Case No. IT-02-60-T
IN TRIAL CHAMBER I, SECTION A
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay
Mr. Hans Holthuis
3 July 2003
DECISION ON INDEPENDENT COUNSEL FOR VIDOJE BLAGOJEVIC’S
MOTION TO INSTRUCT THE REGISTRAR TO APPOINT NEW LEAD AND CO-COUNSEL
The Office of the Prosecutor:
Mr. Peter McCloskey
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
Independent Counsel for Mr. Vidoje Blagojevic
Mr. Jan Sjöcrona
TRIAL CHAMBER I, SECTION A, (“Trial Chamber”) of the International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
(“Tribunal”) is seised of the “Independent Counsel for Vidoje Blagojevic’s Motion
to Instruct Registrar to Appoint New Lead and Co-Counsel,” filed on an ex parte and confidential basis on 5 June 2003 (“Motion”) following a closed
session and ex parte hearing on the issue of assignment of counsel to
Vidoje Blagojevic (“Accused”) on 29 May 2003 (“May Hearing”).1
On 6 June 2003, the Trial Chamber lifted the ex parte status of the May
Hearing transcript, and lifted the ex parte nature of the Motion and
all filings and communications related to the May Hearing in relation to counsel
assigned by the Registrar to the Accused, namely Michael Karnavas as lead counsel
and Suzana Tomanovic as co-counsel (“lead counsel” and “co-counsel” respectively,
and collectively, “Counsel”).2
Pursuant to the Trial Chamber’s schedule of filing responses, the Registrar
filed his response to the May Hearing and the Motion on 11 June 2003, on a
confidential and ex parte basis.3 On 12
June 2003, the Prosecution filed its response on a confidential and ex parte basis.4 On 16 June 2003, Counsel filed
their Response to the Motion, “Counsel’s and Co-Counsel’s Response to the
Motion by Independent Counsel” on a confidential and ex parte basis
(“Counsel’s Response”). Following the filing of Counsel’s Response, the Trial
Chamber ordered the Independent Counsel to file any Reply by 27 June 2003.5
The Trial Chamber denied a request to file the Reply by 18 August 2003.6
As the issue of assignment of counsel to the Accused was raised in open
court by the Accused and certain aspects of this issue have been addressed
in public filings, and as this issue is of public interest, this Decision
is being rendered on a non-confidential basis. The Trial Chamber has accordingly
taken into consideration Rule 97 of the Rules of Procedure and Evidence (“Rules”)
and the sensitivity or the non-public nature of certain allegations or information
in the filings in delivering this Decision; however, all relevant material
upon which the Trial Chamber relied in making its findings is included herein.
THE TRIAL CHAMBER, HAVING CONSIDERED the submissions and arguments
of the Parties,
HEREBY ISSUES ITS DECISION.
- On 10 August 2001, following his arrest, Vidoje Blagojevic was transferred
to the United Nations Detention Unit (“UNDU”). The initial indictment against
the Accused was issued on 27 October 1999 under seal, and was made public
following his arrest. On 16 August 2001, the Accused had his initial appearance
before Judge Liu Daqun and entered a plea of not guilty to all counts. At
the initial appearance, the Accused was represented by provisional defence
counsel, Mr. van der Spoel. On 31 August 2001, in accordance with a request
from the Accused, Michael Karnavas, a lawyer on the Registrar’s list of available
counsel, was appointed as lead counsel for the Accused.7
- At a Status Conference held on 19 July 2002, the pre-trial Judge of Trial
Chamber II asked Mr. Karnavas about the appointment of co-counsel, as it can
be in the interests of justice to have two defence counsel in the event that
the lead counsel cannot be present.8 Mr. Karnavas
responded that there would be a co-counsel assisting him, and that “it will
most likely be Ms. Tomanovic,” who, since 12 October 2001, was assigned to
the Defence team as a legal assistant/investigator. On 25 September 2002,
in accordance with a request by Mr. Karnavas, the Registrar appointed Suzana
Tomanovic as co-counsel for the Accused.9
- The Trial Chamber was first made aware that there was an issue related
to the assignment of co-counsel for the Accused at a Status Conference held
on 27 November 2002, when Mr. Blagojevic informed the pre-trial Judge that
he has an issue he would like to raise,10 namely,
his defence. Specifically, Mr. Blagojevic stated that “[d]efence counsel has
been appointed in my case, and I have not agreed to that.”11
He stated that from this, “certain problems have arisen that may impair the
work and lead to certain further consequences which I may not envisage.”12
He informed the pre-trial Judge that he has “taken some steps, but they have
been rejected,” and that his only solution is therefore to raise the issue
before the Trial Chamber.13
- The pre-trial Judge held an ex parte14
and closed session hearing on the issue of the assignment of the Accused’s
co-counsel immediately following the Status Conference on 27 November 2002
(“November Hearing ”). At the November Hearing, the Accused clarified that
his complaint was limited to the assignment of his co-counsel, which he stated
“was not carried out pursuant to my suggestion and with my consent” and that
“serious consequences” can follow from that.15
The Accused further stated that it was his belief that lead counsel and co-counsel
“have to be elected and assigned in accordance with the request and the interests
of the client, which was not done in [his] case.”16
The Accused informed the pre-trial Judge that he had undertaken “certain steps”
to “solve the matter adequately and appropriately, in light of [his] understanding
of the Rules of Procedure and Evidence.”17 Specifically,
he had sent a letter to the Registry on 16 September 2002 in which he recommended
another person (“Third Person”) as co-counsel. He asked the Registry to provide
him with the reasons why his “suggestion” had been refused in writing.18
He also stated that he did not propose just one person to the Registry “as
the only possible solution.”19
- Lead counsel informed the pre-trial Judge that the Third Person lacked
the qualifications necessary to serve as co-counsel, and specifically did
not have any criminal law experience,20 adding
“I think it would be a travesty if he were to be co-counsel.”21
Lead counsel said that the Accused told him he did not have anyone else in
mind, “insisting on [the Third Person].”22 Lead
counsel submitted that Suzana Tomanovic had “been working very closely at
every stage of [the case] with the understanding that she might be co-counsel,
although I’d indicated to the Blagojevic family that in all likelihood she
would be, but I wanted to make sure.”23 Lead
counsel stated that up until the prior week, the Accused had no problem with
co-counsel and had referred to her as one of his lawyers.24
He further informed the pre-trial Judge that when he asked the Accused whether
Ms. Tomanovic should be completely removed from the defence team, Mr. Blagojevic
- Lead counsel then informed the pre-trial Judge of the history and terms
of his assignment to this case: that he was recommended to the Blagojevic
family by a judge in Bosnia and Herzegovina soon after the Accused was arrested;
that he met with the family of the Accused and explained to them that he would
choose the team, and no member of the team would be involved in anything improper;
and when asked specifically about whether he would be willing to accept the
family’s selection for “number two” counsel, he stated that he would “look
at them,” but “in the end it would be my call, because I am ultimately responsible.”26
Lead counsel said he met with the Accused twice before being appointed and
explained to him “how [he would] approach the case” including that he would
be a “micro-manager ” who would maintain “tight control over everybody.”27
Lead counsel further stated that he informed Mr. Blagojevic that he would
be the “ultimate decision-making power on anyone” and particularly the co-counsel.28
It was after hearing these terms, Mr. Karnavas stated, that Mr. Blagojevic
selected him as his counsel.
- In response to the Accused’s submissions, co-counsel informed the pre-trial
Judge that she had met with the Accused and the lead counsel at the UNDU on
numerous occasions and that she did not notice any problems between herself
and the Accused.29
- A representative of the Registry/OLAD then informed the Trial Chamber that
the issue of the assignment of co-counsel had previously been raised by the
Accused, stating that the Accused had “disagreed with the choice of Mr. Karnavas”
for co -counsel.30 The OLAD representative submitted
that she met with the Accused and informed him that the person he suggested
as co-counsel did not fulfil the criteria to be assigned counsel under the
Rules of the Tribunal.31 She further stated that
the Registry initially “understood that the problem was solved,” but the issue
came to the attention of the Registry again, and Mr. Karnavas was informed
of this.32 The OLAD representative further submitted
that appointment of Suzana Tomanovic as co-counsel for the Accused was in
accordance with the Directive of Assignment of Defence Counsel, as amended
on 12 July 2002 (“Directive”),33 as it is for
the lead counsel to select the co-counsel. She further submitted that Registry’s
role is to verify whether the proposed co-counsel is qualified, but that the
choice of co-counsel is a matter to be discussed between lead counsel and
the Accused.34 Additionally, she stated, the
appointment of Ms. Tomanovic as co-counsel was in line with the Registry preference
for appointing a person who has previously been working on the case.35
- Based on the submissions at the November Hearing,36
Trial Chamber II denied the Accused’s motion to have his co-counsel replaced,
finding that no good cause had been shown to intervene in the Registrar’s
decision.37 The Trial Chamber found that both
lead counsel and co-counsel were appointed in conformity with the Rules of
the Tribunal and the Directive.38 The Trial Chamber
further noted that the Accused did not provide it with any concrete reasons
for seeking the dismissal of his co-counsel and that the Accused’s request
to have his co-counsel removed was due to his desire to have the Third Person
assigned, “and not due to any misconduct, incompetence or any conflict of
interest on the part of the co-counsel.”39 Considering
that it is not permissible for an accused to “deliberately destroy the atmosphere
of trust and to make unsubstantiated claims that no co-operation between himself
and co-counsel is possible in order to have new co-counsel appointed,” the
Trial Chamber further found that no grounds were identified that would amount
to an “insufficient atmosphere of trust between the Accused and the defence
team or which would otherwise show that co-operation between the Accused and
his team is no longer possible.”40 No appeal
or motion for certification to appeal from the Trial Chamber Decision was
lodged by the Accused.
- At the Status Conference held on 27 March 2003, the Accused again raised
the issue of assignment of counsel with the pre-trial Judge.41
An ex parte42 hearing was held following
the Status Conference (“March Hearing”) at which the Accused said that while
the matter of the assignment of his counsel had been resolved in accordance
with the Rules, it was not resolved in the way in which he understood his
rights to be.43
- The Accused further submitted that “circumstances were different” and the
“ situation has changed” since the time he decided to have Mr. Karnavas as
his lead counsel. The Accused submitted that “the entire team now because
of this, because the lead counsel wants to assert this right of his, that
is that he can have the final word in the assignment of co-counsel, is in
a strange situation,” and asked, “What time do I have until the 5th or the
6th of May?” 44 In response to a question by
the pre-trial Judge of whether Mr. Blagojevic was stating that he did not
have trust in his lead counsel based on the fact that lead counsel did not
elect co-counsel on a consensual basis, Mr. Blagojevic responded that would
be a correct assessment.45 Upon further clarification
of whether Mr. Blagojevic would request a replacement of Mr. Karnavas if co-counsel
was not replaced, Mr. Blagojevic responded, “The answer is yes. I do not hesitate
- Lead counsel submitted that he “would be more than happy to withdraw from
the case if Mr. Blagojevic doesn’t have the trust in [him]” and that he had
told this to the Accused.47 Mr. Karnavas stated
that during the prior week, he, Mr. Blagojevic and Ms. Tomanovic had had “three
excellent working sessions” and that they were scheduled to meet the entire
next week, and thus, he was surprised by the issue being raised again.48
Mr. Karnavas stated he would withdraw if the Registrar decided to replace
co-counsel, submitting that he would have to withdraw “because ethically I
could not go forward on a case where I was not prepared” and he would not
be prepared without co-counsel.49 Lead counsel
further submitted that he made the decision to retain Ms. Tomanovic and “bear
the anger from the client and even the potential of being asked to leave the
case” because it is in the best interests of the client.50
- Co-counsel informed the pre-trial Judge that since the matter had been
raised in November 2002, she has been working on the case and has been “in
constant contact with the accused” and was therefore “surprised with the request
he made today.”51 She said that she is not withdrawing
from the case due to her professional and ethical obligations, but that she
will respect the Trial Chamber’s decision on this issue.52
- The pre-trial Judge then informed the parties that the Trial Chamber would
submit their submissions and the request to the Registrar, stating “it’s for
the Registrar to decide on the merits of this request,” meaning both the request
to replace co-counsel, and failing that, the request to replace lead counsel.53
The pre-trial Judge further stated that after the decision by the Registrar,
it would then be for the Trial Chamber, based on its inherent powers to intervene
in exceptional cases, to decide whether it was “urged to come to another conclusion
” based on the submissions.54
- The Trial Chamber accordingly forwarded to the Registrar the transcript
from the ex parte hearing.55 On 8 April
2003, the Registrar issued a decision (“Registrar’s Decision”), in which he
refused to withdraw the assignment of Ms. Tomanovic as co-counsel, and “on
the same grounds” refused the request to replace the “entire legal defence
team.”56 The Registrar based his decision on
his findings that the Accused “has not shown any substantive grounds relating
to the performance or professional ethics of Ms. Tomanovic justifying a replacement;
that no change in circumstances has taken place since the Trial Chamber’s
Decision On Oral Motion To Replace Co-Counsel of 9 December 2002; and that
to replace co-counsel at this point in the proceedings may cause prejudice
to the accused by having the potential to cause, inter alia, a delay
in the proceedings and thereby adversely affect his right to be tried expeditiously.”
No appeal of the Registrar’s Decision was lodged by the Accused.57
- On 5 May 2003, at the Pre-Trial Conference, the Accused said he would “openly
and clearly like to state here that I do not have a lawyer present here today
who would represent me as my Defence counsel. […] my lawyer, who introduced
himself in that capacity has actually been dismissed by me and is no longer
my Defence counsel.”58 He further stated that
he had initiated this question a long time ago, but he has been “thwarted”
in different ways, and therefore asked the Trial Chamber “as a guarantor and
the protector of the rights of the accused [to] also protect [him] in this
sense.”59 In light of the fact that he did not
appeal the Registrar’s Decision, the Trial Chamber asked the Accused to clarify
what his specific request was and what the specific reasons for the request
were. The Accused responded that the Registrar’s Decision “did not pertain
to the dismissal of [his] lawyer,” but rather “something regarding my Defence
counsel and so on and so forth but that is not actually it.”60
In terms of his Counsel, Mr. Blagojevic stated “I absolutely have no longer
any confidence in Mr. Karnavas and it would be a catastrophe for him to continue
to represent me in this case and to defend me.”61
- Following a second request by the Trial Chamber to state the reasons for
his request, the Accused said he would like to ask “to make it possible for
the gentleman not to be here to deal with the question of my defence because
he is unprepared for that and he is not going to do that.”62
The Trial Chamber informed the Accused that to date, the Trial Chamber found
that Counsel had safeguarded his interests and that it has no reason to change
his defence at this moment.63 Lead counsel confirmed
that Counsel were prepared for trial.64 Upon
the repeated request of the Accused that Counsel be withdrawn, the Presiding
Judge informed the Accused that if he had “new requests apart from the original
one, this Trial Chamber might consider to assign an independent counsel to
help you draft a motion to bring the matter to our attention, but if you stick
to the original reasoning, I’m afraid that this case is closed.”65
- For the first time at the conclusion of the Pre-Trial Conference, the Accused
informed the Trial Chamber that “[f]or more than a month, I have had no communication
with the mentioned gentleman […].”66 Further,
he said that all the issues discussed at the Pre-Trial Conference,
about the documents, the evidence […] it is very important
that I have a look at it and read it, and therefore to look at it from
my point of view and determine my position towards all that, all this
has been blocked. I am completely unaware that it exists and therefore
what purpose does it serve? What he knows and what he said here on a couple
of occasions when he rose up and spoke, I think is a story which isn’t
much help to me. […] any other option except Mr. Karnavas’s immediate
withdrawal from the case is out of the question, because he has betrayed
my confidence fully.67
The Trial Chamber concluded the discussion by informing the Accused that
it would ask the Registrar to assign an independent counsel to him to consult
on the matter, and assist him in filing a motion should he wish to, and
further informing him that in the meantime, his present Counsel would continue
to work with him.68
- On 9 May 2003, the Trial Chamber issued an Order requesting that the Registrar
appoint independent legal counsel to advise the Accused on his rights in relation
to the assignment of counsel, and assist him in preparing documentation, if
any, that may follow from their consultations on this issue.69
Upon the start of trial on 14 May 2003, in response to Mr. Blagojevic’s comment
that he does not have defence counsel present despite the introductions of
Counsel, the Trial Chamber informed the Accused that a further hearing could
be held to discuss the issue of assignment of his counsel after he has had
an opportunity to consult with the independent counsel on this issue.70
- On 23 May 2003, the Registrar appointed Mr. Jan Sjöcrona, a Dutch lawyer
and a previous member of the Advisory Panel of the International Tribunal,
which is constituted to advise the Registrar or the President on questions
pertaining to the assignment of defence counsel, as independent legal counsel
for the Accused.71 The same day, the Trial Chamber
issued a Scheduling Order for an ex parte and closed session hearing
with the Accused, represented by the Independent Counsel “for the limited
purpose of the discussion of the assignment of counsel” on 29 May 2003. The
Registrar was requested to be present at the hearing.
