, Case No. IT-99-36-T, Confidential Order Relating to Lead Counsel’s Appeal from Registrar’s Confidential Decision of 7 March 2003, 1 April 2003, p. 7.

[4] Blagojević Trial Decision, para. 79.

[5] Cf. Blagojević Appeal Decision, para. 54.

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

16. Furthermore, the Appeals Chamber notes that proceedings in this appeal have been delayed for a significant time,[1] notably as a result of changes in the representation of the Appellant.[2] The Appeals Chamber also notes that the request for withdrawal of Co-Counsel came at a late stage of the proceedings, after the Appellant has filed his Reply Brief. At this stage, the introduction of a new co-counsel, unfamiliar with the case, will inevitably result in undue delay,[3] given that this person will require some time to get familiar with the case and its documents.[4] An unnecessary replacement of the current Co-Counsel who is thoroughly familiar with the case and who has already dedicated hundreds of hours to the Appellant’s appeal would be detrimental to the Appellant’s right to be tried fairly and expeditiously.[5] The Appeals Chamber thus finds that the Registrar and the President did not err in taking these factors into account.[6]

[1] Decision on Jean Bosco Barayagwiza’s Motion Concerning the Registrar’s Decision to Appoint Counsel, 19 January 2005, p. 3.

[2] See supra, paras 3-4. As a result of the change of Lead Counsel as well as the appointment of a new Defence team, including the current Co-Counsel, the current versions of the Appellant’s Notice of Appeal and Appellant’s Brief were filed as late as 12 October 2005, i.e. almost two years after the Trial Judgement.

[3] See Bagosora Decision, para. 22; Blagojević Trial Decision, para. 119.

[4] Prosecutor v. Radislav Brđanin, Case No. IT-99-36-T, Decision on Defence Motion for Adjournment, 10 March 2003, p. 2.

[5] Cf. Blagojević Appeal Decision, para. 50.

[6] Registrar’s Submissions, para. 12; President’s Decision, paras 6 and 8. 

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Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19.
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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

21. Pursuant to Article 20(4)(d) of the Statute, an accused has the right to be represented by competent counsel. Counsel is “considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.” The Appeals Chamber recalls that Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel. The presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of counsel to succeed, an appellant must rebut the presumption of competence by demonstrating gross professional misconduct or negligence on the part of the counsel which occasioned a miscarriage of justice.

22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case. Thus, where an accused claims that his right to competent assistance from counsel is violated, the onus is on the accused to bring this violation to the attention of the Trial Chamber. If the accused does not do so at trial, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act. He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.

[1] See supra [Trial Judgement, Annex A – Procedural History] para. 22.

[2] See supra para. 22.

[3] Krajišnik Appeal Judgement, para. 42.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

29. […] the Appeals Chamber finds that the Appellant should have raised the issue of the Co-Counsel’s competence at trial. However, as noted above, the Appellant is not precluded from raising the issue for the first time on appeal. As such, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to intervene and he must further demonstrate that the Trial Chamber’s failure to act occasioned a miscarriage of justice.

44. […] The Appeals Chamber considers that the manner in which counsel structures a cross-examination is a matter of defence strategy which rests squarely within the discretion of the defence. This is consistent with the general principle that it is is not for the Trial Chamber to dictate to a party how to conduct its case.[3] Furthermore, the Appeals Chamber cannot analyse defence strategy in a vacuum after the completion of trial, nor would it be appropriate for the Appeals Chamber to do so. It follows that it is not sufficient for the Appellant merely to assert after the completion of trial that his Co-Counsel was incompetent because he did not adopt a different approach during the cross-examination of a given witness. At a minimum, the Appellant should demonstrate how a different approach would have had a positive impact on the verdict.

[1] See supra [Trial Judgement, Annex A – Procedural History] para. 22.

[2] See supra para. 22.

[3] Krajišnik Appeal Judgement, para. 42.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

19. The Appeals Chamber previously explained that the matter of alleged fee-splitting had no bearing on the Trial Chamber’s decision to maintain Blagojević’s assigned counsel.[1] The Appeals Chamber nonetheless considered the nature and possible impact of such an allegation on the lawyer-client relationship “for completeness and to ensure finality”.[2] The Appeals Chamber noted that the assigned counsel did not breach any client confidence by raising the issue of fee-splitting, as he was ethically bound to bring such issues to the attention of the Registrar.[3] The Appeals Chamber also determined that this issue should not unduly impact the relationship, in particular, noting that Mr. Karnavas did not place blame on Blagojević for attempting to enter into a fee-splitting arrangement and instead explained that it resulted from “family pressures”.[4] The Appeals Chamber observed that this was consistent with Blagojević’s own explanation.[5] A review of the transcripts of the status conference pointed to by Blagojević does not, contrary to his submissions, indicate that Mr. Karnavas admitted to falsely accusing him of trying to engage in fee-splitting. Rather, Mr. Karnavas simply made clear, consistent with the submissions previously considered by the Appeals Chamber, that he never accused Blagojević himself of trying to engage in fee-splitting.[6]

21. Blagojević’s own submissions under the present ground of appeal reflect that the continued breakdown during the trial and the resulting complaints about the conduct of his defence also resulted from his unilateral refusal to communicate with his counsel, rather than from any action on the part of his counsel and Defence team.[7] The Trial Chamber’s decision on Blagojević’s request to testify is exemplary of Mr. Karnavas’s continued willingness to meet with and assist him and of Blagojević’s unilateral resistance to any cooperation.[8] The Appeals Chamber considers that an appellant cannot premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings.

[1] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, [Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Ex Parte and Confidential Reasons for Decisions on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], para. 45.

[2] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 9-11, 42.

[3] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 46.

[4] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 47.

[5] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 47.

[6] T. 11858 (“I just want to reiterate, one, I have done nothing for which I need to explain or apologise. I have never divulged any attorney/client privileges, nor have I ever accused Mr. Blagojević of making any attempts to fee split as he seems to indicate. I've never accused him of that, nor has he ever made any efforts himself. So I want to make sure that's very clear on the record. I have nothing more, Your Honour.”).

[7] Blagojević Appeal Brief, para. 2.33 (“[…] the Decisions of both Trial Chamber and the Appeals Chamber were passed when the trial was at the beginning […] and […] it was expected that the rebuilding of confidence between the Accused and Mr. Karnavas would take place during the course of the trial or at least up to the beginning of the Defence case. It did not happen since the Accused stayed at his opinion against imposing Mr. Karnavas as his Defence counsel as from the very beginning[…]. Expectations that the change will take place in any of the procedure stage was really without any grounds.”); AT. 96 (“[Blagojević] abided by his position that he could have no contact with the counsel who had been appointed by the Registry against his will.”); AT 126 (“this was a complete breakdown of communication, making it impossible to cooperate because of the accusations that were made. After the serious accusation was made, no further contact was possible until the end of the trial.”).

