Right to respond to allegations of negligence
|Decision on Amicus Submission - 08.10.2008||
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. 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. 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;
NOTING that Amicus Curiae concedes that no precedent exists for such a right of response by former counsel;
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;
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.
 Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 6 August 2008.
 Prosecution Response to Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 11 August 2008, paras 3-4.
 Reply to Prosecution Response to Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 12 August 2008, paras 4, 8.
 Motion [Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, filed publicly on 6 August 2008], para. 12.
 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.