- At the hearing held on 29 May 2003, the Accused, through Independent Counsel,
asked the Trial Chamber “to instruct the Registrar to withdraw the assignment
of current counsel and to appoint new lead and co-counsel with due consideration
and respect for Mr. Blagojevic’s ideas thereto.”72
- The Trial Chamber will first consider the admissibility of this request,
and then the merits of the request, whereupon it will issue its decision.
- In the Motion, the Trial Chamber is asked to instruct the Registrar to
appoint a new legal defence team to the Accused. In effect, this request is
asking the Trial Chamber to order the Registrar to withdraw current Counsel
and assign new lead and co-counsel. Such a request, in light of the Registrar’s
Decision, amounts to a request for the Trial Chamber to both review the Registrar’s
Decision, and, to some extent, assume certain powers of the Registrar in deciding
upon the assignment of new counsel. As this Trial Chamber has previously stated,
it recognises the Registrar as having primary responsibility in the matter
of assignment of counsel.73
- The Rules of the Tribunal and the Directive provide for the review of certain
decisions taken by the Registrar in relation to the assignment of counsel
by the President of the Tribunal, the Appeals Chamber or a Trial Chamber.74
There have been previous instances where either a Trial Chamber or the Appeals
Chamber has reviewed “administrative decisions” taken by the Registrar which
focus on the financial status of an accused and his right to have counsel
assigned to him, and the technical qualifications of counsel.75
As Trial Chamber II has held, “[t]he basis for action by a Chamber [in reviewing
such decisions] rests with its power and duty to guarantee a fair trial and
the proper administration of justice as set forth in the Statute of the International
- In the Žigic Decision, the Appeals Chamber elaborated on the standard
for judicial review of such an administrative decision: “A judicial review
of an administrative decision made by the Registrar in relation to legal aid
is concerned initially with the propriety of the procedure by which the Registrar
reached the particular decision and the manner in which he reached it. The
administrative decision will be quashed if the Registrar has failed to comply
with the legal requirements of the Directive. This issue may in the particular
case involve a consideration of the proper interpretation of the Directive.
The administrative decision will also be quashed if the Registrar has failed
to observe any basic rules of natural justice or to act with procedural fairness
towards the person affected by the decision, or if he has taken into account
irrelevant material or failed to take into account relevant material, or if
he has reached a conclusion which no sensible person who has properly applied
his mind to the issue could have reached (the “unreasonableness ” test). […]
These standards for judicial review of administrative decisions rest on general
principles of law derived from the principal legal systems.”77
- The procedure for the withdrawal of counsel by the Registrar is governed
by Article 19 of the Directive.78 When a request
for withdrawal is denied, the person making the request may seek the President’s
review of the Registrar’s decision.79 There is
no provision in the Directive or the Rules that explicitly authorises the
Trial Chamber to grant the relief sought in the Motion, namely the withdrawal
of Counsel and the assignment of new lead and co-counsel.
- As the Trial Chamber has previously held, the basis for the Trial Chamber’s
action in this matter rests with its inherent power and duty to guarantee
a fair trial and the proper administration of justice, as set forth in Articles
20 and 21 of the Statute of the Tribunal.80 The
issue being raised in this case is not “simply” the appointment or assignment
of counsel from an administrative perspective,81
but extends to the substantive nature of the representation by Counsel, and
the proper fulfilment of obligations of legal representation towards the Accused
by Counsel.82 Accordingly, the Trial Chamber
views the Motion as one implicating a substantive right of the Accused, namely,
the right to a fair and expeditious trial,83
and that the issue of assignment or replacement of counsel in this case is
therefore open to judicial scrutiny.84 The Trial
Chamber, in examining this issue, is mindful that such an examination is complementary
to the powers of the Registrar and not an appropriation of the Registrar’s
A. Submissions of the Parties and the Registrar
Independent Counsel Representing Vidoje Blagojevic on the Issue of
Assignment of Counsel
- Through the Motion, Vidoje Blagojevic seeks to have the Trial Chamber instruct
the Registrar to appoint new lead counsel and new co-counsel to represent
him in the current trial proceedings. The Accused submits that he has been
clear and consistent in his requests to the Registrar that he seeks a withdrawal
of his Counsel.85 Independent Counsel submits
that this case is one of procedural fairness and/or the proper administration
of justice and is therefore a case in which the Trial Chamber is empowered
to intervene, as Mr. Blagojevic is no longer able to work with his current
- Two main reasons were advanced by the Accused as the basis of the lack
of trust between the Accused and his Counsel, resulting in the need for replacement
of Counsel : the appointment of Suzana Tomanovic as co-counsel and a serious
breakdown in communication between the Accused and his Counsel in relation
to the preparation of his defence.
- The Accused asserts that he does not agree with, and has never agreed with
the manner in which Ms. Tomanovic was selected and appointed as co-counsel.
The Accused submits that lead counsel “appeared not willing to consult” with
him on this issue and “wilfully neglected” explicit instructions not to select
Ms. Tomanovic.87 As co-counsel must be able to
represent the client in the absence of lead counsel, “it is vital that the
client and co-counsel operate on a basis of mutual trust.”88
Lead counsel did not follow the Accused’s explicit wish that the Third Person
be appointed as co-counsel.
- The lack of trust due to communication problems began following a hearing
in which lead counsel was asked about the appointment of co-counsel, the Accused
submits.89 Through the Independent Counsel, the
Accused submits that lead counsel “more or less casually suggested that Ms.
Tomanovic could be appointed co-counsel.”90 The
Accused found this suggestion to be “very strange” since he had never been
consulted on the issue and because he had “always and only had the impression
that Ms. Tomanovic was Mr. Karnavas’s interpreter and not his legal advisor.”91
The Accused submits that during all contacts with Ms. Tomanovic since October
2001, she has only acted as an interpreter, and Mr. Karnavas never gave the
Accused the impression that she was working with lead counsel as an advisor.92
Following the Status Conference of July 2002, the Accused made it “very clear”
to Mr. Karnavas that it was his “profound wish” to be consulted in relation
to the appointment of co-counsel.93 Through Ms.
Tomanovic, “who again only served as an interpreter,” the Accused told lead
counsel to come to The Netherlands for a meeting to discuss the appointment
of co -counsel before Mr. Karnavas took any steps towards the appointment
- During a meeting at the UNDU in late August or early September 2002, the
Accused made it very clear to lead counsel that he did not want Ms. Tomanovic
as co-counsel, stating that “as an interpreter she did excellent work,” but
that she “has never ever impressed [him] with any form of legal remark or
advice.”95 It was at this meeting that the Accused
gave lead counsel the name of the Third Person, which he submits he received
from his relatives and asked Mr. Karnavas to go to Belgrade to meet the Third
Person. The Accused asserts that lead counsel did not want to fulfil this
request, but finally and reluctantly did so.96
- After meeting with the Third Person, lead counsel informed the Accused
that the Third Person “did not meet [his] requirements, but he did not clarify
which requirements,” stating only that the Third Person was “a clown.”97
This left the impression upon the Accused that lead counsel “just refused
to listen to his client.”98 At this point, the
Accused submits that he would have been willing to discuss another co-counsel,
but did not want Ms. Tomanovic as co-counsel.99
- On 16 September 2002, the Accused filled out a form requesting that the
Third Person be appointed his co-counsel.100
“Suddenly” on 25 September 2002, the Registrar appointed Ms. Tomanovic as
co-counsel “against all explicit wishes of [Mr. Blagojevic].”101
The Accused submits therefore that not only did lead counsel fail to discuss
the appointment of co-counsel, but the Registrar also “neglected” his explicit
requests.102 Soon after Ms. Tomanovic’s appointment,
the Accused expressed his concern to a representative of OLAD.103
- In the Motion, Independent Counsel contends that while it may be true that
co-counsel is assigned in accordance with Article 16 (C) of the Directive,
that “does not at all rule out the possibility and professional obligation
of lead counsel to consult with the client prior to the request.”104
- Mr. Blagojevic then contacted the Third Person and told him to come to
The Netherlands, which he submits the Third Person did, but was not permitted
to visit the Accused.105 The Registry by this
point had determined that the Third Person did not meet the requirements,
but never informed the Accused what the requirements were. During a meeting
with a Registry /OLAD representative, the Accused made the specific complaint
that Ms. Tomanovic was not a “strong person,” which he felt is necessary for
his co-counsel.106 It was following these events
that Mr. Blagojevic raised the issue with the Trial Chamber on 27 November
2002, which resulted in the Trial Chamber denying his motion to have Ms. Tomanovic
replaced as co-counsel.
- At the March Hearing, the Accused raised the issue of co-counsel before
the Trial Chamber again. At the May Hearing, the Accused submitted through
the Independent Counsel, that he did so because he only saw Ms. Tomanovic
as an interpreter and that she had not impressed him with “any sound legal
remark of her own initiative whatsoever,”107
and further submits that at the March Hearing he clarified for the Trial Chamber
that if Ms. Tomanovic was not replaced he “would no longer have faith or trust
- In relation to the second issue, upon which the lack of trust is allegedly
based, the Accused asserts that Counsel did not communicate with him on the
preparation of his defence and that, although the trial has already begun,
“his Defence team as yet has failed to harmoniously discuss defence strategy
issue with him” despite his explicit requests to do so.109
He submits that this serious breakdown in communication has emerged over the
past year.110 It is alleged that the breakdown
in communication includes Counsel filing motions without the Accused’s knowledge
- The Accused provides examples of the lack of communication: that prior
to the Status Conference in March 2003, Counsel only had two brief meetings
with him during which they neither prepared for the Status Conference nor
even informed him of the upcoming Status Conference; and in March 2003, lead
counsel informed the Accused that he had an “expert opinion” but did not share
the information or report with the Accused despite his request to see it.112
- Arising out of these two issues, the Independent Counsel submits that a
breach of trust by, and a lack of trust in, lead counsel now exists. He further
asserts that it is for defence counsel to promote trust, and that they should
always act in a way to earn the trust of their clients.113
At the May Hearing, it was submitted that trust can only exist when “a lawyer
regards the position of his client to be the focal point and not the position
of co-counsel,” and that in this case, the Accused feels to be of secondary
importance to co- counsel.114 Thus, while the
Accused continues to have Counsel assigned to him, “he de facto is
not represented by counsel.”115
- Independent Counsel contends that through lead counsel’s action in relation
to the two issues outlined above and his overall “modus operandi”,
he has breached various provisions of the Code of Professional Conduct for
Defence Counsel Appearing before the International Tribunal, as amended (“Code”),116
and international standards for the conduct of counsel.117
The five ethical rules for counsel that the Accused, through Independent Counsel,
asserts were breached are: (i) acting in the best interest of the client;
(ii) discharging instructions given to counsel; (iii) informing the client;
(iv) consulting with the client about how to achieve the objectives of representation;
and (v) promptly complying with all reasonable requests for information.118
- The Accused, through Independent Counsel, submits that lead counsel has
failed to earn his trust, and that without this trust, he cannot act in his
best interest, as his best interests can only be properly assessed following
joint efforts by counsel and the Accused together.119
In relation to discharging instructions by the client, as discussed above,
the Accused states that his instructions on the appointment of co-counsel
were explicitly ignored. On the third point, the Accused submits that he was
not informed about either the appointment of co-counsel or defence preparation.120
On the issue of consultation on objectives of representation, Independent
Counsel submits that: “[a]chieving objects of representation, that is not
an abstract academic exercise for one or two brilliant legal minds. It is
the sum of the legal brain and cooperation with the client, the client who
is not a mere object of legal assistance but is the subject of this very important
procedure.”121 Such consultation, it is submitted,
did not occur; rather, lead counsel acted as a “legal dictator.”122
As discussed above, the Independent Counsel submits that lead counsel did
not comply with reasonable requests of the Accused to be informed on the issue
of assignment of co-counsel. For these reasons, it is argued, the defence
team must be replaced.
Lead Counsel and Co-Counsel Appointed to Vidoje Blagojevic as Defence
- In response to the two main issues raised in the Motion, Counsel asserts
that lead counsel made clear to the Accused from the outset that Ms. Tomanovic
would, at the appropriate time, be designated as co-counsel, and Counsel consulted
with the Accused “at every stage of the pre-trial phase, about the theory
of the case, the process by which the case would be progressing, the tasks
to be performed and the results, the legal issues involved, the motions to
be filed, and above all, the disclosure material provided by the [Prosecution].”123
- In relation to the first issue, namely the appointment of Ms. Tomanovic
as co-counsel, Counsel’s Response expands on the submissions made by lead
counsel at the November Hearing in relation to manner in which, and the terms
upon which, lead counsel agreed to represent Mr. Blagojevic, highlighting
the pre-assignment discussions on how co-counsel would be decided upon.124
In pre-assignment meetings with both the Blagojevic family and the Accused
(two meetings were held with each), lead counsel stated to the family that
he would not accept assignment as co-counsel125
and he would be making all decisions concerning the composition of the defence
team and assigning all tasks to the team.126
Counsel submit that lead counsel explained to Mr. Blagojevic that while he
“would consider” his recommendations for co-counsel, ultimately it would be
for lead counsel to select the entire defence team “as he saw fit.”127
Additionally, Counsel submit that lead counsel told the Blagojevic family
that, “in all likelihood”, Ms. Tomanovic would be lead counsel’s first choice
as co-counsel at their second meeting in September 2001.128
- During the initial pre-trial phase, lead counsel informed the Accused that
Ms. Tomanovic, then legal assistant, would in all likelihood become co-counsel,
with the appointment to commence approximately two months prior to a concrete
trial date.129 Mr. Blagojevic was informed that
Ms. Tomanovic would be assisting as an interpreter due to confidentiality
reasons.130 Additionally, lead counsel told
the Accused that whoever was to be assigned as co-counsel would need to be
very familiar with the entire case, have a rapport with the Accused and understand
the theory of the case.131 During this phase,
the Accused and co-counsel, then a legal assistant, met without lead counsel
being present. The Accused referred to Ms. Tomanovic as his lawyer, upon which
she would correct him and tell him that “she had yet to be formally assigned
as Co-counsel, and that she was still officially a Legal Assistant.”132
- Counsel maintain that the “dispute” over the assignment of co-counsel began
after the Status Conference held in July 2002, and specifically in mid-August
2002 when lead counsel was taking steps to have Ms. Tomanovic assigned as
co-counsel. Counsel submit that co-counsel was contacted by telephone by a
family member of the Accused and given instructions that the Accused wanted
to meet with lead counsel before the assignment of co-counsel was completed.
Between the Status Conference and the time of the phone call, lead counsel
had had six meetings with the Accused, and submits that the Accused had “never
raised any concerns about [lead] counsel’s representations during the Status
Conference where [lead counsel] indicated that ‘[co-counsel] will most likely
be Ms. Tomanovic’.”133 It was only after the
phone call that Mr. Blagojevic “expressed an interest to have someone other
than Ms. Tomanovic as co-counsel,” and “several discussions were held on this
- Counsel assert it was at this point that the Accused stated he “only wanted
” the Third Person as co-counsel. Counsel’s Response expands on submissions
made in relation to the Third Person at the November Hearing, particularly
upon the review of the Third Person’s qualifications and meetings between
the lead counsel, co-counsel and Third Person, which, Counsel submit, established
clearly that the Third Person was unqualified to be co-counsel and may engage
in practices or defence strategies which lead counsel did not and would not
support.135 Counsel submit that the Accused
did not disclose to them how or why the Accused selected the Third Person.136
Counsel further submit that Mr. Blagojevic indicated that lead counsel “need
not worry about [the Third Person, since Mr. Blagojevic would be tasking the
co-counsel, while [lead] counsel and Ms. Tomanovic as Legal Assistant, could
just go about the business of preparing the case for trial.”137
Finally, Counsel submit that lead counsel “repeatedly” asked the Accused if
he had anyone else in mind as co-counsel, since the Third Person was unqualified,
and the Accused insisted only on the Third Person.138
- Counsel claim that the Accused submitted the Third Person’s name to OLAD
without informing lead counsel, and despite the fact that it had been “repeatedly”
explained to the Accused that under the Directive, it was for lead counsel
to designate co -counsel.139 Counsel then had
a second meeting with the Third Person, at which, Counsel submit, the Third
Person stated that he in fact did not have criminal law experience and that
he did not wish to be involved in the case. Additionally, at this meeting
Counsel sought an explanation from the Third Person on how and why the Accused
selected him.140 Following this meeting, Counsel
confirm that “without any prior notice to Mr. Blagojevic,” he proposed Ms.