[8] See, e.g., Blagojević and Jokić, Decision on Vidoje Blagojević’s Oral Request, [Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998],  pp. 8-10 (“Considering Therefore that the Trial Chamber ordered the Accused to meet with Mr. Karnavas to discuss the three options available to him[…]. Considering that the Accused refused to meet with Mr. Karnavas, as instructed by the Trial Chamber[…]. Considering that Mr. Karnavas indicated he would be prepared to proceed with the direct examination on the next day of the proceedings, indicating that it would be Mr. Blagojević’s choice of whether to prepare for the direct examination with him[…]. Considering that after the Accused indicated that he needs preparation before his testimony but would not conduct any preparations with Mr. Karnavas […] the Accused responded that he would not answer any questions put to him on direct examination by Mr. Karnavas.”).

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Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

23. A participant in the International Tribunal’s legal aid system has the right to competent assigned counsel.[1] An assigned counsel is presumed to be competent and such a presumption can only be rebutted by evidence to the contrary.[2] Among other things, an appellant must demonstrate “gross incompetence” on the part of the assigned counsel.[3]

25. As a general matter, in his submissions Blagojević simply disagrees or complains about decisions made by his counsel.[4] Moreover, Blagojević’s complaints about his counsel’s performance during trial stem from his refusal to communicate with his counsel and instruct his Defence team. The Appeals Chamber considers that this is not an acceptable basis for challenging counsel’s conduct. His cursory submissions therefore fail to demonstrate that his counsel’s performance constituted “gross incompetence”.

[1] Akayesu Appeal Judgement, para. 76. See also Halilović, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table [Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005], paras. 61, 62. See also Rules, Rule 45(A)-(B); Directive on Assignment of Defence Counsel, Article 14.

[2] Akayesu Appeal Judgement, paras. 77, 78. See also Tadić, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence [Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998], para. 48.

[3] Akayesu Appeal Judgement, paras. 77, 78, 80. See also Tadić, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, para. 49.

[4] See, e.g., Blagojević Appeal Brief, paras. 2.16-2.20; AT. 96 (“Mr. Blagojević had no influence on the course of the trial during the Prosecution case; and, which is far worse, he had no influence in the course of the Defence case, which was handled by a team of counsel imposed on him without his knowledge and influence. That is why some witnesses of the so-called Defence were hostile and detrimental to his case. These, however, are details.”).

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Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

14. The Appeals Chamber ultimately confirmed that as a participant in the International Tribunal’s legal aid program, Blagojević did not have the absolute right to choose his counsel;[1] that the Registrar had properly assigned competent counsel committed to representing Blagojević’s interests;[2] that good cause did not exist for removing his duly assigned defence team;[3] and that he was not justified in unilaterally refusing to cooperate with his lawyers.[4] […]

17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel.[5] While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice.[6] Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.[7]

[1] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team [Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Ex Parte and Confidential Reasons for Decisions on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], paras. 22, 33, 54.

[2] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 54.

[3] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 16-22, 24-33, 42-54.

[4] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 31, 51, 54.

[5] Rules, Rule 45; Directive on Assignment of Defence Counsel, Articles 6 and 11(D)(i).

[6] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 22 fn. 54. See also Mejakić et al., Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić [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. 8; Nahimana et al., Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006], para. 10; Akayesu Appeal Judgement, para. 61; Kambanda Appeal Judgement, para. 33.

[7] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 52, 54.

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ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

14. The Appeals Chamber ultimately confirmed that as a participant in the International Tribunal’s legal aid program, Blagojević did not have the absolute right to choose his counsel;[1] that the Registrar had properly assigned competent counsel committed to representing Blagojević’s interests;[2] that good cause did not exist for removing his duly assigned defence team;[3] and that he was not justified in unilaterally refusing to cooperate with his lawyers.[4] […]

17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel.[5] While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice.[6] Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.[7]

[1] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team [Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Ex Parte and Confidential Reasons for Decisions on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], paras. 22, 33, 54.

[2] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 54.

[3] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 16-22, 24-33, 42-54.

[4] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 31, 51, 54.

[5] Rules, Rule 45; Directive on Assignment of Defence Counsel, Articles 6 and 11(D)(i).

[6] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 22 fn. 54. See also Mejakić et al., Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić [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. 8; Nahimana et al., Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006], para. 10; Akayesu Appeal Judgement, para. 61; Kambanda Appeal Judgement, para. 33.

[7] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 52, 54.

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Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

21. The Trial Chamber characterized Mr. Nzirorera’s motion as “vexatious” and “frivolous” and noted that it showed disrespect for the Trial Chamber.[1] It then denied fees in addition to dismissing the motion.[2] The Appeals Chamber has held that the power to impose sanctions on counsel should be imposed cautiously.[3] It is most appropriate where a motion is frivolous or an abuse of process. The Appeals Chamber has previously held that there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.[4] However, the specific situation in this instance is different. Since Judge Byron was both the Judge and subject of the underlying disclosure dispute, the Appeals Chamber considers that the decision is subject to independent review.[5]

22. A review of the pleadings underlying the Impugned Decision does not reflect that counsel for Mr. Nzirorera submitted a disrespectful or frivolous application.[6] As the Appeals Chamber held above, the Statute and Rules do not foreclose a party from seeking limited disclosure from a Judge on matters related to disqualification. In his submissions at trial and on appeal, Mr. Nzirorera pointed to one jurisdiction where providing an assessment could require a Judge to withdraw. Additionally, the Tribunal has not had the occasion to consider this issue previously. Therefore, it cannot be said that there was no good faith legal basis for making the request for disclosure. Furthermore, the Appeals Chamber has rejected the Trial Chamber’s characterization of the assessment as constituting judicial function, which was one of the reasons for describing the motion as disrespectful. In view of the foregoing, the Appeals Chamber considers that the decision to deny fees associated with the motion was unreasonable. Thus, the Trial Chamber made a discernible error in this respect.

[1] Impugned Decision, paras. 7, 8.

[2] Impugned Decision, para. 9, p. 4.

[3] François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Decision on the Appellant’s Request to Admit Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2008, para. 14; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on Request to Admit Additional Evidence of 1 August 2008, 1 September 2008, para. 12.

[4] Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, 11 June 2004, p. 2 (“[A] decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73(F) of the Rules is not subject to appeal under the Statute of the International Tribunal or the Rules”); Decision on Counsel’s Appeals From Rule 73(F) Decisions, 9 June 2004, p. 3 (“[N]either the Statute nor Rules provide for a right of appeal from sanctions imposed pursuant to Rule 73(F) of the Rules”).

