Lawyer-client privilege

Notion(s) Filing Case
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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ICTR Rule Rule 97 ICTY Rule Rule 97
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