Tomanovic as co-counsel, a decision which, “had been pre-arranged between
[lead] counsel and the Accused months earlier.”141
“Immediately after submitting the requisite letter to OLAD,” lead counsel,
through co-counsel, notified the Accused of the fact, both through telephone
and fax.142 While Counsel submit that the Accused
initially insisted that co-counsel be replaced by the Third Person, stating
that her appointment “interfered with ‘his plan’ and in ‘solving certain problems’,”
after a few weeks the Accused “seemed to have accepted the fact that [lead]
counsel would not retract his selection of co-counsel, and began once again
to work in earnest with [lead] counsel on his case.”143
- Counsel submit that this overview establishes that the Accused knew how
his defence team would be managed and work, with Mr. Karnavas as lead counsel;
that Ms. Tomanovic was likely to be appointed co-counsel, an appointment that
was for Mr. Karnavas to decide upon; that Mr. Blagojevic knew Ms. Tomanovic’s
role and duties ; and that the Accused knew that a different member of the
defence team was responsible for translating documents.144
- In Counsel’s Response, Counsel outline for the Trial Chamber the various
phases of pre-trial preparation and work that lead counsel and co-counsel
undertook both with, and on behalf of, the Accused.145
Through their submissions, and supporting documentation,146
Counsel assert that both lead counsel and co-counsel had extensive and detailed
discussions on numerous subjects and matters including the mechanics of proceedings
before the Tribunal generally, preliminary discussions on the charges against
the Accused, and substantive meetings on disclosure materials. During the
“initial phase ” of 6-8 months, Counsel submit, and UNDU log books indicate,
that they spent nearly 170 hours with the Accused, and were actively involved
in preparations and meetings.147 Counsel outline
certain steps that they took to motivate the Accused to actively participate
in the preparation of his defence.148
- In response to Independent Counsel’s submission that lead counsel did not
share information related to an “expert opinion” with the Accused, Counsel
provide an overview of the arrangements made for the experts to travel to
The Hague and meetings subsequently held with the Accused, lead counsel, and
the proposed experts.149 Counsel note that the
Accused would not meet with the experts in the presence of co-counsel, but
only with lead counsel present.150
- In relation to the issue of communication between Counsel and the Accused,
Counsel submit that lead counsel, through co-counsel, had weekly telephone
contacts with the Accused in order “to give him status reports” and check
in with him generally.151 Counsel refute the
Independent Counsel’s assertion that Counsel did not inform the Accused of
the Status Conference of 27 March 2003, asserting that both counsel and co-counsel
met with the Accused in the week before the Status Conference and discussed
pending motions in detail.152 Additionally,
Counsel cite certain motions filed, and assert that the Accused was consulted
prior to their filing.153
- Counsel contend that while the Independent Counsel stated at the May Hearing
that there has been “no contact” between the Accused and his defence team
since 2 April 2003, this is “categorically inaccurate.”154
Counsel submit that it is Mr. Blagojevic who has refused to meet with or communicate
with either lead counsel or co-counsel; Counsel has not refused to meet Mr.
Blagojevic. Counsel submits that there is “ample correspondence” from lead
counsel to the Accused subsequent to 7 April 2003.155
- Counsel challenge the Independent Counsel’s assertion that lead counsel
violated five rules of lawyering.156 Counsel
provide numerous examples or factors to support the finding that lead counsel
has acted in the best interests of his client.157
In response to the allegation in the Motion that lead counsel failed to discharge
instructions given to him by the Accused, Counsel submit “[w]hile a counsel
should always endeavour to discharge instructions given by a client, counsel
should never carry out any instructions which would call into question counsel’s
ethics”158 and Counsel assert that to have assigned
the Third Person as co-counsel would have compromised lead counsel’s ethics.
Counsel assert that the record is clear on discussions and consultations on
the issue of the assignment of co-counsel. Finally, Counsel assert that Mr.
Blagojevic has been consulted “on every aspect of the case.”159
- On the specific issue of decision-making within the defence team and between
the Accused and lead counsel, Counsel concludes that:
[n]aturally, certain decisions can only be made by an
accused. In such instances, counsel is expected to give his or her best
informed opinion and advice to the accused, who will then act after having
reached a reasoned and informed decision. Other decisions, however, are
left up to counsel, who after consulting with the accused, must make the
decision. It stands to reason that any decision of counsel is made after
taking into consideration all of the available information, and in accordance
with and in the best interest of the accused. Further, and more specific
to this case, however, is that fact that counsel recognizes the importance
of maintaining strict ethical standards over the entire defence team.160
- While Counsel have expressed their belief that there are no grounds for
their disqualification or dismissal, and their willingness to remain as Counsel
for the Accused, Counsel submit that the Trial Chamber must also consider
“whether procedural fairness and the proper administration of justice can
be achieved by retaining [lead] counsel and co-counsel in this case.”161
- It is submitted by the Registrar in his Response, that as the Appeals Chamber
standard for review of administrative decisions taken by the Registrar was
derived from general principles of law from principal legal systems, it is
therefore appropriate to apply the same standard to all decisions of the Registrar.162
- Accordingly, the Registrar submits that it would be appropriate for the
Trial Chamber to quash his decision if: (i) the Registrar incorrectly interpreted
the relevant provisions of the Statute, the Rules or the Directive;163
(ii) the Registrar failed to observe any of the basic tenets of natural justice
towards the Accused in refusing his request to meet with the Third Person,
and denying his request to withdraw the assignment of his defence team; (iii)
the Registrar took into account irrelevant material, or failed to take into
account relevant material when determining that there were no exceptional
circumstances justifying the withdrawal of the Accused’s defence team and
such material is of sufficient significance that its consideration would
have affected the outcome; or (iv) the decision of the Registrar was such
that no reasonable decision maker could possibly have issued such a decision
on the material before them.164 The overall
reasonableness of the Registrar’s Decision should be considered “in view of
its impact upon the proceedings and in relation to general policy considerations
of the legal aid scheme at the International Tribunal.”165
- The Registrar maintains that the assignment of Suzana Tomanovic as co-counsel
for the Accused was done in accordance with the Directive. Under the Directive,
it is for the lead counsel to request the assignment of co-counsel, and on
26 September 2002, lead counsel did so. In his request for Suzana Tomanovic
to be appointed, lead counsel informed the Registry that: (i) upon acceptance
of his appointment, he made it clear to the Accused that he had the ultimate
authority to appoint all members of the defence team; (ii) at that time, he
informed the Accused that in all likelihood he would be proposing Ms. Tomanovic
to serve as co-counsel and that he would first assess her performance as legal
assistant; (iii) he was unaware of any disagreement on the part of the Accused
until 19 August 2002, when the Accused suggested the Third Person as a potential
candidate for co-counsel; (iv) while he met with the Third Person as a matter
of professional courtesy, lead counsel made it clear to the Accused that it
was for him to select co-counsel; (v) after meeting with the Third Person,
it was clear that this person lacked the necessary experience and qualifications
to serve as co-counsel; (vi) the Third Person had indicated to lead counsel
that he had not consented to being proposed as co-counsel and would not accept
the proposal; and (vii) Ms. Tomanovic was the most qualified and knowledgeable
candidate for the position of co-counsel.166
After “evaluating the recommendations of lead counsel and [her] qualifications”,
the Registry assigned Ms. Tomanovic as co-counsel on 2 October 2002.167
- The Registry had received a request from the Accused to have the Third
Person appointed as co-counsel. From correspondence to the Registry by the
Third Person nearly two months later, it was apparent, the Registry submits,
that the Accused had not been in a position to assess the Third Person’s abilities
and qualifications at the time of the request.168
The Accused submitted a request for further information on the status of his
request on 10 October 2002 and a representative of the Registrar met with
him on 25 October 2002, as has been indicated above. Following a request by
lead counsel to further clarify for the Accused the assignment of co-counsel,169
a representative of the Registry met with the Accused on 25 November 2002.
The Registrar submits that during this meeting, while the Accused stated he
wanted co-counsel replaced because “he believed that she is not as ‘strong’
as he wanted both his lead counsel and co-counsel to be,” the Accused “did
not raise any concerns in relation to the quality of legal representation
that he was receiving from the lead counsel.”170
The following day, upon the request of the Registry, the Third Person submitted
his curriculum vitae and professional qualifications to the Registry;
upon review of the Third Person’s qualification’s pursuant to Rule 45 (B)
and Article 14 of the Directive, the Registry immediately informed the Accused
that the Third Person “did not possess sufficient professional experience
to satisfy Article 14 requirements” and could not be added to the list of
eligible counsel.171 Accordingly, the Registry
considered that the visit of this person to the Accused “as a prospective
co-counsel” was not justified.172
- The Registry responds to a point raised by the Independent Counsel in assessing
whether it carried out the assignment of co-counsel in accordance with the
Directive, namely that it should have taken into consideration the wishes
of the Accused when deciding whether to assign Ms. Tomanovic as co-counsel.173
In interpreting Article 16 of the Directive, which provides for the assignment
of co-counsel, the Registry submits that: the right of assignment of counsel
is limited to one counsel, and that the right to choose counsel is limited
to the right to choose lead counsel; it may only assign co-counsel if “specifically
requested to do by the lead counsel” and “if it is in the interests of justice
to assign the person in question”. Further, the specific role of co-counsel
is to assist the lead counsel, who is professionally responsible for co-counsel
and it is “imperative” for the good functioning of the defence that lead counsel
has confidence in the “abilities and professional conduct” of the co-counsel.174
The Registry also highlights that Article 19 vests the lead counsel, and not
the Accused, with the power to request the withdrawal of co-counsel.175
The Registry refers to the jurisprudence of the Tribunal and its sister-Tribunal,
the International Criminal Tribunal for Rwanda (“ICTR”),176
as well as the jurisprudence of the European Court of Human Rights,177
to support this interpretation of Articles 16 and 19.
- The Accused sent the Registry a letter in which he made specific complaints
in relation to the conduct of the lead counsel in relation to the performance
of his duties and communication with the Accused on 19 December 2002.178
The Registry/OLAD reviewed the substance of the complaint as well as lead
counsel’s response to the Accused regarding the complaints raised by the Accused
in a prior letter to lead counsel of 17 December 2002.179
In assessing both the Accused’s complaints and lead counsel’s response,180
in its Response the Registry first concluded that the complaint was motivated
by the Accused’s dissatisfaction at not being able to select his co-counsel
and his “displeasure” with comments made by the lead counsel at the November
Hearing, and thereafter concluded that “the approach of the lead counsel to
the preparation of the defence [...] was consistent with his professional
and ethical obligations as set out in the Code.”181
On 21 January 2003, the Registry informed the Accused that “in the absence
of any indication that lead counsel was not fulfilling his professional obligations,
it would not be appropriate for the Registry to interfere with the manner
in which lead counsel chose to conduct the accused’s defence,” and that the
conduct described by the Accused was not considered by the Registry to be
misconduct, and therefore “the matters raised in his complaint did not constitute
sufficient justification to support a potential request for the withdrawal
of counsel.”182 The Registrar submits in his
Response that “although there may be an obligation to withdraw counsel if
the failure of counsel to provide an effective defence is manifest, not every
shortcoming of counsel constitutes grounds for withdrawal.”183
- In determining what facts were before it when the Registrar’s Decision
was made, and the reasonableness thereof, the Registry states that after the
March Hearing it received correspondence from the lead counsel and Accused
before issuing its decision. On 31 March 2003, lead counsel informed the Registry
that he had discussed the issues raised at the March Hearing with the Accused,
who according to lead counsel, was interested to see what the Registry would
do next. Lead counsel further submitted to the Registry that “during the meeting,
Mr. Blagojevic was cordial and ready to discuss the matters that had previously
been scheduled. He also expressed his eagerness to work with the individuals
scheduled to meet with him during the coming weeks. Ms. Tomanovic will be
assisting in facilitating and chairing these meetings.”184
On 3 April 2003, the Accused sent a letter to the Registry in which he requested
a meeting to discuss “the resolution of his problems with his defence counsel.”185
- Following the issuance of the Registrar’s Decision, as noted above, a representative
of the Registry met with the Accused. The Registry submits that the Accused
was advised during this meeting that “he did not have the right to unilaterally
dismiss his defence team,” and that unless Mr. Karnavas is withdrawn by the
Registrar, he will continue to represent the Accused. Additionally, the Registry
submits that the Accused was advised of his right to appeal the Registrar’s
Decision.186 On 6 May 2003, the Registry submits
that it was informed by the Accused that he had broken off all contact with
the lead counsel as of 2 April 2003 and that he had refused to allow the lead
counsel to provide him with any material.187
In relation to the latter point, the Registry “respectfully submits that it
is difficult to understand the rationale of the accused to deliberately refuse
to accept any documents, including court documents filed by other parties,
which directly concern his case.”188
- The Registry concludes in its Response that no new facts have arisen since
the Registrar’s Decision was issued that would warrant a review or reconsideration
of that decision.189 Furthermore, the Registrar
submits that all facts were taken into consideration when the Registrar made
his decision to assign co-counsel, and subsequently when the Registrar confirmed
her assignment and rejected the Accused’s request to withdraw his defence
team.190 Finally, the Registry asserts that:
as the guardian of the legal aid system, the Registrar
has a duty to guard against any possible instances of [...] impropriety
and to ensure that assigned counsel comply with the relevant professional
and ethical standards. In addition, the Registrar has a responsibility
to manage the allotment of resources in an efficient and effective manner,
and to ensure that the assignment of counsel will not unnecessarily result
in delays. Both requirements were met by assigning someone whom the lead
counsel had expressed his full confidence in, and who was familiar with
all aspects of the proceedings.191
- The Registry submits that “in order to conserve public funds and ensure
the accused’s right to an expeditious trial, it is generally acceptable to
refuse to withdraw counsel once proceedings have commenced.”192
- The Registry submits that:
[w]hilst it is understandable that a disagreement over
defence tactics and the staffing of the defence team might cause some
friction between lead counsel and accused, in the absence of misconduct
or manifest negligence on the part of the lead counsel, the request of
the accused to dismiss his entire defence team seems to be an entirely
disproportionate reaction, and contrary to the right of the accused to
have an expeditious trial and an effective defence.193
- In terms of procedural fairness, it is the Registrar’s submission that
the Accused has been given adequate opportunities to raise his complaints
with the Registry and before the Trial Chamber, and had been advised of his
rights under the Statute, the Rules and the Directive in relation to assignment
- In relation to the ultimate “reasonableness” of the decision to appoint
Suzana Tomanovic as co-counsel and to refuse to withdraw the Accused’s entire
defence team, the Registrar recognises that the current situation may make
its decisions “untenable in practice,”195 but
the Registrar finds it significant that “the potential harm that the accused
may suffer by continuing to be represented by a counsel whom he does not wish
to meet or receive documents from, is self-inflicted and disproportionate
to any lack of confidence or trust that he may have in his lead counsel.”196
The Registrar further cautions of the “possible consequences that might ensue
if a precedent permitting an accused to threaten to disrupt or hinder proceedings
select co-counsel and demand [sic] is established in this case” for
the administration of justice in all cases before the Tribunal.197
- The Registrar submits that a solution less far-reaching than the withdrawal
of the defence team may be possible which “does not disturb the principles
on which the Directive and Code of Counsel are founded.”198
The Registrar suggests that a “suitably qualified lawyer” who could act as
“an interlocutor between the accused and his defence team in order to ensure
that the defence team is adequately apprised of possible instructions from
the accused as to the conduct of his defence” could be appointed.199
Office of the Prosecutor
- In the Prosecution’s Response, the Prosecution submits that “given the
total breakdown of communication between Mr. Karnavas and his client, and
the new information revealed by Mr. Sjöcrona at the [May Hearing and in the
Motion],” it must abandon its previously neutral position on the question
of whether there should be any replacement of Accused’s Counsel, and support
the request in the Motion.200 To proceed with
Counsel, could infringe the rights of the Accused and may therefore result
in a re-trial of both the Accused and his co-accused, Dragan Jokic, the Prosecution
submits. If the Trial Chamber granted the Motion, the Prosecution submits
that “a brief recess of no more than three months would be sufficient” for
the replacement of counsel and new counsel to “familiarise themselves with
- The Prosecution submits that the jurisprudence of the Tribunal allows for
the removal or replacement of counsel where “good cause” has been shown, and
that one example of what may constitute good cause is where a total breakdown
in communication has occurred.202 The Prosecution
submits that the Registrar has also recognised a breakdown of trust and communication
as a ground for the replacement of counsel.203
Based on the submissions by the Accused at various hearings and through the
Motion, the Prosecution submits that the current relationship between lead
counsel and the Accused, namely no communication and “absolutely no relationship
of trust”, makes the appointment of new counsel necessary.204
In light of recent developments in the case, the Prosecution submits that
the failure in communication “may well infringe Mr. Blagojevic’s right to
a fair trial.”205
Assignment of Counsel and Co-Counsel
- Pursuant to Article 21 (4)(d) of the Statute, as reflective of numerous
human rights instruments,206 accused have the
right to be represented by counsel in the proceedings against them before
the Tribunal “where the interest of justice so require”, as one of the minimum
guarantees to achieve their right to a fair trial under Articles 20 and 21
of the Statute. Pursuant to the Statute and through the Directive, a suspect
or accused who lacks the means to remunerate counsel shall be entitled to
assignment of counsel paid for by the Tribunal.207
An accused who wishes to be assigned counsel shall make a request to the Registrar
and provide a declaration of his means to the Registrar.208
Upon finding that an accused lacks the means to remunerate counsel, the Registrar
shall decide “to assign counsel and choose for this purpose a name from the
list drawn up in accordance with Rule 45 (B) of the Rules and Article 14 [of
the Directive].”209 Under international law
and the jurisprudence and Statute of the Tribunal, as will be elaborated upon
below, there is no right for an accused who lacks the means to remunerate
counsel to choose his assigned counsel.210 In
practice, however, as was the case for Mr. Blagojevic, the Registrar generally
seeks the input of an accused when selecting counsel from the list of qualified
- While recognising that the wishes of an accused when selecting which Registrar
-assigned lawyer will represent him may be relevant, the Trial Chamber recalls
that the right of an indigent accused to choose his counsel is a limited right,
and recalls the finding of the European Court of Human Rights in relation
to Article 6 (3)(c ) of the European Convention:
It is true that Article 6(3)(c) entitles ‘everyone charged
with a criminal offence’ to be defended by counsel of his own choosing.