[5] Cf. Nahimana et al. Appeal Judgement, paras. 73, 74.

[6] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Joseph Nzirorera’s Motion for Disclosure of Letter of Recommendation, 1 December 2008; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Reply Brief: Joseph Nzirorera’s Motion for Disclosure of Letter of Recommendation, 8 December 2008.

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ICTR Rule Rule 73(F) ICTY Rule Rule 73(D)
Notion(s) Filing Case
Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

171. The Respondent is on the list of assigned counsel kept by the Registrar in accordance with Rule 45. The Registrar has power pursuant to Article 20 of the Directive on Assignment of Defence Counsel to strike any counsel off that list where he or she has been refused audience by a Chamber in accordance with Rule 46, and to notify the professional body to which that counsel belongs of the action taken in relation to his or her conduct[1]. The Respondent’s conduct as found by the Appeals Chamber in these proceedings is substantially worse than that which permits the Registrar to strike counsel off the list pursuant to Article 20 of the Directive.

172. In the opinion of the Appeals Chamber, the Registrar has power generally to strike the Respondent off the list of assigned counsel because of his serious professional misconduct as demonstrated by the Appeals Chamber’s findings. A direction will therefore be given to the Registrar to consider striking the Respondent off the list and reporting his conduct as found by the Appeals Chamber to the professional body to which he belongs.

See also para. 166.

NOTE: THE VERSION OF ARTICLE 20 OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL IN FORCE AS OF JULY 2013 PROVIDES, INTER ALIA, AS FOLLOWS:

(C) The Registrar shall withdraw the assignment of counsel:

(i) upon a decision of a Chamber under Rule 46(A)(ii); or

(ii) where counsel no-longer satisfies the requirements of Article 14(A); or

(iii) where counsel has been found to be in contempt pursuant to Rule 77 of the Rules, unless the Chamber rules that the assignment should continue.

       Where the assignment of counsel has been withdrawn pursuant to Article 20(C)(ii), counsel may seek review of the Registar’s decision before the President within fifteen days from the date upon which he is notified of that decision.

(D) In such cases, the withdrawal or suspension shall be notified to the accused, to the counsel concerned, to the association of counsel of which he is a member, and to his professional or governing body.

[1] AT THE TIME OF THIS JUDGMENT, ARTICLE 20 (B) AND (C) OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL PROVIDED:

(B)  The Registrar shall withdraw the assignment of counsel:

(i)    upon the decision by a Chamber to refuse audience to assigned counsel for misconduct under Rule 46 (A);

(ii)   where counsel no-longer satisfies the requirements of Article 14 (A).

(iii)   Under such circumstances, the Registrar may strike counsel off the list of defence counsel mentioned in Rule 45.

(C)  In such cases the withdrawal shall be notified to the accused, to the counsel concerned and to his professional or governing body.

 

FURTHER AMENDMENTS WERE MADE TO THE PROVISONS RELATED TO THE WITHDRAWAL AND SUSPENSION OF COUNSEL (ARTICLES 19 AND 20) IN THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL IN DECEMBER 2000, JULY 2002, AND JUNE 2006.

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ICTY Statute Article 20(1);
Article 21(4)(d)
Other instruments Directive on the Assignment of Defence Counsel
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 Additional Evidence - 08.09.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

17. […] The Appeals Chamber finds that Milošević’s Counsel’s failure to at least attempt to satisfy any of the requirements of Rule 115 of the Rules, especially after his previous motions filed under the same provision were rejected for similar reasons,[1] amounts to professional negligence. The Appeals Chamber thus finds the Motion frivolous in the sense of Rule 73(D) of the Rules[2] and issues a warning to Milošević’s counsel under Rule 46(A) of the Rules.

[…]

21. For the foregoing reasons, the Appeals Chamber DISMISSES the Motion in its entirety, FINDS the Motion to be frivolous and IMPOSES A SANCTION against Milošević’s Counsel, pursuant to Rule 73(D) of the Rules, in the form of non-payment of fees associated with the Motion.

[1] Decision on Second Motion [Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009], paras 18-20.

[2] Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 19. 

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ICTR Rule Rule 46;
Rule 73(F)
ICTY Rule Rule 46;
Rule 73(D)
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

42. As recently recalled by the Appeals Chamber:

A participant in the International Tribunal’s legal aid system has the right to competent assigned counsel. An assigned counsel is presumed to be competent and such a presumption can only be rebutted by evidence to the contrary. Among other things, an appellant must demonstrate “gross incompetence” on the part of the assigned counsel.[1]

The Appeals Chamber further recalls that unless gross negligence is shown in the conduct of defence counsel, due diligence as a matter of professional conduct of counsel will be presumed.[2] In addition, while a Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused (Article 20(1) of the Statute), it is not for the Trial Chamber to dictate to a party how to conduct its case. If an accused believes that his right to effective assistance is being infringed by the conduct of his counsel, it is his responsibility to draw the Trial Chamber’s attention to the problem. If this was not done at trial, he can only be successful on appeal upon showing that the counsel’s incompetence was manifest and that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.[3]

In the context of the present appeal, the Appeals Chamber examined an array of allegations concerning the alleged incompetence and/or negligence of Krajišnik’s Counsel at trial, including commencing a case when manifestly unprepared, failure to utilise the pre-trial resources allocation properly, failure to review disclosure materials adequately, failure to work full time on the case during the trial period, failure to develop or implement a defence strategy, failure to test Prosecution evidence adequately, failure to properly select Defence witnesses to be called, failure to appeal decisions, counsel’s desinterest in the case, etc., but concluded that gross professional negligence was not shown (paras 44-72, 392-415).

[1] Blagojević and Jokić Appeal Judgement, para. 23 (footnotes omitted). See also Nahimana et al. Appeal Judgement, para. 130. 

[2] Prosecutor v. Duško Tadić, Case No. 94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998, para. 48.

[3] Nahimana et al. Appeal Judgement, para. 131.

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Notion(s) Filing Case
Decision on Nathan Dershowitz Participation - 08.09.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

10. With respect to the request for an extension of time, the Appellant argues that Mr. Alan M. Dershowitz has commenced teaching responsibilities at HarvardLawSchool on 2 September 2008.[1] The Appeals Chamber gathers from this submission that the Appellant is arguing that due to these teaching responsibilities, Mr. Alan M. Dershowitz will not be able to participate in the interview with Radovan Karadžić at a time that would allow the Appellant to file a motion pursuant to Rule 115 of the Rules by 15 September 2008. The Appeals Chamber recalls that a counsel in a case before the Tribunal is under an obligation to give absolute priority to his commitments to the Tribunal and to observe the time limits in the Rules[2] or in an order of a Chamber. Furthermore, the Appeals Chamber recalls that “other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their client and the International Tribunal”.[3] In these circumstances, the Appellant has not shown good cause for the extension of time sought.