Nevertheless, and notwithstanding the importance of a relationship of
confidence between lawyer and client, this right cannot be considered
to be absolute. It is necessarily subject to certain limitations where
free legal aid is concerned and also where, as in the present case, 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; indeed, German law contemplates such a course. However,
they can override those wishes when there are relevant and sufficient
grounds for holding that this is necessary in the interests of justice.211
- The Trial Chamber further recalls the observation by the Appeals Chamber
of the ICTR in the Akayesu case, where it stated: “the issue of the
right of an indigent accused to counsel of his own choosing raises the issue
of balancing two requirements: on the one hand, affording the accused as effective
a defence as possible to ensure a fair trial, and on the other hand, proper
use of the Tribunal’s resources.”212 The Appeals
Chamber held that while the Registrar generally takes into consideration the
choice of the accused, he is “not necessarily bound by the wishes of an indigent
accused. He has wide discretion, which he exercises in the interests of justice.”213
- In this case, Mr. Blagojevic applied to the Registrar to assign counsel,
and requested that Mr. Karnavas be appointed as his counsel. The Registrar
complied with Mr. Blagojevic’s request, and Mr. Karnavas was appointed as
- Under the Directive, Section V (“Scope of Assignment”), an accused “shall
be entitled to have one counsel assigned to him and that counsel shall
handle all stages of the procedure and all matters arising out of the conduct
of the […] accused’s defence, including where two or more crimes are joined
in one indictment.”214 “In the interests of
justice and at the request of the person assigned as counsel,” the Registrar
may assign a second counsel to assist the first counsel, who shall
be called lead counsel.215 The second counsel,
known as co-counsel, is “[u]nder the authority of lead counsel, who is responsible
for the defence,” and may work on all stages of the proceedings against an
- The provision providing for the assignment of co-counsel was added to the
Directive during the June 1996 Plenary, upon the proposal of such an amendment
by the Registry. In his comments on why such a provision was necessary, the
Deputy Registrar submitted that “it is quite conceivable that an assigned
counsel may be unable to cope with the task of representing an accused in
a major trial without assistance.”217 The Registry
clearly saw the proposed co-counsel as a resource and assistant
for the lead counsel.218 Co-counsel was
not intended to be a “second counsel” for the accused.219
It is for this reason that the Registry proposed that the provision allowing
for the assignment of a co-counsel fall within Article 16, which was at that
time entitled “Scope of the Assignment” and fell within the “Status of Assigned
Counsel” section,220 rather than create a new
article on co-counsel. The Registry submitted that by placing co-counsel within
Article 16, inter alia, “it indicates that it is not for the accused
to apply for a second counsel, but for Lead Counsel to do so”; “once appointed,
co-counsel is firmly under the supervision and authority of Lead Counsel,
who has the responsibility for the defence team”; and “that Lead Counsel is
the counsel to whom the court will always look for direction in defence matters”.221
The Registry stressed that “the concept is that there is still only one assigned
counsel, but that counsel has been given an additional resource, another counsel,
who he may use as appropriate, to be remunerated by the Tribunal.”222
- As evident from the Statute, Rules and the Directive, and recently affirmed
in a decision by the President of the Tribunal, there is no right for the
Accused to have co-counsel; it falls within the discretion of the Registrar
to appoint a co-counsel in the interests of justice and upon a request by
the lead counsel.223 Even after one co-counsel
had been appointed and subsequently withdrawn, there is no guaranteed right
that the previous co-counsel will be replaced.224
- In relation to the withdrawal of co-counsel, the Registry stated that “[i]n
case of conflict it is clear that Lead Counsel can request the withdrawal
of co-counsel; just as the accused, under Article 20 (A) [of the Directive],
can request the withdrawal of assigned counsel.”225
- The Code is based on certain fundamental principles including that, inter
alia, clients have a right to legal assistance of their own choosing;
the role of counsel as advocates in the administration of justice requires
them to act honestly, independently, fairly, skilfully, diligently, efficiently
and courageously; counsel have a duty of loyalty to their clients consistent
with their duty to the Tribunal to act with independence in the administration
of justice; and counsel shall take all necessary steps to ensure that their
actions do not bring proceedings before the Tribunal into disrepute.226
Within the “Scope of Representation” provision, when representing a client,
counsel shall : (i) abide by the client’s decisions concerning the objectives
of representation ; (ii) consult with the client about the means by which
those objectives are to be pursued, but is not bound by the client’s decision;
and (iii) seek or accept only those instructions which emanate from the client
and which are not given as the result of an inducement from any person, organisation
or State.227 Additionally, counsel shall not
advise or assist a client to engage in conduct which counsel knows is criminal
or fraudulent, in breach of the Statute, the Rules, the Directive, the Code
or any other applicable law.228 Further, within
the “Competence, Integrity and Independence” provision of the Code, it is
specified that counsel shall, inter alia, act with competence, skill,
care, honesty and loyalty; exercise independent professional judgement and
render open and honest advice; and preserve their own integrity and that of
the legal profession as a whole.229 The duty
of loyalty to a client is repeated in the provision on “Conflict of Interest”
which provides, inter alia, that counsel owes a duty of loyalty to
a client and a duty to the Tribunal to act with independence in the
interests of justice and shall put those interests before his own interests
or those of any other person, organisation or State, and that counsel shall
exercise all care to ensure that no conflict of interest arises.230
- Counsel have the duty of diligence and communication with his or her client.
Under the provision of diligence of the Code, it is stated that counsel shall
represent a client “diligently and promptly in order to protect the client’s
best interests.”231 Counsel must “keep a client
informed about the status of a matter before the Tribunal in which the client
is an interested party and must promptly comply with all reasonable requests
- In accordance with Article 16 (C) of the Directive, Mr. Karnavas requested
that the Registrar appoint Ms. Tomanovic as co-counsel. In light of the Directive
and the obligations upon counsel in the Code, through his submissions, lead
counsel contends that his recommendation of Ms. Tomanovic was proper. He asserts
that she has the necessary qualifications, understanding and commitment to
the Accused and his defence. He further asserts that her assignment as co-counsel
was in furtherance of his ethical obligations to the Accused under the Code,
in that the assignment was in the Accused’s best interest. Finally, he asserts
that her assignment as co-counsel was in accordance with the Code, as he communicated
his intention to appoint Ms. Tomanovic as co-counsel when he presented the
terms of his representation to the Accused,. Of particular significance, lead
counsel consulted with the Accused on the choice of co-counsel, including
the consideration of the Accused’s recommended Third Person.
- The Trial Chamber finds that the appointment of Ms. Tomanovic as co-counsel
was done in accordance with the requirements of the Rules and Directive, and
that lead counsel acted in a manner consistent with his obligations under
the Code in appointing her as co-counsel for the Accused. Of significance
to the Trial Chamber in reaching this finding is the fact that lead counsel
communicated his proposal to appoint Ms. Tomanovic as co-counsel from
the time he was under consideration as lead counsel and informed the
Accused of the status of his defence team. The Trial Chamber finds that the
record, including supporting documentation supports this conclusion.233
Prior to the final discussion on her appointment as co-counsel, the Accused
expressed no complaints about her performance in any of these capacities that
would have led the lead counsel (or the Registrar) to believe that she was
incompetent and did not raise any potential issues of a conflict of interest
in having her as part of his defence team. Lead counsel considered the
Third Person recommended by the Accused, travelling twice to Belgrade to meet
with this person and to assess his qualifications.234
The candidate proposed by the Accused simply was not qualified to serve as
co-counsel before the Tribunal.235 Furthermore,
the Accused did not come forward at any stage with the suggestion of a qualified
candidate for co-counsel. Ms. Tomanovic has been working on this case closely,
having spent well over 200 hours with the Accused at the UNDU by the time
of her appointment and hundred of hours either in the field, investigating
the charges against him (at times, in the company of the Accused’s brother),
or working on legal issues related to his defence. As such, her appointment
as co-counsel, with the trial date approaching, could be regarded as being
in the best interests of the Accused.
- While it certainly is a more favourable situation when lead counsel and
an accused can agree on the selection of co-counsel, barring evidence that
the Accused had a conflict of interest with the proposed co-counsel or that
she was manifestly unqualified or incompetent, or, that through her performance
as legal assistant, proposed co-counsel demonstrated that she was ineffective
or uninterested in being a zealous advocate for the Accused, lead counsel’s
choice will be considered as a valid one. It was for the Accused to present
evidence of such factors, and in this case he failed to do so. The selection
and appointment of Ms. Tomanovic as co-counsel must therefore stand. The Trial
Chamber comes to this finding being mindful of the fact that it is the Accused
who is charged in these proceedings, and as such, clearly has a vested interest
in the qualifications, performance and selection of the members of his defence
The Registrar’s Decision on Withdrawal of Counsel
- Through the Directive, the Registrar is empowered to suspend or withdraw
counsel. Article 19 (A) of the Directive provides that “[i]n the interest
of justice, the Registrar may: (i) at the request of the accused, or his counsel,
withdraw the assignment of counsel; (ii) at the request of lead counsel withdraw
the assignment of co-counsel.” Thus, the Registrar is vested with the discretion
to withdraw the assignment of counsel upon the request of an accused; if such
a withdrawal is not seen to be in the interests of justice, the Registrar
has the discretion to refuse to withdraw counsel. There are instances at the
Tribunal where the Registrar has acceded to the request of an accused to have
his counsel withdrawn. In these cases, the Registrar has either noted that
“exceptional circumstances exist,”236 or that
the counsel assigned has agreed that his or her withdrawal is justified and
in the interests of justice.237 There have also
been exceptional cases where a Trial Chamber has permitted the withdrawal
of counsel.238 As will be discussed further
below, the Registrars of this Tribunal and the ICTR, as well as Trial and
Appeals Chambers at both Tribunals, have refused accused’s requests to withdraw
their counsel.239 It is clear from these cases
that the burden of proof is squarely on the person requesting the withdrawal
of assigned counsel to demonstrate good cause for the withdrawal of assigned
- Further, as has been discussed above, it is only upon the request of the
lead counsel that the Registrar may consider withdrawing the assignment
of co- counsel. Additionally, in certain cases, the discretion of the Registrar
on the issue of the withdrawal of counsel is removed, and he or she “shall”
withdraw the assignment of counsel.240 These
cases include those where a decision has been taken by a Chamber to refuse
audience to the assigned counsel based on misconduct under Rule 46 (A); where
counsel no longer satisfied the requirements under Rule 14 (A); or where counsel
has been found to be in contempt pursuant to Rule 77 of the Rules. The Trial
Chamber notes that none of these situations apply to this case, and therefore
the withdrawal of Counsel remains within in the discretion of the Registrar.
- In cases where the Registrar has withdrawn the assignment of counsel, the
Registrar “shall immediately assign a new counsel to the suspect of accused.”241
In such cases, the counsel may not withdraw from acting on behalf of the accused
until either a replacement counsel has been provided by the Tribunal or the
accused,or the accused has stated his intention to conduct his own defence.242
- As previously noted, in cases where the Registrar has denied a request
for the withdrawal of counsel, “the person making the request may seek the
President’s review of the decision of the Registrar within two weeks from
the notification of the decision to him.”243
- In this case, at the March Hearing, the Accused requested that the Registrar
replace his Counsel. As noted above, this was not the first time that the
Accused had requested that co-counsel be replaced. As noted above as well,
under the Directive only the lead counsel can request that co-counsel be withdrawn.
The Accused did not provide the Registrar – as he had not provided the Trial
Chamber – with any concrete reasons for this request or the “lack of trust”
that precipitated the request. The Accused did not provide the Registrar with
any specific complaints regarding the performance of counsel or co-counsel
that may have warranted their disqualification of the grounds of ineffective
assistance or breach of professional duties. In light of the fact that the
Accused had not provided grounds for the withdrawal of Counsel, and taking
into consideration that the trial against the Accused was due to start shortly,
the Registrar denied the request.
- The Trial Chamber, in reviewing the record available to the Registrar at
the time the request was made,244 can find that
there were no factors that the Registrar failed to take into consideration
when determining whether sufficient grounds for the disqualification or for
the dismissal of Counsel existed. As has been demonstrated at the May Hearing
and through the Motion, the Accused was not satisfied with the choice of co-counsel,
and due to that choice, became increasingly dissatisfied with lead counsel.
The Trial Chamber recalls that there is no evidence that the Accused was dissatisfied
with Ms. Tomanovic as legal assistant, or indeed, that just prior to her appointment,
the Accused expressed dissatisfaction with the proposal of her as co-counsel.
- While it is clear that the Accused did not like the “choice” of co-counsel,
there are only limited indications of why: at the 25 November 2002
meeting he stated that co-counsel must be “a strong person”, and in the 22
October 2002 letter states that his case demands the engagement of several
military experts and someone who is both from the area and be familiar with
the specific issues in his case. The Accused points out no evidence to support
a finding that Ms. Tomanovic is not sufficiently “strong” or capable as co-counsel.
In terms of being from the area, while Ms. Tomanovic is not “from the area”
where the alleged crimes were committed, she is from Bosnia and Herzegovina,
nearby to the area (unlike the Third Person). Additionally, there are unchallenged
submissions by Counsel that she has familiarised herself with the specific
areas named in the Indictment, both during her time as legal assistant/investigator
and as co-counsel. While there have been no submissions to the effect that
Ms. Tomanovic has a military background (nor, for that matter, have there
been any submissions that the Third Person had a military background), Counsel
submitted that there was a distribution of responsibilities within the defence
team and that outside experts would be retained. Counsel’s Response does indicate
that co-counsel worked with the military experts and was prepared to meet
with the Accused and the military experts; there is no evidence to support
a conclusion that co-counsel was incompetent or ineffective in addressing
military matters. Furthermore, the Trial Chamber would like to emphasise that
what is relevant to its consideration of all counsel appearing before the
Tribunal are their legal qualifications, as reflected in Rule 44 and
Rule 45 of the Rules, including reasonable experience in criminal or international
law. The Tribunal has anticipated that outside experts on particular areas,
including military affairs, may need to be retained by either party to the
proceedings, as evinced by the appearance of Rule 94 bis in the Rules.
- Finally, in relation to claims of ineffective assistance of counsel such
that the interests of justice require the replacement of counsel, which, arguably
the Accused may have been making at the March Hearing in relation to lead
counsel, and is now making in the Motion (as will be addressed below), the
Trial Chamber recalls that the person bringing such a claim must support the
claim. To support such a claim, it must be demonstrated that, inter alia,
counsel failed to act with competence, skill, care, honesty and loyalty; counsel
failed to diligently and promptly protect the client’s best interests; and
failed to keep the client informed about the status of his case.245
- The Trial Chamber has reviewed any implications upon the “effectiveness”
of lead counsel in relation to the appointment of co-counsel above, and will
examine here the broader allegation made through the Motion that the Accused
was not properly informed about the preparation and strategy of his defence.
It is alleged that lead counsel did not communicate with him, and inform him
of motions being filing on behalf of the Accused before they were filed.246
Based on the submissions of Counsel, and the supporting documentation thereto,247
the Trial Chamber finds that there was sufficient communication between the
Accused and lead counsel on the preparation of the defence, and sufficient
communication about the case generally.248 Indeed,
without seeking to violate attorney-client privilege, a cursory review of
the filings sufficiently reveals for the Trial Chamber that such filings could
not have been drafted without input from the Accused.
- The Trial Chamber recalls the finding of the European Court of Human Rights
in the case Artico v. Italy in relation to the rights set out in Article
6 (3)(c) of the European Convention, which is nearly identical to Article
21 (4)( d) of the Statute:
the Convention is intended to guarantee not rights that
are theoretical or illusory but rights that are practical and effective;
this is particularly so of the rights of the defence in view of the prominent
place held in a democratic society by the right to a fair trial, from
which they derive … Article 6 par. 3 (c) speaks of “ assistance” and not
of “nomination”. Again, mere nomination does not ensure effective assistance
since the lawyer appointed for legal aid may die, fall seriously ill,
be prevented for a protracted period from acting or shirk his duties.
If they are notified of the situation, the authorities must either replace
him or cause him to fulfil his obligations. Adoption of the Government’s
restrictive interpretation would lead to results that are unreasonable
and incompatible with both the wording of sub-paragraph (c) and the structure
of Article 6 taken as a whole; in many instances free legal assistance
might prove to be worthless.249
In that case, unlike the present case, the client did not have the benefit
of the appointed lawyer’s services at any point in time, and that therefore
the client did not receive effective assistance of counsel.250
- In relation to the obligation of the Registry to investigate and discover
possible cases of ineffective assistance of counsel, bearing in mind that
the Registry only places those lawyers who satisfy the requirements of Rules
44 and 45 on the list of qualified counsel to be assigned to indigent suspects
or accused pursuant to Rule 45 (B), the Trial Chamber recalls the finding
by the European Court of Human Rights that a state cannot be held responsible
for every short-coming on the part of a lawyer appointed for legal aid purposes.251
In Kamasinski v. Austria, the European Court of Human Rights states:
It follows from the independence of the legal profession
from the State that the conduct of the defence is essentially a matter
between the defendant and his counsel, whether counsel be appointed under
a legal aid scheme or be privately financed. […] [T]he competent national
authorities are required under Article 6, para. 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.252
Indeed, the European Court of Human Rights has found that Article 6 (3)(c)
“cannot be interpreted as securing a right to have public defence counsel
replaced.”253 Applying the standard in Kamasinski,
there were insufficient indications put forward by the Accused for the Registrar
to consider that lead counsel or co -counsel was ineffective or incompetent
in fulfilment of their professional responsibilities (“some other way”),254
nor were there such indications that may have led Registry to conclude proprio
motu (“manifest ”) that lead counsel or co-counsel were ineffective
or incompetent. Accordingly, the Registrar could only find that the grounds
for their disqualification or dismissal were not satisfied.
“Lack of Trust” and “Break-down in Communication”
- At the pre-trial conference, the Trial Chamber was informed by the Accused
that he had no communication with his counsel in over a month. In light of
this declaration, the Trial Chamber asked lead counsel whether he was prepared
to proceed to trial; he responded that he was. The Trial Chamber accordingly
advised the Accused that trial proceedings would commence as scheduled, and
that if he had any new reasons for his request for a change of Counsel, independent
counsel may be appointed to assist him. The Accused was further advised that
until such a time as a decision was made to the contrary, Counsel would continue
to represent him.
- In addition to the Accused’s comments upon the start of trial, on 20 May
2003, the Trial Chamber received an internal memorandum from the UNDU, dated
13 May 2003, in which the UNDU Deputy Commanding Officer informed a representative
of Registry /OLAD that the Accused “is refusing to accept legal documents
and other trial related items from his Lead Counsel, Mr. Karnavas.” The Deputy
Commanding Officer provides an overview of the refused materials and informs
OLAD that “[t]hese items will be kept in safe storage by the Detention Unit
until such time that they can be handed over to Mr. Blagojevic or a member
of his defence team.” Additionally, through communications disclosed to the
Trial Chamber on 3 June 2003, and as included in the Registrar’s Response,
the Trial Chamber was informed that the Accused sent a letter on 6 May 2003
to the Registrar and the presiding Judge of the Trial Chamber, Judge Liu,
informing both persons that he had broken off all contact with lead counsel
on 2 April 2003 and did not wish to have any contact with him either directly
- When the Trial Chamber advised the Accused on 5 May 2003, and again through
its Appointment of Independent Counsel Order of 9 May, that his counsel of
record was Mr. Karnavas and Ms. Tomanovic, the implication for the Accused
was clear: these two persons are the only two persons assigned to represent
him, and in his best interest he must, therefore, work with them; any refusal
to do so will be considered to be undertaken to his own risk or detriment.
To later learn that the Accused further and specifically challenged this through
his 6 May letter to the Presiding Judge is concerning, as the Trial Chamber
did not have an opportunity to explain the consequences of the Accused’s chosen
actions clearly and unambiguously to the Accused. The Trial Chamber, being
now fully informed of the facts, has that opportunity.
- As has been previously stated by this Trial Chamber, an accused does not
have the right to unilaterally destroy the trust between himself and his counsel.
Similarly, an accused does not have the right to claim a break-down in communication
through unilateral actions, including refusals to meet with or receive documents
from his counsel, in the hope that such actions will result in the withdrawal
of his counsel by the Registrar.
- The Trial Chamber finds in the record an indication that lead counsel sought
to maintain a level of trust between himself and the Accused. He did so by
carrying out his professional responsibilities diligently, competently, and
in consultation with his client. As the record indicates, the lead counsel
selected a co-counsel whom the lead counsel, at the time of her selection,
knew was not the choice of his client. He did so, however, after consultation
and prolonged discussion about the qualities necessary in a co-counsel,
the reason for his selection, and importantly, the reasons for his refusal
to select the Accused’s candidate. Lead counsel asserts that this choice was
made while taking into consideration the best interests of his client; reviewing
the record to date, the Trial Chamber would agree with this assessment. Lead
counsel further asserts that this choice was made knowing it would anger the
client; the record reflects that, at least immediately thereafter and then
after some time of co-operation again thereafter, it did so.
- The Trial Chamber is then left to examine whether, knowing the possible
outcome, the choice of Ms. Tomanovic as co-counsel was still a reasonable
one, and whether the resulting expressions of “lack of trust” in lead counsel
due to this choice are reasonable. After making this assessment, the Trial
Chamber will examine the cause of the resulting “break-down in communications”
and the scope of this break -down, and then determine whether it was reasonable.
- Further, in the Motion, the Accused asserts that there is a “breakdown
in communication” between Counsel and Accused about the theory of the case.
The Trial Chamber finds that there are two separate, but related, stages of
the “breakdown in communication”. The first part of the communication breakdown
is that alleged by the Accused and the Independent Counsel, namely, that Counsel
failed in its duty of communication generally, as evident in the manner in
which co-counsel was selected and in relation to the development of the theory
of the case. The Trial Chamber has made its findings on these allegations
above, and will therefore not repeat them here.256
The second as stage of the “breakdown in communication” the breakdown in communication
since 2 April 2003. It is this breakdown in communication that will be discussed
in detail below.
- The Trial Chamber finds that in what circumstances a given counsel decides
to take a decision that may be against the wishes of his or her client because
that counsel, being competent and under professional obligations, genuinely
believes that the decision is in the best interests of the client is largely
a question for counsel, and only counsel to answer. The Trial Chamber must
satisfy itself “only” that the counsel made this decision in light of his
obligations under the Rules, the Directive and the Code, namely the duty of
loyalty, honesty, competency, skill and care, with open communication, and
the over arching duty to act in the best interests of the client. In this
case, the Trial Chamber is satisfied that he did so. As there are no grounds
put forward challenging Ms. Tomanovic’s professional conduct or qualifications,
and recalling that the Accused did not put forward a qualified alternate candidate,
the Trial Chamber must conclude that Mr. Karnavas’s decision to seek the assignment
of Ms. Tomanovic as co-counsel for the Accused was a reasonable decision to
make at the time and in the circumstances that he made it.
- The grounds put forward by the Accused begin with the assignment of Ms.
Tomanovic against the wishes of the Accused; this ground has been dealt with
above. The only additionally comment that the Trial Chamber will make is that
it further finds sufficient indications in the record that the Accused was
on notice that Ms. Tomanovic would likely be appointed co-counsel well in
advance of her assignment, and did not, as far as the record reflects, take
measures at the time to discourage her later assignment. The next ground advanced
by the Accused is that Counsel did not adequately consult with or inform him
of the theory and developments in his case, and took actions that were neither
sanctioned nor even communicated to the Accused. In relation to the communication
between lead counsel and the Accused before the assignment of co-counsel,
as discussed above, based on the submissions of Counsel, and the supporting
documentation thereto, the Trial Chamber finds that there was sufficient communication
between the Accused and lead counsel on this issue.
- In relation to the ensuing “lack of trust” in his lead counsel that developed
on the part of the Accused following the assignment of Ms. Tomanovic, the
Trial Chamber finds that there are no objective grounds to support his “lack
of trust”. It is not contested that Mr. Karnavas was on notice that the Accused
did not want Ms. Tomanovic to be assigned as co-counsel at the time of the
assignment. While the assignment of her anyway may then be viewed objectively
as the basis for friction between the Accused and Counsel, it cannot
be seen objectively as being such an ill-founded decision to take that the
Accused should lose trust in Counsel’s abilities or commitment to his
defence. Counsel’s action subsequent to the appointment of Ms. Tomanovic should
have been such that the Accused would understand the reasons behind the choice
and ensure that the Accused further understood that both lead counsel and
co-counsel were committed to representing him fully. There is no indication
in the record that there actions were otherwise. Therefore this lack of trust
is not a reasonable one. Accordingly, “lack of trust” cannot be found to be
an adequate basis on which to withdraw Counsel.
- On the issue of communication or agreement on the legal theory of the case,
the Trial Chamber recalls that under the Code, counsel must “abide by the
client’s decisions concerning the objectives of representation” and “consult
with the client about the means by which those objectives are to be pursued,
but is not bound by the client’s decision.”257
The Trial Chamber clearly does not and should not delve into the specifics
of the theory of the defence case for an accused who is appearing before it
at trial; for the Trial Chamber, what is central to its analysis is whether
the Counsel abided by the client’s decisions concerning the objectives
of representation, firstly, and secondly, whether Counsel consulted
with the client as to the means by which to achieve those objectives.
The Trial Chamber finds no indication that Counsel acted in a manner contrary
to the objectives of representation, which, as discerned by the Trial Chamber
through the Accused’s submissions, as well as the fact that the Accused has
pled “not guilty” to all charges against him, include a fair trial with a
vigorous defence that seeks to achieve a just and favourable result for Mr.
Blagojevic. Furthermore, the Trial Chamber, as discussed above, finds no indication
that Counsel failed in their duty to consult with the Accused on means to
achieve the objectives of his representation.258
- In relation to the cause and scope of the break-down in communication between
the Accused and Counsel, the submissions of the Accused indicate that the
scope of the break-down in communication is communication from Counsel to
the Accused first, and that as a result of this break-down in adequate communication,
since 2 April 2003 the Accused has then refused to have any further contact
or communication with Counsel. The submissions of Counsel indicate that the
scope of the break-down in communication is limited to the communication from
the Accused to Counsel, and that to the extent possible, Counsel continues
to seek communication (in person, oral or written) with the Accused. Based
on the record, as indicated above, the Trial Chamber finds that the break-down
in communication at this stage, while ultimately affecting all parties, is
best characterised as the ceasing of communication by the Accused with his
Counsel, and indeed, is limited to the period after 2 April 2003.
- The Accused, through his communications to the Registrar and submissions
to the Trial Chamber, has made it clear that he no longer wishes to have any
form of communication with his Counsel. In his letter of 6 May 2003, the Accused
submits that due to the Registry “not acting to enable [him] to choose another
attorney,” the Registry has “isolated” him and “made it impossible for [him]
to receive any information regarding [his] trial.”259
The Trial Chamber cannot agree with this characterisation of the Accused’s
“isolation ”. He has refused to meet with his Counsel, speak with them or
receive any information related to his case – from any party – through them.
It is through his actions and not the Registry’s actions that the Accused
may be feeling “isolated”.260 Equally, it is
up to the Accused to end this “isolation” vis-à-vis his Counsel and resume
communication with them.
- As the Accused has submitted that his refusal to communicate in any form
with his Counsel or other members of the defence team is grounded, inter
alia, in his lack of confidence and lack of trust in his Counsel,261
which the Trial Chamber found to be unsupported, the Trial Chamber therefore
finds that the Accused’s actions in ceasing communications is without good
cause. The Trial Chamber finds that there is no objective justification for
his refusal to communicate with Counsel, and particularly, no reasonable explanation
for not accepting disclosure materials or filings in his case prepared by
parties other than Counsel. The Accused’s refusal to communicate with Counsel
appears to run contrary to his earlier argument that Counsel will not consult
with him on filings or his defence. Ultimately, the Accused’s actions are
only to the detriment of himself. Furthermore, the Trial Chamber emphasises
that such a course of action, when done solely to use as a ground to have
counsel replaced, as a form of protest, is not permissible.
Review of the Registrar’s Decision in Light of Current Circumstances
- In light of the above discussion on the cause of the “lack of trust” and
“break -down in communications” the Trial Chamber concludes that there are
no grounds put forward by the Accused to warrant the Trial Chamber overturning
the Registrar’s Decision. The Trial Chamber finds no new facts that would
warrant that the Registrar review his decision on the withdrawal of lead counsel
or co-counsel. Accordingly, the Trial Chamber finds that Mr. Karnavas shall
remain as lead counsel for Mr. Blagojevic and Ms. Tomanovic shall remain as
co-counsel for Mr. Blagojevic.
What to do – practically – now?
- While the Trial Chamber has found that the assignment of lead counsel and
co -counsel were carried out in accordance with the Statute, the Rules, the
Directive and international practice; that the qualifications and professional
conduct of counsel and co-counsel continues to be in accordance with the Statute,
the Rules, the Directive and the Code; that no sufficient grounds for disqualification
or dismissal of lead counsel or co-counsel have been advanced; that the lack
of trust and break-down of communications between the Accused and Counsel
are not based on objective and reasonable criteria that would call into question
the ability or the competence of either lead counsel or co-counsel to fulfil
their professional obligations to the Accused; and that it is in furtherance
of the Accused’s right to an expeditious trial to proceed with current Counsel,
the Trial Chamber, and indeed the Accused and Counsel, are still faced with
the reality that the Accused’s right to a fair trial may be compromised due
to his refusal to meet with, instruct and make use of the counsel that have
been assigned to represent him. Short of taking the extraordinary and unjustified
measure of withdrawing otherwise qualified, effective, committed and prepared
Counsel, what should the Trial Chamber do? In asking this question, the Trial
Chamber would like to emphasise that it is not required to take any
further action. As has been amply discussed herein, the Trial Chamber finds
that the Accused has not convinced the Trial Chamber that it needs
to take any action. Thus, any steps which the Trial Chamber takes are discretionary262
and in its overarching interest and commitment to ensuring that in the case
of the Accused, justice is not only done but justice is seen to be done, including
by the Accused himself.