[1] Motion, para. 3.

[2] Cf. Emmanuel Ndindabahizi v. The Prosecutor, ICTR-01-71-A, Decision on “Requête urgente aux fins de prorogation de délai pour le dépôt du mémoire en appel”, 1 April 2005, p. 3.

[3] Prosecutor v. Momir Nikolić, IT-02-60/1-A, Decision on Second Defence Motion to Enlarge Time for Filing of Replies, 1 April 2005, p. 4.

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Notion(s) Filing Case
Rule 115 Decision (Former Counsel) - 06.11.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

28. Accordingly, the Prosecution’s request for a ruling on waiver is not supported by the need to appoint an investigation or to order access. Moreover, the Appeals Chamber does not consider the requested ruling on waiver necessary, at this juncture, in order to enable Mr. Nicholas Stewart QC to testify. Insofar as Mr. Nicholas Stewart QC’s testimony may conflict with his obligations under Rule 97 of the Rules, the Appellant will be present in court to personally state whether he waives his lawyer-client privilege where necessary. The Prosecution’s request for a ruling on waiver of lawyer-client privilege at this point in time is thus dismissed. As a result, the Appeals Chamber need not address the Prosecution’s arguments on the consequences of such a waiver for the admissibility of evidence outside the trial record.[1]

[1] Response, para. 30.

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ICTR Rule Rule 97 ICTY Rule Rule 97
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1]

[1] See supra [Kalimanzira Appeal Brief] paras. 28, 29.

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

33. With respect to the right to choose one’s counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial[1]. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case[2] and concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules[3], read in conjunction with relevant decisions from the Human Rights Committee[4] and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[5] that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.

[1] Appellant’s Brief [Brief in support of the Consolidated Notice of Appeal, 3 March 2000], paras. 17 – 21.

[2] “Decision on the Motions of the Accused for Replacement of Assigned Counsel”, The Prosecutor v. Gérard Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T, 11 June 1997, p. 2 et seq.

[3] Textual analysis of subparagraph (d) of paragraph 4 of Article 20 of the Statute shows that the choice of assigned defence counsel is made, in any event, by an authority of the Tribunal, not the accused. This Article must be read in conjunction with Rule 45 of the Rules and Article 13 of the Directive on the Assignment of Defence Counsel, whereby the Registrar is the person authorized to make the choice. The Registrar therefore has no other obligation than to assign counsel whose name appears on the list of counsel who may be assigned, and is not bound by the wishes of an indigent accused.

[4] According to the Human Rights Committee, “article 14, paragraph 3 (d) [of the International Convention on Civil and Political Rights] does not entitle the accused to choose counsel provided to him free of charge”. Osbourne Wright and Eric Harvey v. Jamaica, Comm. No. 459/1991, 8 November 1995, UN Doc. CCPR/C/50/D/330/1988, para. 11.6.

[5] Article 6, subparagraph 3. C. of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) guarantees three rights, which may be exercised on mutually exclusive bases: to defend oneself in person or through legal assistance of one’s own choosing or, if one has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. See the account of developments in the exercise of these rights in Louis-Edmond Pettiti, Emmanuel Decaux, Pierre-Henri Imbert (eds.) La Convention Européenne des Droits de l’Homme, Commentaire article par article, (Economica, Paris, 1999) pp. 274-275. According to the Convention bodies, the right to legal assistance of one’s own choosing is not absolute (X v. United Kingdom, Eur. Comm. H.R., Judgement of 9 October 1978, Application No. 8295/78; Croissant v. Germany, Eur. Ct. H.R., Judgement (Merits) of 25 September 1992, Application No. 13611/88, Series A, no. 237-B, para. 29). It particularly does not apply when legal assistance is free. Indeed, Article 6 (3) (c) does not guarantee the right to choose the defence counsel who will be assigned by the court, nor does it guarantee the right to be consulted on the choice of the defence counsel to be assigned (X v. Federal Republic of Germany, Decision of 6 July 1976, Application No. 6946/75 and F v. Switzerland, Eur. Comm. H.R., Decision of 9 May 1989, Application No. 12152/86). In any event, the authority responsible for appointing counsel has broad discretionary powers: “[the right to counsel of one’s own choosing] is necessarily subject to certain limitations where free legal aid is concerned and also where […] it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel, the national courts must certainly have regard to the defendant’s wishes […]. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.” (Croissant v. Germany, op. cit. supra, para. 29).

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Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.
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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).

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23.    […] At the outset, the Appeals Chamber notes that the Trial Chamber was satisfied that no confidential information that would be potentially useful to the Appellant came into Prodanović’s and Sloković’s possession through Ademi. However, in light of the findings below, the Appeals Chamber agrees with the Trial Chamber that, in the circumstances of the present case, the fact that Ademi did not provide his Counsel with any such confidential information is without bearing, since this factor is not the only basis on which a conflict of interest can be reasonably anticipated.Indeed, where a Chamber can reasonably expect that, due to a conflict of interest, a counsel “may be reluctant to pursue a line of defence, to adduce certain items in evidence, or to plead certain mitigating factors at the sentencing stage, in order to avoid prejudicing another client”, it can no longer presume that counsel has fulfilled his or her professional obligations under the Code of Conduct and has the power and the duty to intervene in order to guarantee or restore the integrity of the proceedings without delay.[3]

24.    Also, while it is true that such conflicts of interest are more obvious in cases where counsel represents two accused who are, at least partly, charged with the same criminal acts, committed during the same period of time and in the same area,[4] this is clearly not the only situation where a conflict of interest may arise. In this regard, the Appeals Chamber emphasizes that the provisions of Article 14(D)(i) and (ii) of the Code of Conduct do not require that there be substantial relationship between matters in which the current clients are represented – what is prohibited is a simultaneous representation that will, or may reasonably be expected to, adversely affect the representation of either client. [See below in “Issues of particular interest” for application in the present case (command-subordinate relationship between clients]

49.    […] In any case, in light of the Appeals Chamber’s findings above, this solution [possibility of engaging a third lawyer for the purposes of cross-examination of Ademi] would not be sufficient to satisfy the duty of loyalty to a current or former client as it would constitute too limited an understanding thereof.[5] The Appeals Chamber also agrees with the observation made in a different case that “the defence cannot be compartmentalised, as is suggested, to get around a conflict situation”.[6]

[1] [Impugned decision] para. 17.

[2] Cf. First Miletić Decision, para. 33.

[3] See Prlić Trial Decision, paras 15-16. See also Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000): “‘adverse effect’ may be established with evidence that ‘some plausible alternative defense strategy or tactic’ could have been pursued, but was not because of the actual conflict impairing counsel’s performance”; Holloway v. Arkansas 435 U.S. 475, 489-490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978): “[j]oint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing […] [A] conflict may […] prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favourable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another”.