- Based on the conclusions it has drawn from the record, the Trial Chamber
finds that its options are rather limited. It does not have grounds upon which
to order the disqualification of Counsel, such as evidence of misconduct,
or the grounds upon which to order the dismissal of Counsel, such as failure
to comply with obligations under the Code or an apparent conflict of interest
with the Accused. As a matter of fairness to the Accused, and his co-accused
Dragan Jokic, the Trial Chamber would view the ensuing delay in proceedings
caused by the unnecessary replacement of counsel, which could not amount
to less than five-six months and still guarantee the Accused’s right to informed
and prepared counsel in the circumstances of this case, as a violation of
their right to an expeditious trial. Further, as a matter of policy, this
Trial Chamber does not want to encourage a course of action by which accused
appearing before this Tribunal can unilaterally destroy their relationship
with assigned counsel and then be granted new lead counsel – and co-counsel
– of their choosing. This course of action, particularly in the advanced stages
of these complex proceedings, could lead to a long delay of proceedings before
- The Trial Chamber believes that a somewhat extraordinary, but certainly
less -drastic measure than that which the Accused requests, may be of assistance
to all concerned in this matter. In light of current circumstances, and in
an effort to promote better communication between the accused and counsel,
a special step needs to be taken. While lead counsel and co-counsel will continue
to be the assigned counsel representing and defending the Accused in this
case and in all proceedings before the Tribunal, an additional resource shall
be given to the Accused for a limited period of time. In a effort to improve
relations between Accused and Counsel, the Trial Chamber will ask the Registrar
to assign, in consultation and agreement with the Accused, a “legal representative”
for a fixed period of time to work with the Accused and his defence team,
to assist Mr. Blagojevic to re-establish a normal working relationship with
his defence team and ensure that Mr. Blagojevic’s interests are being wholly
- After careful assessment of the facts presented, and a review of the jurisprudence
of the Tribunal and international human rights standards, this Trial Chamber
arrives at the following conclusions.
- In assessing whether assigned counsel for an accused should be withdrawn,
it is for the person seeking the withdrawal to satisfy the Registrar that
he should exercise his discretion to withdraw such counsel “in the interests
of justice”. The factors or grounds that are of relevance to such a determination
include, but are not limited to, fulfilment of professional obligations and
responsibilities; satisfaction of qualification requirements pursuant to the
Rules of the Tribunal ; the existence of a conflict of interest; engagement
in any form of misconduct; and performing responsibilities with diligence,
competence and loyalty towards the client. The burden of proof is squarely
on the person requesting the withdrawal of assigned counsel to demonstrate
good cause for the withdrawal of assigned counsel. Accused should, therefore,
take great care in working with the Registrar to select their counsel.
- There is no absolute right for an indigent accused to choose his or her
assigned counsel. This is a limited right, and it is within the Registrar’s
discretion to override the wishes of an accused if relevant and sufficient
grounds exist for holding that this is necessary in the interests of justice.
- There is no right to co-counsel; co-counsel may be appointed in the interests
of justice and upon the request of lead counsel. While serving under the direction
of lead counsel, co-counsel is bound to carry out his or her professional
responsibilities in the best interests of the accused, and in accordance with
all obligations under the Rules, the Directive and the Code of the Tribunal.
- One aspect of the right to a fair trial is the right to an expeditious
trial. Immediately before or at any time after the commencement of trial proceedings,
only the most exceptional motions for withdrawal of counsel will be entertained,
as any replacement of counsel will have an effect on the accused’s right to
be tried expeditiously.
- In this case, the Trial Chamber recognises that friction exists between
the Accused and his Counsel. Friction is not, however, equal to a fundamental
lack of trust due to misconduct or manifest negligence. Choosing to cease
communications with counsel is not equivalent to counsel breaching their obligation
to communicate and consult with their client. A lack of trust in counsel based
on disagreements in approach to ones defence, including the criteria upon
which to determine the appropriate candidate for co-counsel, is distinguishable
from a lack of trust due to a breach by counsel in fulfilling his professional
and ethical responsibilities in the course of representation.
- Finally, defence counsel have an ethical obligation to promote trust and
to build trust. Counsel should always act in a manner to earn the trust of
their clients. The Trial Chamber calls on Counsel to work with the legal representative
to rebuild the Accused’s trust in their professional abilities and their commitment
to provide him with competent, diligent and zealous representation in the
proceedings before this Trial Chamber.
PURSUANT TO Rule 54 and Rule 73 of the Rules of the Procedure,
the Trial Chamber hereby DISMISSES the Motion, and ORDERS that:
- The Registrar shall appoint, in consultation with the Accused, a legal
representative to assist the Accused and his defence team in the preparation
of his defence before the Tribunal in accordance with the terms specified
below no later than 10 days after the issuance of this Decision;
- The legal representative, who shall not fall under the lead counsel’s
authority or be remunerated from the resources currently granted to Counsel,
must share Counsel’s objectives in ensuring that the Accused receives a
fair and expeditious trial and a competent, effective and zealous defence.
Towards that end, the legal representative shall work with the Accused and
Counsel, not simply as a “bridge” or interlocutor, but as a temporary addition
to the Accused’s defence team, to contribute as the Accused, primarily,
and Counsel, see fit to ensure the proper working and effective presentation
of the Accused’s defence. It is primarily, therefore, for the Accused, through
his actions, to assess how effective his Counsel can be in ensuring
that his rights are protected and interests are promoted; and
- The terms of the assignment of the legal representative are:
- the legal representative shall be a person who meets the qualifications
of counsel pursuant to Rule 44 and Rule 45 of the Rules, and is currently
on the list of counsel maintained by the Registrar pursuant to Rule
45 of the Rules;
- the legal representative shall be assigned for a period of up to
- the legal representative is a compliment to the defence team and
is not a replacement ; the Accused must work with his Counsel, through
whatever means he finds most appropriate, while recognising that the
legal representative’s appointment is a temporary and extraordinary
measure to normalise the situation;
- the legal representative has the right to appear in court;
- the legal representative is bound by lawyer-client privilege;
- in the event that the Accused has a specific issue he would like
to raise before the Trial Chamber, he may do so through Counsel or,
upon being granted leave, through the legal representative
- the legal representative will not have the right to examine and
cross-examine witnesses ; and
- the legal representative shall be paid at a rate between legal assistant
and co- counsel, to be determined by the Registry.
AND FURTHER ORDERS that this Decision be translated into B/C/S
with the highest priority, and a B/C/S translation of this Decision be delivered
to the Accused by a representative of the Registry, and thereupon inform
the Trial Chamber of such delivery.
Done in English and French, the English version being authoritative.
Judge Liu Daqun
Dated this third day of July 2003,
At The Hague
[Seal of the Tribunal]
1 - At the time of the May Hearing, trial proceedings
against Vidoje Blagojevic were adjourned. Scheduling Order, 26 May 2003. During
the course of considering the Motion, the Trial Chamber further adjourned trial
proceedings until 7 July 2003. Decision on Prosecution’s Motion for a Stay of
Proceedings pending Resolution of the Issue of Vidoje Blagojevic’s Representation,
filed confidentially on 18 June 2003.
2 - Order to Lift Confidentiality. The Trial Chamber also ordered
that a redacted version of the Motion should be disclosed to the Office of the
Prosecutor (“Prosecution”) and to the co-accused, Dragan Jokic.
3 - Motion of the Registrar (“Registrar’s Response”). The Trial
Chamber lifted the ex parte nature of the Registrar’s Response in relation
to the Accused, the independent legal counsel assigned to assist him on this matter,
namely, Mr. Jan Sjöcrona (“Independent Counsel”), and Counsel on 12 June 2003.
4 - Prosecution’s Response to Independent Counsel for Vidoje
Blagojevic’s Motion to Instruct Registrar to Appoint New Lead and Co-Counsel (“Prosecution’s
Response”). The Trial Chamber lifted the ex parte nature of the Prosecution’s
Response in relation to the Accused, the Independent Counsel, and Counsel on 13
5 - In the same Order, the Trial Chamber lifted the ex parte
nature of Counsel’s Response in relation to the Accused and the Independent Counsel
on 17 June 2003 (Order to Lift Confidentiality and Scheduling Order).
6 - See, Motion by Independent Counsel in Relation to Response
to Counsel’s and Co-Counsel’s and the Registrars [sic] Response to Independent
Counsel’s Motion to Instruct the Registrar to Assign New Defence Counsel, 27 June
2003. Decision on Motion by Independent Counsel in Relation to Response to Counsel’s
and Co-Counsel’s and the Registrar’s Response to Independent Counsel’s Motion
to Instruct the Registrar to Assign New Defence Counsel, 1 July 2003 (denying
the extension of time as no good cause was demonstrated to warrant such a delay).
7 - Decision by the Registrar Assigning Counsel as of 31 August
2001, dated 3 September 2001 and filed 5 September 2001. The initial appointment
of Mr. Karnavas was for 120 days, pending the review of Mr. Blagojevic’s financial
status. The appointment of Mr. Karnavas was renewed on 24 December 2001.
8 - Judge Schomburg asked Mr. Karnavas: “What is the position
of yours and, of course, your client as regards second Defence counsel in this
case?” Status Conference, 19 July 2002, T.12.
9 - Decision by the Registrar Assigning Counsel as of 25 September
2002, dated 2 October 2002 and filed 3 October 2002. The Decision states: “Considering
that on the basis of Article 16 (C) of the Directive, the Registrar may upon a
request of the lead counsel, assign a second counsel in the interests of justice.”
10 - Status Conference, 27 November 2002, T.40.
11 - Id., T.103.
12 - Id.
13 - Id.
14 - At the hearing, defence counsel for Mr. Blagojevic, the
Prosecution and representatives of the Registry/Office of Legal Aid and Detention
Matters section (“OLAD”) were present.
15 - November Hearing, T.107.
16 - Id. When asked by the pre-trial Judge whether the
Accused was in fact asking for the replacement of his entire defence team, the
Accused responded that “if my counsel, Mr. Michael Karnavas, thinks that this
whole thing is not feasible with the co-counsel he himself has appointed, then
I no longer trust this Defence team and this kind of defence.” Id., T.120.
17 - Id., T.107.
18 - Id., T.110.
19 - November Hearing, T.120-21.
20 - Id.
21 - Id., T.115. Lead counsel further states that when
he asked Mr. Blagojevic why he wanted the Third Person and where he got this name
from, the Accused did not answer him. Id., T.121.
22 - Id., T.115. Lead counsel further submitted that
the Accused wanted to have the Third Person “so he can direct this person […]
That is unacceptable as far as I’m concerned. There cannot be two leaders in a
team. I cannot be proceeding in preparing his case while at the same time co-counsel
is working under his direction […].”
23 - Id. Mr. Karnavas said that he had full confidence
in her experience as he had worked with her for two years prior to his assignment
to Mr. Blagojevic. Mr. Karnavas further submitted that Ms. Tomanovic had been
working on the case diligently, had been assisting Mr. Blagojevic’s family and
had spent “hundreds of hours” learning the details of the case, adding “I have
not seen anything that would give me any indication that she’s anything less than
100 per cent committed to ensuring [the Accused’s] rights.” Id., T.116
and T.122, respectively.
24 - November Hearing, T.116 and T.122.
25 - Id., T. 117.
26 - Id., T.112-13.
27 - Id., T.113-14.
28 - November Hearing, T.114.
29 - Id., T. 111.
30 - Id., T.118.
31 - Id., T.118-19.
32 - November Hearing, T.118.
33 - IT/73/Rev.9.
34 - November Hearing, T.118.
35 - Id.
36 - The Trial Chamber also received copies of two letters
submitted by the Accused to the Registry/OLAD on the matter of assignment of his
co-counsel, dated 10 October 2002 and 22 October 2002, after the November Hearing.
In the second letter, the Accused submits that, inter alia, the “nature of my
case demands the engagement of several military experts and someone who is from
that area and familiar with the specific issues in my case.”
37 - Decision on Oral Motion to Replace Co-Counsel, 9 December
2002 (“Trial Chamber Decision”).
38 - Trial Chamber Decision, page 4.
39 - Id., pages 4-5.
40 - Id., page 6.
41 - Status Conference, 27 March 2003, T.125-26.
42 - Present at the hearing were the Accused, Counsel and representatives
of the Prosecution.
43 - March Hearing, T.160-61. Mr. Blagojevic submitted “if
I have been given opportunity to suggest or to give my consent or within certain
limits choose the persons who will defend me in this very delicate and complex
case, then I think it should be made possible for me to exercise this right in
reality. If the outcome is being imposed on me and if my word doesn’t have any
significance at all, then I have reasons to be concerned.” He further submitted
that the issue of his counsel is “still causing him concern” and affects his “psychological
44 - Id. The Pre-Trial Conference was held on 5 May
2003; at the time of the March Hearing, the trial was scheduled to commence on
6 May 2003. He further stated that with the start of trial coming, he had “many
other more important things that I need to handle,” and hoped that the situation
would be resolved “favourably”.
45 - March Hearing, T.167.
46 - Id., T.172.
47 - Id.,T.167. Lead counsel further stated that “ethically
I could not go forward on a case of this magnitude with somebody who absolutely,
you know, is brand new to the case.” Id., at T.171.
48 - Id., T.168.
49 - Id., T.168-69. The Trial Chamber notes that, pursuant
to the Directive, Article 19(A)(i), it is for the Registrar to decide if the assignment
of counsel may be withdrawn, “in the interests of justice”. The Trial Chamber
recalls Counsel in this case are assigned, not appointed. As such, Counsel have
an obligation towards the client, and to the Tribunal, to ensure that the Accused
receives a fair trial. See, Prosecutor v, Jean-Bosco Barayagwiza, Case.
No. ICTR-97-19-T, Decision of Defence Counsel Motion to Withdraw, 2 November 2000
(“Barayagwiza Decision”), para. 22: “The aim is to obtain efficient representation
and adversarial proceedings.”
50 - March Hearing, T.169.
51 - March Hearing, T.171.
52 - Id., T.171.
53 - Id., T.172.
54 - Id., T.172.
55 - In the time between the March Hearing and the Registrar’s
Decision, this case was transferred from Trial Chamber II to Trial Chamber I,
Order Assigning Judges to a Case before a Trial Chamber, 1 April 2003.
56 - The Registrar’s Decision was provided to the Accused in
B/C/S on 10 April 2003.
57 - A member of the Trial Chamber’s legal staff was advised
by an OLAD representative that, upon receiving a letter from the Accused dated
7 April 2003, and therefore written before the Registrar’s Decision, in which
the Accused stated that he had dismissed Mr. Karnavas, she met with the Accused
on 14 April 2003. In this meeting, the OLAD representative informed the Accused
that the Registrar’s Decision did not allow for the removal of Mr. Karnavas. The
OLAD representative advised the Trial Chamber representative that Mr. Blagojevic
did not agree with the Registrar’s Decision, but that he would not appeal the
decision to the President; he would, however, raise the issue before the Trial
Chamber at the start of trial. The Trial Chamber received this letter, as well
as additional communications between the Registry/OLAD and the Accused related
to the issue of assignment of counsel pursuant to an Order to the Registry, dated
2 June 2003 (confidential and ex parte), on 3 June 2003. In the letter
the Accused states, in part: “I have dismissed the above defence counsel [Mr.
Karnavas] because he has made a number of serious mistakes and acted wilfully
at the expense of my defence. He has done unpardonable and continuing damage to
my case since July 2002. I have absolutely no confidence in him as my defence
counsel in this case, neither do I trust the work of his defence team. As of this
date I will not acknowledge or accept any engagement by him with respect
to my case.”
58 - Pre-Trial Conference, T. 204. The Accused later stated:
“I fired [Mr. Karnavas]. I do not permit him to be involved in my case.” Id.,
59 - Id, T.204.
60 - Id, T.205. The Accused further stated that “the
Registry did not find it fit to respond to me so that I could resolve the issue
of the Defence counsel.” In reference to the Registrar’s Decision, the Accused
later stated: “This decision, if I may call it that, of the Registry which you
have just mentioned has absolutely nothing to do with my decision to fire this
lawyer. It has to do with something completely different, because, please, if
that decision is relevant, then I really don’t know what to say.” Id.,
61 - Id., T.205. The Accused further stated: “This can
be substantiated in several ways but, please, do not exhaust me. I have the right
to this and I would be the sorriest person on earth if I had to tell myself now
that I should trust somebody that I’m not able to trust due to his actions to
date. I am not very clear in this and you may – what I’m saying now, I would like
you to be aware of that and you can ask me to provide any kind of argumentation,
and I have the arguments that I think that the trust that has been lost cannot
be replaced, particularly in light of the events of the past year, especially
since last July.”
62 - Pre-Trial Conference, T.206.
63 - Id.
64 - Id., T.255.
65 - Id., T.207.
66 - Pre-Trial Conference, T.256.
67 - Id., T.256-58. The Accused added: “I simply do
not trust [Mr. Karnavas] any longer and all that you are doing now and that you
are imposing on me the decisions that he will continue to represent me, is disastrous
for my standing here, and if that is the objective, then I’m really at a loss
for words.” Id., T.260. The Trial Chamber notes that the discussion at
the Pre-Trial Conference focused on general issues related to the trial proceedings
and a substantive discussion on proposed Rule 92 bis witnesses, a motion
that had been filed on 14 February 2003, and to which the Blagojevic Defence had
filed a response on 31 March 2003.
68 - Id., T.261.
69 - Order on the Appointment of Independent Legal Counsel,
9 May 2003 (“Appointment Order of Independent Counsel”), page 8.
70 - 14 May 2003, T.298.
71 - Decision by the Registrar, 23 May 2003.
72 - May Hearing, T.748.
73 - Appointment Order of Independent Counsel, page 7. See,
Rule 45 (“Assignment of Counsel”) of the Rules.
74 - See, e.g., Rule 44(B) of the Rules (“Appointment, Qualifications
and Duties of Counsel”); Rule 46 (A)(ii) of the Rules (“Misconduct of Counsel”);
Art. 13 of the Directive (“Remedy against the Registrar’s Decision”); Art. 14
of the Directive (“Qualifications and Standing of Counsel”); and Art. 18 of the
Directive (“Ability of suspects or accused to remunerate counsel”).
75 - See, e.g., Prosecutor v. Miroslav Kvocka, Mlado Radic,
Zoran Zigic & Dragoljub Prcac, Case No. IT-98-30/1-A, Decision on Review of
Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic, 7 February 2003 (“Zigic
Decision”). Paragraph 12 of the Zigic Decision states, in part: “The Registrar
correctly described the inquiry which he conducts into the means of an accused
pursuant to Article 10 (A) of the Directive as an administrative fact-finding
procedure.” See also, Prosecutor v. Milan Martic, Case No. IT-95-11-PT,
Decision on the Appeal of the Defence against Registry Decision Dated 25 September
2002, 3 December 2002 (“the competence of the Chamber concerning the decisions
of the Registrar in these matters is limited to the verification of the correct
application of dispositions of the Directive; that, in relation to the accused’s
financial status, the Chamber is restricted to ensuring that such a decision does
not exceed the limits of the Registrar’s discretion in a manner that would affect
the rights of the accused to a fair and an effective defence […] the Chamber is
not satisfied that the Registry Decision violates or even touches upon the fundamental
rights of the accused to a fair trial and an effective defence”).
76 - Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic
and Amir Kubura, 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 (“Hadzihasanovic Decision”).
77 - Zigic Decision, para. 13.
78 - Article 19 of the Directive provides, in relevant part:
(A) In the interests of justice, the Registrar may: (i) at the request of the
accused, or his counsel, withdraw the assignment of counsel; (ii) at the request
of lead counsel withdraw the assignment of co-counsel. […] (C) 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); or (iii) where counsel
has been found to be in contempt pursuant to Rule 77 of the Rules. (D) In such
cases the withdrawal or suspension shall be notified to the accused, to the counsel
concerned and to his professional or governing body. (E) The Registrar shall immediately
assign a new counsel to the suspect or accused.
79 - Article 19 (F) of the Directive provides: Where a request
for withdrawal, made pursuant to paragraph A, has been denied the person making
the request may seek the President’s review of the decision of the Registrar within
two weeks from the notification of the decision to him.
80 - Appointment Order on Independent Counsel, page 7. See
also, Trial Chamber Decision; Hadzihasanovic Decision; Prosecutor v.
Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96-21-A,
Order on Esad Landzo’s Motion for Expedited Consideration, 15 September 1999.
See also, Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72,
Decision (Request for Withdrawal of Defence Counsel), 31 January 2000 (“considering
that in respect of a decision to assign counsel to represent an Appellant before
the Appeals Chamber, a right of recourse to the Appeals Chamber is required for
the effective exercise of the Appellant’s right under Article 20(4) of the Statute
of the [ICTR]”).
81 - The Trial Chamber does not intend to suggest that the
assignment or appointment of counsel is an unimportant matter or a matter that
could not, in itself, have implications on the Accused’s fundamental rights to
a fair trial. Rather, the Trial Chamber seeks to distinguish assignment of counsel
issues that are more “administrative” in nature from those issues which impact
heavily on fundamental and substantive rights of the accused.
82 - See, Hadzihasanovic Decision, para. 18.
83 - See, Id., para. 21, in part: “The Chamber considers
that the issue of qualification, appointment and assignment of counsel, when raised
as a matter of procedural fairness and proper administration of justice, is open
to judicial scrutiny. [...] Problems relating to the defence of an accused will
affect the conduct of a case over which a Chamber has not only the power but also
the duty to regulate in accordance with the statutory requirements for a fair
and expeditious trial. Such requirements are part of the mandate of the International
Tribunal to ensure that justice is seen to be done. […].”
84 - See, Id., para. 23: “The Chamber therefore finds,
that the concrete issue of qualification, appointment and assignment of counsel
is properly within the jurisdiction of this Chamber where it can be shown that
it affects, or is likely to affect, the right of the accused to a fair and expeditious
trial or the integrity of the proceedings.”
85 - At the May Hearing, the Independent Counsel provides a
history of the Accused’s requests and steps to implement those requests including,
inter alia: 7 April 2003, letter to Registrar informing him that he does
not wish to be represented by Mr. Karnavas and co-counsel, and stating that he
dismissed them; 3 April 2003, letter to the Registrar to discuss the issue of
co-counsel; 2 April 2003, the Accused breaks off all contact with his Counsel
and ceases to receive documentation from them; 25 November 2003, meeting with
OLAD representative at which Accused states he wants co-counsel replaced and will
accept someone other than the Third Person as replacement; late September/early
October 2002, meeting with OLAD representative. May Hearing, T.749-50, 754, 756.
See also, Id., T. 763: “The Accused has not kept silent … he has constantly
asked the attention of the Tribunal for his problems with his current Defence
86 - May Hearing, T.760-61. See also, Motion, paras 20-22.
Independent Counsel submits that the Accused did not appeal the Registrar’s Decision
because he did not know how to, and no one told him how to do so.
87 - Id., T.748.
88 - Motion, para. 30. (emphasis in original). Independent
Counsel further submits: “How Mr. Karnavas could have envisaged that, particularly
in his absence, there could be a good working relationship based on communication
and mutual trust between client and co-counsel is difficult to understand.” Id.,
89 - May Hearing, T.750. While at both the May Hearing and
in the Motion Independent Counsel states that his Status Conference was held in
March 2002, the question was in fact raised at a Status Conference held on 19
July 2002. Accordingly, the Trial Chamber uses July 2002 rather than March 2002
as the starting point for “the lack of trust due to communication problems”.
90 - Id., T.750.
91 - Id., T.750-51.
92 - Independent Counsel asserts that it was part of lead counsel’s
professional obligations to consult with the Accused on the composition of the
entire defence team in order to create a situation of trust and communication
with the Accused. Motion, para 32.
93 - May Hearing, T.751. The Accused submits he repeated this
to Ms. Tomanovic in July or August 2002.
94 - Id., T.751.
95 - Id., T.752.
96 - Id., T.752.
97 - May Hearing, T.752.
98 - Id.
99 - Id., T.753.
100 - Id., T.753. The Trial Chamber notes that while
Independent Counsel stated “December” the correct month is “September”.
101 - Id., T.753.
102 - May Hearing, T.753.
103 - Motion, para. 26: “The Registry has been duly informed
by Mr. Blagojevic that he did not appreciate Ms. Tomanovic being appointed. He
expressed his concerns in this respect (among others) to Ms. Oseredczuk of the
Registry.” Independent Counsel attached an internal memorandum of the minutes
of a meeting of 25 October 2002 between the Accused and Registry representatives
and states that comments made by the Registry representative implied that Mr.
Blagojevic had the option to change his counsel. Id., para. 66.
104 - Motion, para. 34.
105 - May Hearing, T. 754. See also, Motion, para. 28.
106 - Motion, para.73. The minutes of this meeting were disclosed
to the Trial Chamber pursuant to its 2 June 2003 Order.
107 - May Hearing, T. 755. The Trial Chamber notes that this
explanation had not been given during the March Hearing.
108 - Id., T. 755.
109 - Id., T. 749.
110 - Id., T. 748-49.
111 - Motion, paras 38-41. In relation to a motion, Independent
Counsel cites a letter of 17 December 2002, which is attached to the Motion, where
the lead counsel informed the Accused about the filing of the motion, and specifically
the line “The objection will be translated, so that you can examine it.” Also
in this letter, the Accused asked that the pre-trial brief be brought to him at
the UNDU in B/C/S on 6 January 2003.
112 - Id., T.749-50. Independent Counsel further submitted:
“So this man is basically left sitting in the Detention Unit without his Defence
counsel on a regular basis, presenting their ideas, asking for his input.” Id.,
113 - Motion, para. 47. Independent Counsel further submits:
“It is impossible to envisage how Mr. Karnavas could or can believe that a good
and open working relationship between him, his team, and Mr. Blagojevic would
be possible given the fact that he expresses total lack of feeling towards his
clients, even being willing to cope with an angry client.” Id., para. 60.
114 - May Hearing, T.755.
115 - May Hearing, T.756.
116 - IT/125/Rev.1, 12 July 2002.
117 - Independent Counsel cited Articles 8 and 12 of the Code,
and the Code of Counsel Conduct for Lawyers in the European Union.
118 - May Hearing, T.757.
119 - Id., T.757-58.
120 - Id., T.758.
121 - Id., T.759.
122 - Id., T.760.
123 - Counsel’s Response, para. 2.
124 - See, supra, para. 7. Counsel’s Response paras
3-10. Counsel attached a letter from the Judge in Bosnia-Herzegovina who attended
the first meeting [in August 2001] between lead counsel and the Blagojevic family,
in which he states, inter alia, “The meeting ended in an agreement and
acceptance of your [lead counsel’s] conditions under which to defend; i.e. that
you, as the lead counsel, are exclusively entitled to select the defence team,
select other members in the team from among attorneys and investigators.[…] Finally,
the family of the accused accepted your conditions of defense without any financial
obligations of the defence counsel towards the family of the accused Vidoje Blagojevic.”
125 - Id., para. 5.
126 - Id., paras 7 and 9-10. “Counsel explained that
these terms were not subject to negotiation, noting that these strict and unconditional
terms were warranted in light of: a. the magnitude of the case, b. the sensitivity
of the disclosure material, c. the quality of representation required for the
charges in the indictment, d. the seriousness of the Tribunal, and e. the responsibility
placed on [lead] counsel, who, ultimately is accountable for the entire Defence
team and representation of accused.” Id., para. 7.
127 - Id., para. 7
128 - Id., para. 9.
129 - Counsel’s Response, para. 12. The reason for the delay
in assigning co-counsel was due to limited hours granted to lead and co-counsel.
130 - In letters to OLAD, lead counsel expressed concern sharing
interpreters with co-accused. An interpreter was subsequently assigned to the
131 - Counsel’s Response, para. 12.
132 - Id., para. 16.
133 - Id., para. 20.
134 - Id., para. 21.
135 - Id., paras 21-24. See supra, para.5.
136 - Counsel’s Response, para. 21.
137 - Id., para. 21.
138 - Id., para. 24. Counsel submit that the Accused
was only willing to consider someone other than the Third Person after the Registry
found the Third Person to be unqualified.
139 - Id., para. 25.
140 - Id., para. 26.
141 - Counsel’s Response, para. 27.
142 - Id. Counsel attached the letter to the Registry
of 26 September 2002 to their response; it is discussed in more detail below.
143 - Id., para. 28.
144 - See, e.g., Counsel’s Response, para. 46.
145 - Counsel’s Response, paras 11-19.
146 - Counsel attached communications between lead counsel
and the Accused in relation to substantive work on his case; communications between
lead counsel and OLAD on defence resources and travel requests, with explanations;
the visitor’s log from the United Nations Detention Unit showing the dates and
length of the visits of lead counsel and/or co-counsel with Mr. Blagojevic.
147 - Counsel’s Response, para. 15.
148 - Id., paras 17-19.
149 - Id., para. 33. Supporting documentation is attached.
150 - Id., fn.45.
151 - Id., para. 20.
152 - Counsel’s Response, para. 30. Counsel point to the fact
that members of the Accused’s family were present at the Status Conference, which
is further evidence that the Accused knew of the date of the Status Conference.
Additionally, Counsel submit that during the first break in the Status Conference,
the Accused asked co-counsel to check on his family.
153 - Id., para. 30. See also, para. 49. Supporting
material of correspondence from lead counsel to the Accused in which certain filings
are discussed is attached; included therein is an indication that lead counsel
sought an extension of time to meet with the Accused, as requested, to discuss
the pre-trial brief, and that lead counsel had previously been prepared to meet
and discuss related filings with the Accused, but the Accused refused to meet
154 - Id., para. 31. See also, para. 43.
155 - Id., paras 31-32.
156 - See, supra para. 41.
157 - Counsel’s Response, para. 40 (a).
158 - Id., para. 40(b).
159 - Id., para. 40 (c).
160 - Counsel’s Response, para. 51.
161 - Id., para. 44.
162 - Registrar’s Response, para. 24. See, supra, para.
163 - Namely, Art. 21 of the Statute, Rules 44 and 45 of the
Rules; and Articles 16 (C) and 19 (A) and (F) of the Directive.
164 - Registrar’s Response, para. 25. (emphasis in original).
165 - Id., para. 28.
166 - Id., para. 35. The Trial Chamber notes that in
the letter, which has been attached, lead counsel further states that “a few months
into the case, the issue [of co-counsel] was discussed again, and it was agreed
that Ms. Tomanovic should indeed be recommended for the position of co-counsel.”
The Trial Chamber further notes that both the Accused and the Third Person were
copied on the letter.
167 - Id.,, para. 35. The Registrar further states
that through his letter, lead counsel “strongly indicated that [he] would not
consent to such an assignment [of the Third Person].” Registrar’s Response, para.
168 - Id., para. 34, referring to the letter of request
from the Accused of 25 September 2002, and correspondence from the Third Person
to the Registry of 13 November 2002.
169 - A meeting was held between Registry representatives
and lead counsel on 22 November 2002, during which lead counsel expressed his
concerns regarding the qualifications of the Third Person, following his two meetings
with the Third Person to the Registry. Registrar’s Response, para. 39.
170 - Registrar’s Response, para. 41.
171 - Id., para. 42.
172 - Id. The Registrar further submits that pursuant
to Article 72 (2) of the Code, counsel are expressly prohibited from contacting
or communicating with the client of another counsel without that counsel’s express
permission. Registrar’s Response, para. 97.
173 - Registrar’s Response, para. 70.
174 - Id., para. 71.
175 - Id., para. 72.
176 - Id., paras 73-76. Specifically, the Registry
cited, inter alia, Prosecutor v. Ngeze, Case No. ICTR-97-27-I, Decision
on the Accused’s Request for the Withdrawal of His Counsel, 29 March 2001 (“It
is clear that the accused is not entitled as of right to have co-counsel, investigators
and legal assistants appointed; nor can he assert the right of decision over the
appointment or termination of their contracts. As stated above, these are matters
for lead counsel.”).
177 - Id., paras 77-78, citing Croissant v. Germany,
Eur. Ct. H.R., Judgement, 25 September 1992, Series A No. 237-B, para. 29. Paragraph
78 of the Registrar’s Response deals specifically with the issue of the right
of accused to request withdrawal of counsel, citing Lagerblom v. Sweden,
Eur. Ct. H.R., Judgement, Application no. 26891/95, 14 January 2003, and Kamasinski
v. Austria, Eur. Ct. H.R., Judgement, 19 December 1989, Series A No.168. The
Registrar also cites Erdem v. Germany, Eur. Ct. H.R., (dec.), no. 38321/97,
9 December 1999 unreported, in which a German court refused to replace an assigned
counsel with a legal aid counsel of the applicant’s own choosing on grounds that
first counsel had attended the entire first-instance proceedings and could therefore
not be regarded as less qualified to represent the applicant than the new counsel
proposed by the applicant.