[4] See Prlić Trial Decision, para. 16; see also Prlić Appeal Decision, para. 24.

[5] Cf. First Miletić Decision, para. 35.

[6] Ibid. [First Miletić Decision], para. 34.

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55. The Appeals Chamber reiterates that “[o]ne of the limits to the accused’s choice [of counsel] is a conflict of interest affecting hiscounsel”.[1]

[1] Appeals Chamber Joinder Decision, para. 30 citing 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. 8.

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54.    […] The Trial Chamber did not consider the hardship element when ordering the Counsel to withdraw from the Appellant’s representation and the Appeals Chamber is not convinced that it was obliged to do so to the point where such an omission would constitute an abuse of discretion. The Appeals Chamber recalls that the question of prejudice was indeed discussed by the Trial and Appeal Chambers in their previous decisions related to the impact of the joinder on the Appellant’s right to have a counsel of his choice.[1] In the present instance, there is nothing that would oblige the Trial Chamber to consider this factor in relation to the conflict of interest.

55.    […] It further finds that, even though the replacement of counsel is generally likely to cause obvious inconveniences, including a delay in the proceedings, if the conflict of interests regarding the representation of the Appellant and Ademi is not resolved at the present stage of the proceedings, the administration of justice may be seriously prejudiced and have much more disastrous consequences in future.[2] The Appeals Chamber also notes that no imminent date has been established for the commencement of the trial in this case and, considering the current trial schedule of the International Tribunal,[3] it is not likely to commence within the next six months which the Appellant affirms to be necessary for the new counsel to get familiarized with the case.

[1] Decision on Joinder [ Prosecutor v. Ivan Čermak and Mladen Markač, Case No. IT-03-73-PT and Prosecutor v. Ante Gotovina, Case No. IT-01-45-PT, Decision on Prosecution’s Consolidated Motion to Amend the Indictment and for Joinder, 14 July 2006], para. 64 and Appeals Chamber Decision on Joinder [ Prosecutor v. Ante Gotovina and Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2, Decision on Interlocutory Appeals against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 30. The Appeals Chamber then noted that any potential prejudice arising from having new counsel (situation that could arise regardless the joinder) could be mitigated by allowing additional time.

[2] See supra, para. 16; cf. Prlić Appeal Decision, para. 32; Mejakić Decision, para. 14.

Also compare with Steel v. General Motors Corp., 912 F.Supp. 724, 746 (D.N.J. 1995): “The court emphasised that ‘only in extraordinary cases should a client’s right to counsel of his or her choice outweigh the need to maintain the highest of the profession.’”.

[3] See Assessment and Report of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, Provided to the Security Council Pursuant to Paragraph 6 of Council Resolution 1534 (2004), S/2007/283, 16 May 2007, paras 5 and 14 and Enclosures II, IV, XII.

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Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

17. […] After the question of whether the Appellant would in fact be a “necessary witness” was remitted to the Trial Chamber, pursuant to the Clarification Decision, the Trial Chamber found that it “reasonably foresees the likelihood that the Appellant will be called as a witness in this case because of his position as former Minister of Justice at the time of alleged crimes”.[1]

18. The Appeals Chamber finds no error in this conclusion. Article 26 of the Code of Professional Conduct only envisages that “Counsel shall not act as an advocate in a proceeding in which counsel is likely to be a necessary witness”.[2] The Appeals Chamber notes that because their trials have been joined, Gotovina, Cermak and Markač are in the same proceeding. Although the Prosecution did not envisage calling the Appellant as a witness, and Markač and Čermak appear to hold the view that their respective defence strategies will not involve calling the Appellant as a witness, Gotovina has not ruled out the possibility of calling him as a witness. Further, the Trial Chamber has not ruled out at this stage that it might choose to call him as a witness.[3]

19. In addition, should the Appellant be called to testify, the Trial Chamber is not precluded from using his evidence in support of or against Čermak or Markač.[4] The Appeals Chamber recalls that the Trial Chamber found that the cases of the three accused are inherently connected because they took place in the same geographic area, in the same time period and in the course of the same military operation, and that they were allegedly committed pursuant to the same joint criminal enterprise of which all three accused are alleged to be members.[5] On the basis of this factual nexus some of the evidence, including that of the Appellant, may be the same.

[1] [Second] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Decision on Finding of Misconduct of Attorney Miroslav [eparović, 6 March 2007], p. 8 (emphasis added).

[2] Emphasis in original.

[3] First Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Decision on Conflict of Interest of Attorney Miroslav Šeparović, 27 February 2007], p. 7.

[4] See Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of the Accused, 27 January 2006, paras 14 and 15.

[5] Appeals Chamber Decision on Joinder [Prosecutor v. Ante Gotovina, Case No. IT-01-45-AR73.1, Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Interlocutory Appeal Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 20.

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32. The Appeals Chamber agrees with the Trial Chamber that the giving of consent by Markač could not cure the conflict of interest between Markač and the Appellant in relation to his position as Minister of Justice tempore criminis.[1] Consent given by a potentially affected client to remove a conflict of interest with counsel is not conclusive of there being no conflict of interest.[2] Although the Trial Chamber resolved the conflict of interest in the Simić case by consent, the Trial Chamber in the present case was not bound to follow the Simić case.[3] In any event, the present case is distinguishable from that of Simić. First, the Appeals Chamber notes that the applicable provisions are different. At the time the decision in the Simić case was rendered, the Trial Chamber applied Article 9(5) of the Code of Professional Conduct which read: […]

Article 9(5) of the Code of Professional Conduct has since been amended and currently provides, as Article 14 (E) of the Code of Professional Conduct: […]

33. The Appeals Chamber has already found that the Appellant’s further representation of Markač is likely to irreversibly prejudice the administration of justice.[4] In addition, whereas in the Simić case, all the co-accused stated that there was no conflict of interest between them and counsel, Gotovina, in the present case, has not waived his right to call the Appellant as a witness and has clearly indicated that there is, in his view, a conflict of interest.

[1] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Decision on Conflict of Interest of Attorney Miroslav Šeparović, 27 February 2007], p. 8.

[2] Stojić Decision, para. 27.

[3] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2004, para. 114 (“The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.”)

[4] See supra, para. 28.

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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.