178 - The translated versions of which were received by the
Registrar on 20 January 2003.
179 - The Trial Chamber is in possession of these communications.
180 - The Registry further submits that it took into consideration
the timing of the complaint: pursuant to a new provision to the Directive, the
Accused’s brother could no longer serve as an official, paid member of the Accused’s
defence team. His assignment as investigator had been withdrawn that day. Registrar’s
Response, para. 51.
181 - Registrar’s Response, para. 51.
182 - Id., para. 52. The Trial Chamber notes that it
was not advised of this complaint by the Accused until after the May Hearing.
183 - Id., para. 80.
184 - Id., para. 56. The Trial Chamber notes that according
to the UNDU log, Ms. Tomanovic was not present at any of the meetings held with
185 - Id., para. 57. The Trial Chamber notes that the
Registry did not receive the Accused’s letter of 7 April 2003 until after the
Registrar had issued his decision on 8 April 2003.
186 - Registrar’s Response, para. 60.
187 - Id., para. 63. As discussed below, this letter
was also addressed to Judge Liu, but the Trial Chamber was not informed of its
existence or contents until after the May Hearing.
188 - Id., para. 63.
189 - Id., para. 64.
190 - Id., para. 65.
191 - Registrar’s Response, para. 67.
192 - Id.,, para. 80. The Registrar cites a letter
from lead counsel of 5 March 2003 in which he estimated that it would require
a minimum of 750-1000 hours for a new co-counsel to become acquainted with the
case. Id.,, para. 81.
193 - Id., para. 92.
194 - Registrar’s Response, paras 94-96 and para. 101.
195 - Id., para. 102.
196 - Id., para. 103.
197 - Id., para. 104.
198 - Registrar’s Response., para. 107.
199 - Id.
200 - Prosecution’s Response, para. 6. The Prosecution had
previously sought clarification on the issue of assignment of the Accused’s Counsel,
but had not taken a position in relation to the merits of the request. See, Prosecution’s
Motion for Expedited Hearing to Clarify the Record Regarding Blagojevic Assignment
of Counsel, filed confidentially on 4 April 2003, which was withdrawn following
the Registrar’s Decision. The Trial Chamber recalls that the Prosecution has not
been granted access to either Counsel’s Response or the Registrar’s Response.
201 - Prosecution’s Response, para. 13.
202 - Prosecution’s Response, para. 7, citing Prosecutor
v. Delalic et al., Case No. IT-96-21-T, Decision on Request by Accused Mucic
for Assignment of New Counsel, 24 June 1996.
203 - Id., para. 7, citing Prosecutor v. Ranko Cesic,
Case No. IT-95-10/1-PT, Decision of the Registry, 8 January 2003.
204 - Id., para. 8.
205 - Id.,, para. 9. The Prosecution cites disclosure
of new material, the amendment of the Indictment and, “most importantly”, the
plea of guilty by two former co-accused since May 2003 and their agreement to
testify in the case against the Accused as significant developments in the case,
during and after the occurrence of which the Accused has had no contact with counsel.
Without communication and instructions from the Accused, the Prosecution submits
that lead counsel cannot present a defence for the Accused. Id., para.
206 - See, e.g., International Covenant on Civil and Political
Rights, Art. 14 (3)(d); European Convention for the Protection of Human Rights
and Fundamental Freedoms (“European Convention”), Art. 6 (3)(c).
Article 21 (4)(d) of the Statute provides: In the determination of any charge
against the accused pursuant to the present Statute, the accused shall be entitled
to the following minimum guarantees, in full equity […] to be tried in his presence,
and to defend himself in person or through legal assistance of his own choosing;
to be informed, if he does not have legal assistance, of this right; and to have
legal assistance assigned to him, in any case where the interest of justice so
require, and without payment by him in any such case if he does not have sufficient
means to pay for it.” Article 6 (3)(c) of the European Convention provides: Everyone
charged with a criminal offence has the following minimum rights: […] to defend
himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require”.
207 - Directive, Art. 6 (A).
208 - Directive, Art. 7.
209 - Directive, Art. 11 (A)(i).
210 - See, e.g., Jean Kambanda v.The Prosecutor, Case
No. ICTR-97-23-A, Judgement, 19 October 2000, para. 33: “The Appeals Chamber […]
concludes, in light of a textual and systematic interpretation of the provisions
of the Statute and Rules, read in conjunction with relevant decisions from the
Human Rights Committee and the organs of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, that the right to free legal assistance
by counsel does not confer the right to choose one’s counsel.” (citations omitted);
Akayesu Appeal Judgement, paras 61 and 62, in part: “in principle, the
right to free legal assistance of counsel does not confer the right to counsel
of one’s own choosing. The right to choose counsel applies only to those accused
who can financially bear the costs of counsel. […] [t]o be sure, in practice an
indigent accused may choose from among counsel including [sic] in the list and
the Registrar generally takes into consideration the choice of the accused. Nevertheless,
in the opinion of the Appeals Chamber the Registrar is not necessarily bound by
the wishes of an indigent accused. He has wide discretion, which he exercises
in the interests of justice.” (emphasis added). See also, Artico v. Italy,
Eur. Ct. H.R., Judgement, 13 May 1980, Series A No 37; Croissant v. Germany,
Eur. Ct. H.R., Judgement, 25 September 1992, Series A No. 237-B. See also, Pakelli
v. Germany, Eur. Ct H.R., Judgement, 25 April 1983, Series A., No. 64.
211 - Croissant v. Germany, para. 29. (emphasis added).
212 - Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A,
Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 60.
213 - Akayesu Appeal Judgement, para. 62.
214 - Directive, Art. 16 (A). (emphasis added)
215 - Directive, Art. 16(C).
216 - Directive, Art. 16 (D).
217 - Memorandum from the Deputy Registrar to the President
of the Tribunal and the Registrar entitled “Proposed amendments to the Directive
on the Assignment of Defence Counsel”, 21 June 1996 (“Registry Memorandum on Co-Counsel”),
218 - Id., pages 3-4: “In the situation where assigned
counsel needs the assistance of a co-counsel, this amendment allow [for] him to
apply to the Registrar for one to be appointed.”
219 - id., page 4: “Conceptually, the co-counsel should be
considered as a resource to the Lead Counsel, rather than as a second counsel
assigned to the accused.”
220 - This article was substantially similar to the current
Article 16 “Basic Principles” which falls within Section V of the Directive, “Scope
221 - Registry Memorandum on Co-Counsel, page 4.
222 - Id., page 4.
223 - Prosecutor v. Radislav Brdanin, 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. See, e.g., Prosecutor v. Momcilo Krajisnik,
Decision by the Registrar, 23 January 2003 (the appointment of co-counsel to assist
lead counsel, upon his request, was justified due to “the increase of work resulting
from the preparation of the hearing”).
224 - See, Prosecutor v. Radislav Brdjanin, Case No.
IT-99-36-T, Confidential Decision of the Registrar, 7 March 2003 (“Brdjanin
7 March 2003 Confidential Decision”), as cited in Prosecutor v. Radislav Brdjanin,
Case No. IT-99-36-T, Decision on Defence Motion for Adjournment, 10 March 2003
(co-counsel withdrawn and lead counsel invited to consider submitting a request
for the assignment of new co-counsel who may be appointed).
225 - Registry Memorandum on Co-Counsel, page 4.
226 - Code, Art. 3.
227 - Code, Art. 8(B).
228 - Code, Art. 8(C).
229 - Code, Art. 10.
230 - Code, Art. 14.
231 - Code, Art. 11.
232 - Code, Art. 12.
233 - In addition to the submissions to this effect detailed
by Counsel and the Registrar above, the Trial Chamber takes note of the hundreds
of hours spent by Ms. Tomanovic with the Accused between October 2001 and March
2003 (the log book reflects that Mr. Karnavas and Ms. Tomanovic together met with
the Accused for 271.5 hours, Mr. Karnavas meet with the Accused alone for an additional
26 hours, and Ms. Tomanovic met with the Accused alone for an additional 12 hours;
236 hours had been spent with the Accused by Counsel at the time of Ms. Tomanovic’s
appointment as co-counsel); the fact that Ms. Tomanovic carried out investigative
work in the field with the Accused’s brother, then an investigator, and in the
absence of lead counsel, and the fact that documents submitted on behalf of Mr.
Karnavas to the Accused, when in B/C/S were signed by Suzana Tomanovic “for Michael
Karnavas”, which is not something that an interpreter would do. Further, in correspondence
from lead counsel to the Registry of 15 March 2002 (“Request for Counsel-Client
Visit”), lead counsel requests that on 22 March 2002, he, Ms. Tomanovic and the
person who had recently been appointed as case manager visit the Accused. Point
three of the letter states: “Counsel for Mr. Blagojevic will use this opportunity
to introduce […], case manager/interpreter, to Mr. Blagojevic.”
234 - The Trial Chamber further notes that lead counsel spoke
with other members of the legal profession in Belgrade to assess his reputation
and qualifications among his legal peers.
235 - The record reflects that lead counsel examined the qualifications
and suitability of the Third Person, and found him to be unqualified for the position
of co-counsel, a fact that he communicated to the Accused. Furthermore, the record
reflects that the Registry reviewed the qualifications of the Third Person in
November 2002 and found that he did not meet the qualifications for counsel appearing
before the Tribunal, a fact that was communicated and explained to the Accused
on 26 November 2002. The Trial Chamber notes that as the Accused had first requested
the Third Person as co-counsel on 16 September 2002, it may have been preferable
for the Registry to review this person’s qualifications and communicate the results
of its review more promptly to the Accused, and clarify for the Accused that the
Third Person could not – even had lead counsel agreed to this proposal – have
been appointed as his co-counsel.
236 - See, Prosecutor v. Vinko Martinovic, Case No.
IT-98-34-A, Decision by the Registrar, 19 May 2003 (upon withdrawal of lead counsel,
co-counsel assigned to replace him). The Trial Chamber notes that the replacement
of counsel occurred during the Appeal phase of the proceedings.
237 - See, Prosecutor v. Ranko Cesic, Case No. IT-95-10/1-PT,
Decision of the Registrar, 6 January 2003 (Accused seeks withdrawal of lead counsel
because “he is not satisfied with the work performed by his counsel and that he
has lost confidence” in his counsel; counsel is “no longer willing to represent
the accused due to the breakdown of communication with the accused”); Prosecutor
v. Sefer Halilovic, Case. No. IT-01-48-PT, Decision of the Registrar, 18 February
2003 (the accused requested that lead counsel be re-assigned as co-counsel, and
that new lead counsel be assigned; lead counsel requested that he be withdrawn
fully from the case following the completion of specific tasks). The Trial Chamber
notes that the both replacements of counsel occurred during the pre-trial phase
of the proceedings.
238 - See, e.g., Prosecutor v. Zejnil Delalic, Zdravko
Mucic, Hazim Delic and Esad Landzo, Case No. IT-96-21-T, Decision on Request
by Accused Mucic for Assignment of New Counsel, 24 June 1996. The Trial Chamber,
while noting that the right to assigned counsel of the accused’s own choosing
is not totally without limit and that the overriding interest of the administration
of justice means that the accused should not be permitted to seek withdrawal of
his assigned counsel without establishing good cause, permitted the withdrawal
of counsel due to a complete breakdown of communication between the accused and
counsel. The Trial Chamber looked at good cause to be reasons that are genuine
and the request is not being made for frivolous reasons or the desire to pervert
the cause of justice such as by causing additional delay. The Trial Chamber found
that “it would be unfair to both the accused and assigned counsel to require them
to continue in a professional relationship.” Finally, and significantly to this
Trial Chamber, in that case the Trial Chamber found that the proceedings in that
case were “at an early stage and the assignment of another counsel will not unduly
delay the proceedings.”
239 - See, e.g., The Trial Chamber takes note of Barayagwiza
Decision, in which the Trial Chamber found the fact that the accused in that case
did not lack confidence in his lawyers and that he did not argue that they were
incompetent to be relevant factors in deciding upon the motion for withdrawal
of counsel. See also, Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic
and Esad Landzo, Case No. IT-96-21-A, Order Regarding Esad Landzo’s Request
for Removal of John Ackerman as Counsel on Appeal for Zejnil Delalic, 6 May 1999
(accused requested that lead counsel for co-accused be withdrawn on basis of potential
conflict of interest as that lead counsel had formerly represented him as lead
counsel; Appeals Chamber found that material before it did not disclose a conflict
240 - Directive, Art. 19 (C).
241 - Directive, Art. 19 (E).
242 - Directive, Art. 20 (A). “In the interests of justice,”
the withdrawn counsel may continue to represent the accused for a period not to
exceed 30 days after the date on which replacement counsel is assigned. Directive,
Art. 20 (B).
243 - Directive, Art. 19 (F).
244 - The Trial Chamber notes that the letter in which the
Accused states he had “dismissed” lead counsel, dated 7 April 2003, was not delivered
to Registry until after the Registrar’s Decision had been rendered.
245 - See, Code, Arts. 10-12.
246 - See, supra paras 38-39.
247 - See, supra paras 50-53.
248 - For example, the Trial Chamber finds no record that
Mr. Blagojevic sought to meet with his counsel on various occasions and counsel
failed to appear. While the record shows one meeting that the Accused sought to
have with lead counsel before he filed the pre-trial brief, the record further
shows that by the Accused sought the meeting only after Accused had refused to
meet with his Counsel, while Counsel was present in The Hague. In light of the
fact that lead counsel could not return to The Hague by the date requested by
the Accused, lead counsel sought both an extension of time to file the brief (explicitly
stating in the request that the request was made in order to allow for consultation)
as well as an alternative ways to consult with the Accused other than in person.
See also, supra fn. 233 on the amount of time spent with the Accused at the UNDU.
249 - Artico v. Italy, para. 33. See also, Airey
v. Ireland, Judgement, 9 October 1979, Series A, No. 32 (obligation on States
under Article 6(1) of the Statute to secure an effective right of access to courts
may include legal aid scheme for certain cases implicating civil rights)
250 - Artico v. Italy, para. 33.
251 - See, e.g, Artico, para. 36.
252 - Kamasinski, para. 65
253 - Lagerblom v. Sweden, para. 55.
254 - The Trial Chamber recalls that the Accused had unsuccessfully
raised issues related to lead counsel’s performance with the Registry in December
2002. These claims were rejected by the Registry in January 2002. Additionally,
the Trial Chamber takes note of the fact that following the March Hearing, lead
counsel contacted the Registry about the scheduled visit by the experts. In light
of his comments at the March Hearing, the Accused still met with the experts and
lead counsel in excess of fifteen hours.
255 - The Trial Chamber regrets that while this letter was
personally addressed to Judge Liu, and particularly in light of the fact that
the Accused would have made the reasonable assumption that Judge Liu had received
the letter and therefore did not make further oral representations of the contents
of the letter when the trial commenced on 14 May and continued through 23 May
2003, the Trial Chamber was unaware of the contents of the letter until 3 June
256 - In relation to the breakdown in communication for on
the assignment of co-counsel, see supra paras 84-85. For the discussion
on the breakdown in communication in relation to the theory of the case, see supra
para. 94. Submissions and supporting material indicate that there was communication
between Counsel and the Accused on the theory of the defence case and the objectives
to be pursued.
257 - Code, Art. 8 (B) (i) and (ii).
258 - See, supra, para. 94, and particularly fn. 248.
259 - The Accused further states: “The attempt to have the
dismissed attorney KARNAVAS deliver written and other material to me is unacceptable.
Such attempts were made twice on 6 May 2003 and I refused to accept these documents,
because I dismissed that lawyer for all time, and he does not have my permission
to involve himself in my case any more or to meddle in any aspect of it.”
260 - The Trial Chamber notes that through the assistance
of the Registry, the Accused has now accepted all materials that previously had
been held for him at the UNDU, and through the continued assistance of the Registry,
has received additional disclosure materials and other filings in this case.
261 - See, letter of 7 April 2003, supra, fn. 57.
262 - In this regard, the Trial Chamber notes that it has
already taken the discretionary and extra-ordinary step of assigning the Independent
Counsel to assist the Accused in this matter.