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24. As noted above, the Appellant has not denied personal knowledge of the relevant information which he has presented in his submissions that the Ministry of Justice was not responsible for the military courts. In these circumstances, the Appeals Chamber agrees with the Trial Chamber that his denial at this early stage of proceedings that it was the Ministry of Justice that was responsible for the military courts, thereby eliminating a defence strategy that was otherwise open to Markač, may be considered a significant indication of a conflict of interest. […]

38. In the present case, the Appellant, as counsel, has been found to have a personal interest on account of his previous position as Minister of Justice.[1] Further, because he has personal knowledge directly relevant to the crimes allegedly committed by the three accused in the Indictment, he is likely to be called as a necessary witness for one of the accused. Such a conflict affects the essential fairness of the trial to all accused persons in this case. Cumulatively, these factors make his continued representation of Markač incompatible with the best interests of justice. […]

[1] See para. 24 supra.

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28. As noted by the Trial Chamber, due to the compelling circumstances of the Appellant’s own personal interest in this case, the harm caused to Markač and the integrity of the proceedings if the Appellant were to continue as his counsel in the proceedings would clearly and demonstrably outweigh any hardship suffered by Markač as a result of the Appellant’s withdrawal as his counsel.[1] Furthermore, the Appeals Chamber notes that the Markač is also represented by co-counsel who will likely continue to represent him in the absence of one of the exceptions under Article 9(B) of the Code of Professional Conduct.

29. The Appeals Chamber further finds that, even though the Appellant’s withdrawal will inevitably cause a delay in the proceedings, there could be greater hardship to Markač at a later stage of the proceedings, should the conflict of interest regarding the Appellant’s representation of Markač not be resolved at the present stage. The Appeals Chamber notes in this respect that, for example, Gotovina’s Defence has not waived his right to call the Appellant as a witness and that therefore the Appellant could still face withdrawal pursuant to Article 26 of the Code of Professional Conduct. The Appeals Chamber is of the view that such situation is likely to irreversibly prejudice the administration of justice.

[1] First Impugned Decision, pp. 7 and 8.

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37. As previously stated by the Appeals Chamber, 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.[1] 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 is suggested in the present case, the accused’s choice might be overridden.[2]  It is established jurisprudence that one of the limits to the accused’s choice is the existence of a conflict of interest affecting his counsel.[3]

[1] Stojić Decision [FULL NAME], para. 19; Appeals Chamber Decision on Joinder [Prosecutor v. Ante Gotovina, Case No. IT-01-45-AR73.1, Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Interlocutory Appeal Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 30.

[2] Stojić Decision, para. 19.

[3] Stojić Decision, para. 19; see also 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.

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Decision, para. 27:

27.     […] The Appeals Chamber agrees with Gotovina that a counsel’s duty of loyalty to a client extends even to cases where a client is not a party to the litigation. As stated under Article 14(D)(i) and (ii) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal,

Counsel or his firm shall not represent a client with respect to a matter if: (i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client; (ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation [. . .]. 

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Regarding the Accused’s right to choose counsel, the Appeals Chamber, at para. 30, recalled that

[…] while the right to choose counsel is a fundamental right under Article 21(4)(b) and (d) of the Statute, this right is not without limits.[1] An accused may choose counsel, but this right does not guarantee that counsel will accept if chosen or always remain counsel for that accused due to a perceived conflict of interests that may arise or for any other reason. As previously stated by the Appeals Chamber, “[o]ne of the limits to the accused’s choice is a conflict of interest affecting his counsel.”[2]

[1] Prosecutor v. 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] Decision, para. 30, citing Prosecutor v. 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

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Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
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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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33.    The Appeals Chamber recalls that “consent provided by a potentially affected client or former client to remove a conflict of interests upon consultation with the counsel should generally be regarded as fully informed in the absence of an indication to the contrary”.[1] However, such presumption could only be made in this case if the Appellant and Ademi had been fully conscious of all possible implications, and possible limitations that their simultaneous representation could impose upon either of their defence strategies.[2] Having examined both Undertakings, the Appeals Chamber is of the view that the Appellant has not demonstrated any discernible error in the Trial Chamber’s findings, as they did not refer to any discussion on possible implications of such dual representation on any of the defence strategies with the exception of Ademi being potentially called as a witness in the present case.

34.    The Appeals Chamber also disagrees with the Appellant’s argument that the Trial Chamber should have ordered the Counsel to present new, more satisfactory, undertakings before rendering the Impugned Decision. The Trial Chamber was under no obligation to do so since the duty to inform promptly and fully each potentially affected client (current or former) and to take all steps to remove it or to obtain the full and informed consent of the said persons lies squarely upon the counsel.[3]

35.    In any case, the Appeals Chamber recalls that such consent, even if found to be fully informed, is not conclusive of there being no conflict of interest.[4] The fact that the Appellant agreed to common representation does not relieve the Trial Chamber of its responsibility to ensure that the integrity of the proceedings would be preserved if such representation is maintained.[5] In the present case, the Trial Chamber concluded otherwise and the Appeals Chamber has found no error in such conclusion.[6] Moreover, the Appeals Chamber finds that the Appellant’s consent is in fact of no relevance to the present issue, as the point of concern is whether, by participating in the Appellant’s defence, Prodanović and Sloković will be led into conflict with their professional responsibilities to Ademi.[7]

[1] Prlić Appeal Decision, para. 27 citing Prosecutor v. Milan Martić, Case No.: IT-95-11-PT, 2 August 2002, Decision on Appeal Against Decision of Registry, p. 7.

[2] Cf. Prlić Appeal Decision, para. 27 (emphasis added).

Also compare with Wheat v. United States, 486 U.S. 153, 162-163: “The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials […] A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored on the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them”.

[3] Article 14(E) of the Code of Conduct.

[4] Prlić Appeal Decision, para. 27; First Miletić Decision, para. 32.

[5] See supra, para. 16.

Also compare: United States v. Vasquez, 995 F.2d 40, 45 (5th cir. 1993); Wheat v. United States, 486 U.S 153, 162-163, 108 S.Ct. 1692, 1698-1699; United States v. Medina, 161 F.3d 867, 870 (5th Cir.1998), United States v. Rico, 51 F.3d 495, 511 (5th Cir. 1995): “In determining the validity of a waiver, the district court is afforded ‘substantial latitude in refusing waivers of conflicts of interest not only if an actual conflict is demonstrated, but in cases where a potential for conflict exists which may result in an actual conflict as the trial progresses’. The court must also evaluate the potential effect on the integrity of the judicial system”.

In the UK, such consent may also be found insufficient to save the professional from breaching fiduciary obligations to act for one client without being inhibited by the existence of the other client, and to avoid any actual conflict (whereby it is impossible to fulfil obligations to one client without breaching obligations to the other) (see Hollander C. and Salzedo S., Conflicts of Interest & Chinese Walls (London: Sweet & Maxwell, 2000), 98, 117–18).

The French case-law also defines situations where a client’s consent is without bearing on the counsel’s duty of loyalty : [] puisque les intérêts pécuniaires des deux époux étaient en opposition, l'accord allégué de M. Y… étant sans portée, en l’espèce, sur le devoir de prudence qui s'imposait à l'avocat [] » (Cour de Cassation, 1ère ch. civile, 20 Janvier 1993, Bull. 1993 I No 22, p. 14).

[6] See supra, para. 28.

[7] Cf. First Miletić Decision, para. 33.

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Decision re Prosecution Witnesses - 29.01.2016 NIYITEGEKA Eliézer
(MICT-12-16)

10. […] in order to carry out their duties in full, counsel recognized, assigned, or appointed by the Registrar as acting for an accused or convicted person must, in principle, automatically have access to the complete record of the proceedings to which their client is entitled.[1] […]

[1]See Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29, Decision on Request for Access, 16 September 2015, p. 2, referring to Prosecutor v. Radoslav Brđanin, Case No. MICT-13-48, Decision on Request for Access, 3 August 2015, p. 1; The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Request for Access, 25 June 2015, paras. 11, 14. 

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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”).

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ICTR Statute Article 20 (4) (b);
Article 20 (4) (d)
ICTY Statute Article 21 (4) (b);
Article 21 (4) (d)
Notion(s) Filing Case
Decision on Amicus Submission - 08.10.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

On appeal, Krajišnik raised allegations regarding his former trial counsel’s negligence and incompetence. The amicus curiae raised the issue of fairness to the former counsel and the right of the latter to respond to such allegations.[1] The Prosecution responded in opposition, arguing inter alia  that former counsel have sufficient notice of the allegations against them on the basis of the public redacted version of the amicus curiae’s appeal brief and that former counsel, being on notice of the allegations against them, could have requested the Appeals Chamber to be heard on the ineffective assistance claim but have not done so.[2] In this regard and mindful of the fact that some relevant submissions were only filed confidentially (thus inaccessible to the former counsel), the Appeals Chamber held:

pp. 1-2: NOTING the reply by Amicus Curiae in which he argues that it would be fundamentally unfair to deny former counsel the opportunity to comment on any assertions made against them, and that a submission by former counsel without an invitation by the Appeals Chamber cannot be expected;[3]

NOTING that Amicus Curiae concedes that no precedent exists for such a right of response by former counsel;[4]

CONSIDERING that the public and redacted version of the Amicus Curiae’s Appeal Brief provides former counsel with sufficient notice of the allegations against them for the purpose of assessing whether they would like to make submissions relating to those allegations;[5]

CONSIDERING that neither former counsel have indicated that they would like to be heard on the said allegations and that the Appeals Chamber, at this juncture and pending the examination of evidence adduced by the parties pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”), does not find it in the interests of justice to call the former counsel to appear under Rules 98 and 107 of the Rules;

HEREBY DISMISSES the Motion.

Judge Mohamed Shahabuddeen appended a declaration to the decision :

I support today’s decision dismissing amicus curiae’s motion that, inter alia, the Appeals Chamber should ‘invite former counsel to respond to Amicus Curiae’s Appeal Brief’. That would give former counsel a locus in the proceedings as an additional party; there is no basis for giving him that locus. But I do not understand that the dismissal concludes the question whether the Appeals Chamber should bring former counsel as its own witness and so give him an opportunity to answer the allegations against him. In my view, the consideration that no request to be heard has been made by former counsel is not pertinent; the question relates to the duty of the Court itself.

[1] Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 6 August 2008.

[2] Prosecution Response to Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 11 August 2008, paras 3-4.

[3] Reply to Prosecution Response to Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 12 August 2008, paras 4, 8.

[4] Motion [Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, filed publicly on 6 August 2008], para. 12.

[5] Public and Redacted Amicus Curiae’s Appellate Brief, 31 August 2007, paras 3-68. These submissions were reiterated publicly during the appeal hearing on 21 August 2008, cf. AT. 300-309.

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Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.
(IT-06-90-AR73.2)

43.     […] Moreover, the Appeals Chamber notes that Article 14(D) of the Code of Conduct prohibits a representation with an adverse effect on either of the clients, regardless of whether they are represented in matters before the International Tribunal or other jurisdictions. […]

44.     […] While the said provision [Article 14(D) of the Code of Conduct] does not seem to distinguish between the duty of loyalty to a current and a former client,[1] the Appeals Chamber observes that a conflict of interest may be more difficult to discern when it arises from the context of successive or serial representation rather than concurrent representation. Parties made extensive references to national case-law and the Appeals Chamber finds it instructive to have a brief overview of underlying principles with respect to a counsel’s duty of loyalty to a former client in national jurisdictions.

45.     According to the relevant US and UK case-law on the matter, a conflict of interest vis-à-vis a former client exists when the subject matter of the two representations are substantially related so as to put at risk the confidences received from that client.[2] It is however important to note that such conflict of interest is considered to exist in all situations “when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client”.[3] Generally, it would be a case-by-case assessment by the judiciary of the character and extensiveness of the prior representation to ensure that the interests of both former and current clients are preserved.[4] In any case, doubts as to the existence of an asserted conflict of interest with respect to a former client should be resolved in favour of disqualification.[5]

46        As a general principle in French law, apart from confidentiality issues, a counsel can only accept a new representation in which he or she may be led to plead against a former client where such new case is entirely different from the previous one, so as to fully conform to his or her duty of loyalty.[6] Similar principles are provided for by the Code of Conduct for European Lawyers, according to which a lawyer “must […] refrain from acting for a new client if there is a risk of breach of a confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client”.[1]

47      While the Croatian Attorney’s Code of Ethics is only explicit with respect to prohibiting legal assistance to an adverse party in a subsequent representation, it provides for duties of faithfulness and loyalty to a client which do not necessarily cease with the end of representation.[2] In Bosnia and Herzegovina, it is impermissible to represent clients with conflicting interests, and should such a conflict (or risk of infringing the confidentiality of information or the attorney’s independence) arise during litigation, the attorney has an obligation to return the power of attorney to all the parties involved.[3]

48      Having concluded that the simultaneous representation of the Appellant and Ademi by Prodanović and Sloković raises a high risk of a conflict of interest due to the fact that the Counsel would be limited in their choice of defence strategies in order to conform to their duty of loyalty,[4] the Appeals Chamber is of the view that, even if Prodanović and Sloković withdrew from Ademi’s defence, they would still be unable to represent the Appellant to the best of his interests as they would remain bound by their duty of loyalty to Ademi as a former client.[5] This potential conflict of interest is even more contoured considering the high probability that Ademi will be called as witness in the present case.[6]

[1] 28 October 1988 as amended on 19 May 2006, Article 3.2.2; see also Article 3.2.3: “must cease to act for both or all of the clients concerned when a conflict of interests arises between those clients and also whenever there is a risk of a breach of confidence or where the lawyer’s independence may be impaired” (emphasis added).

[2] The Attorney’s Code of Ethics, (adopted at the Assembly of the Croatian Bar Association on 18 February 1995 with amendments of 12 June 1999), Articles 40-61.

[3] Kodeks advokatske etike advokata FBiH, 5 November 2004 as amended on 4 May 2005, Article 21 (emphasis added).

[4] See supra, paras 27-28.

[5] In this sense, the Appeals Chamber agrees with the Impugned Decision that counsel’s duty of loyalty to a client under Article 14(A) of the Code of Conduct affects both present and former clients (Impugned Decision, para. 15).

[6] Cf. Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Confidential Decision on Request for Review of the Registry Decision on the assignment of Co-Counsel for Radivoje Miletić, 16 November 2006 (“Second Miletić Decision”), paras 29-30.

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Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal
Notion(s) Filing Case
Decision on Extension of Assignment of Counsel - 27.05.2016 NIYITEGEKA Eliézer
(MICT-12-16-R)

11.     […] The Appeals Chamber considers that counsel, once appointed, is, at a minimum, expected to familiarize himself with the case. […]

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Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 4:

RECALLING the Remuneration Policy, which provides that “[f]or the purpose of this Policy, the [Mechanism] shall recognise the determination of indigency of an Accused made by the ICTR and the ICTY, unless new information is obtained which establishes that the Accused has sufficient means to remunerate Counsel”;[1]

NOTING that this provision of the Remuneration Policy addresses only a situation where a determination was made that an accused person is indigent, as is clear from the last part of the provision which refers to “new information” establishing that the accused person “has sufficient means” to remunerate counsel, not a situation where the determination was that an accused person is not indigent;

CONSIDERING, therefore, that the Remuneration Policy does not require the Registry to recognise a determination made by the ICTY that an accused is able to contribute to the costs of his defence in part;

[1] Remuneration Policy [Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, 21 March 2016], para. 7.

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Other instruments Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, para. 7
Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 4-5:

RECALLING that the Registry has the primary responsibility for matters relating to remuneration of counsel in respect of which it enjoys a margin of appreciation;[1]

REITERATING, however, that the Appeals Chamber has the inherent power to review matters affecting the rights of persons in proceedings before it, including the right to have adequate time and facilities for the preparation of defence, pursuant to its statutory obligation to ensure the fairness of the proceedings;[2]

CONSIDERING that the inherent power to review such matters encompasses the power to make determinations concerning such matters where necessary to give full effect to statutory rights;[3]

RECALLING the statutory right of an accused to have legal assistance assigned to him where the interests of justice so require and without payment if he does not have sufficient means to pay for it;[4]

RECALLING that the Directive was established to ensure legal assistance to indigent accused in the most efficient, economical, and equitable manner in order to safeguard the rights afforded under the Statute and the Rules;[5]

CONSIDERING the UN Guidelines on Access to Legal Aid, which provide that “[a] court may, having regard to the particular circumstances of a person and after considering the reasons for denial of legal aid, direct that that person be provided with legal aid, with or without his or her contribution, when the interests of justice so require”;[6]

[…]

CONSIDERING that the burden of proof is on the applicant for legal aid to demonstrate his inability to remunerate counsel and that once the applicant has provided information regarding his inability to do so the burden of proof shifts to the Registry to prove otherwise based on the balance of probablities;[7]

[1] Decision on the Registry’s Request for Observations Regarding Preparation of the Notice of Appeal, 4 May 2016, p. 1 (“the Registry has the primary responsibility in the determination of matters relating to remuneration of counsel”); Nyiramasuhuko et al. Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016], para. 17; Tolimir Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013], paras. 8, 9 and referenced cited therein.

[2] See Article 19 of the Statute of the Mechanism (“Statute”). See also Nyiramasuhuko et al. Decision, para. 14; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12.

[3] Nyiramasuhuko et al. Decision, para. 21 (“[t]he Appeals Chamber is of the view that judicial economy is best served in the particular circumstances of this case by disposing of the merits of this part of the Request for Review rather than remitting the matter to the Registrar”).

[4] Article 19(4)(d) of the Statute. See also Rule 43 of the Rules of Procedure and Evidence of the Mechanism.

[5] Directive [Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012], Article 1. The Appeals Chamber also recalls that, under Articles 6(B) and 6(C) of the Directive, an accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him and paid for by the Mechanism and that, for an accused who has the means to partially remunerate counsel, the Mechanism shall pay that portion of his defence costs which the accused does not have sufficient means to cover, as determined in accordance with the Registry Policy for Determining the Extent to which an Accused is able to Remunerate Counsel.

[6] UN Guidelines on Access to Legal Aid, para. 41(e).

[7] Prlić et al Decision [Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013], para. 35; Kvočka et al. Decision [Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003], para. 12.

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Decision on Access to Confidential Information - 09.09.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

Page 2:

[…] [C]ounsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements;

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Review of the Registrar's Decision on Means - 25.07.2013 PRLIĆ et al.
(IT-04-74-A)

33.     […] I first note that the neither the Directive nor the Rules require the Registrar to provide Praljak with an itemized specification of the expenses he is required to reimburse the Tribunal. Nevertheless, I am of the view that an accused should have access to a detailed account of the costs he is expected to reimburse, if so requested. As Praljak has now requested such an itemization, I consider it reasonable that the Registrar provide him with one. […]

[…]

39. Finally, turning to the Registrar’s authority to order the reimbursement of legal aid provided to Praljak, I recall that Rule 45(E) of the Rules provides that:

[w]here a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may, on application by the Registrar, make an order of contribution to recover the cost of providing counsel.[1]

In this regard, I observe that the Decision on Means states that the Registrar “decides that the Accused shall reimburse the Tribunal […] and directs the Accused to do so promptly”.[2] A plain reading of the Decision on Means reflects that the Registrar ordered Praljak to reimburse the Tribunal for the amount owed. While this may constitute “Registry practice” to avoid “unnecessary motion practice”,[3] the Registrar’s order contravenes the clear wording of Rule 45(E) of the Rules, which requires the Registrar to apply to the relevant chamber, which may then make an order of contribution to recover the cost of providing counsel. I therefore consider that the Registrar exceeded his authority by ordering Praljak to reimburse the Tribunal, rather than applying to the relevant chamber. […]

[1]        Emphasis added.

[2]        Decision on Means [Prosecutor v. Slobodan Praljak, Case No. IT-04-74-T, Decision, Registrar, 22 August 2012 (with confidential and ex parte Appendix I and Public Appendix II)], p. 7.

[3]        Response [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Registrar’s Response to Slobodan Praljak’s Motion for Review of the Registrar’s Decision on Means, 26 April 2013 (confidential and ex parte)], para. 56.

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ICTY Rule Rule 45(E)