Case No.: IT-95-11-PT

BEFORE THE TRIAL CHAMBER

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphonsus Orie

Registrar:
Mr. Hans Holthuis

Order of:
2 August 2002

PROSECUTOR
v.
MILAN MARTIC

___________________________________________________________

DECISION ON APPEAL AGAINST DECISION OF REGISTRY

___________________________________________________________

The Office of the Prosecutor:

Hildegard Uertz-Retzlaff

Defence Counsel:

Gert-Jan Knoops

 

THIS TRIAL CHAMBER ("the 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 ("the International Tribunal"):

BEING SEIZED OF the "Appeal", filed by Counsel Strahinja Kastratovic ("Counsel of choice") on 26 June 2002 ("the Appeal");

NOTING the "Decision" of the Deputy Registrar, dated 31 May 2002 ("the first Registry decision"), whereby Counsel of choice was temporarily assigned as Counsel to the accused Milan Martic ("the accused") until 13 June 2002, pending further clarification of a potential conflict of interest;

NOTING the "Decision" of the Deputy Registrar, dated 14 June 2002 ("the second Registry Decision"), whereby Mr. Gert-Jan Knoops was assigned as Counsel for the accused for a period of 100 days ("assigned Counsel"); that the second Registry Decision provides that "an assignment of Mr. Kastratovic to the accused could, under the current circumstances, lead to adverse impacts on the rights of the accused and the suspect Mr. Kastratovic previously represented", that "while he was assigned to the accused, Mr. Kastratovic has not taken any further steps to clarify or neutralize the potential conflict of interest";

NOTING that in the Appeal it is submitted that the second Registry Decision is "legally unsustainable"; the Registrar is not authorised to decide on a potential conflict of interest; the Registrar does not choose the counsel to the indigent accused but is only authorised to verify the financial status of the accused; that it is for the Chamber to decide on the possible conflict of interest; the appellant, as Defence Counsel of the accused, acted according to Article 9 paragraph 5 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal ("the Code of Conduct") by informing Mr. Simatovic ("the suspect") and the accused and obtaining a statement of the suspect; in any case, no conflict of interest exists; should he see or anticipate "any kind of existence or already obvious conflict of interest" he would, without anyoneís warning and in compliance with Article 9 paragraph 5 of the Code of Conduct, "take the steps to eliminate the conflict, and abandon the defence of both clients, in the first place";

NOTING that a "Statement", dated 17 June 2002 and signed by the suspect, was submitted with the Appeal, wherein the suspect confirmed that Counsel of choice is not his legal representative any longer since he ceased to use the services of Counsel of choice on the day he completed his interview with the investigators of the Tribunal;

CONSIDERING that for the reasons set out in the "Order", issued by the Chamber on 3 July 2002, the Chamber considers itself properly seized of the Appeal; that the Chamber in the Order requested the accused, assigned Counsel, Counsel of choice and the Registry to provide "further information and clarification of their respective position on the alleged conflict of interest"; that the Chamber ordered the Prosecution to submit "all relevant information on the factual background of the alleged conflict of interest";

NOTING the "Response to 3 July 2002 Order Considering the Assignment of Counsel", filed by assigned Counsel on 5 July 2002, affirming his availability and willingness to assist the accused but submitting that he is factually unable to assist the Chamber with regard to the question under appeal "due to lack of sufficient information on this subject";

NOTING the "Prosecutorís Submission to Trial Chamberís Order, Dated 3 July 2002", filed on 5 July 2002, wherein the Prosecution set out the following information in relation to the factual background: that the accused and the suspect are named as co-perpetrators of Slobodan Milosevic in a joint criminal enterprise in the indictment against Slobodan Milosevic relative to crimes committed in Croatia and Bosnia-Herzegovina; that in the course of investigations into the criminal conduct of the members of the joint criminal enterprise, representatives of the Office of the Prosecutor interviewed the suspect in February and March 2002 and that, during this interview, the suspect was represented by Counsel of choice; that the investigation against the suspect is on-going; that the investigation against the accused is concluded; that the Prosecution is currently drafting an amendment to the existing indictment, incorporating allegations of criminal conduct of the accused regarding crimes of the joint criminal enterprise in Croatia and Bosnia-Herzegovina; that, according to the evidence, there is a strong indication that the accused and the suspect "closely co-operated in the commission of the crimes";

NOTING the "Registry Comments on Trial Chamberís Order to Comment on the Accusedís Request for Review of the Registrarís Decision on Assignment of Counsel", filed 10 July 2002 ("the Comments"), wherein it is submitted that the Registry, when processing the request for assignment of Defence Counsel to an indigent accused has the authority to consider, verify and decide a potential conflict of interest of Counsel in accordance with their standard procedures; that in the case of the accused, the Registry received information on a previous assignment of Counsel of choice to the suspect; that both Counsel of choice and the Prosecution were requested to submit further information on any possible relation with the indictment against the accused; that the Prosecution responded by memorandum stating that a potential conflict of interest for Counsel of choice may arise due to the fact that the suspect and the accused are viewed by the Prosecution as co-perpetrators related to the crimes committed during the war in Croatia, as specified in the indictment against Slobodan Milosevic and that they intended to amend the current indictment against the accused to include his participation in a joint criminal enterprise with the accused Slobodan Milosevic, the suspect and others; that the Registry discussed the concerns in detail with Counsel of choice in several meetings; that Counsel of choice has denied the existence of even a potential conflict of interest and has not submitted any information on the circumstances of the representation of the witness; that, subsequent to the meetings, both the suspect and the accused submitted "short communications to the Registry stating that no conflict existed"; that "it appears that both waivers were not informed waivers and neither the witness nor the accused were aware about the potential legal consequences of a conflict as required by Article 9 (5) of the Code of Professional Conduct"; that the decision of the Registry should not be disturbed "until such time as Mr. Kastratovic submits proper waivers in accordance with Article 9 of the code of Professional Conduct, and these waivers are accepted by the Trial Chamber as sufficient to guarantee that the rights of the witness and potential suspect and the accused are fully respected" ;

NOTING the hand-written letter of the accused directed to Registry, dated 22 June and filed 10 July 2002, stating that he had no personal or business relations with the suspect, that he was not his superior nor did he associate with him in any manner; that his official work cannot be linked to the suspect and that the interview of the suspect as an accused or suspect cannot "endanger" his interests in any way; that, therefore, the conflict of interest is an "arbitrary claim" and that he requests Counsel of choice be assigned as his Counsel since he has his absolute trust;

NOTING the hand-written letter of the accused directed to the Chamber, dated 22 June and filed 10 July 2002, re-stating his position as set out in his letter to the Registry, dated 22 June 2002;

NOTING the letter of Counsel of choice to the Chamber, dated 8 July 2002 and filed on 11 July 2002, submitting that the determination of a conflict of interest is not within the competence of the Registry; that the Chamber is the sole body authorised to determine whether such conflict exists; that the accused and the suspect, in any case, have both unambiguously stated that no such conflict of interest exists between them; that they "are not disturbed by the fact that the counsel who agreed to defend the accused Martic participated earlier in defending the legal interests of the suspect Franko Simatovic"; that the accused "has been without counsel for a month now and that his rights to a defence have been fundamentally jeopardised";

NOTING the Letter of Counsel of choice to the President of the Chamber, dated 18 July and filed on 23 July 2002, expressing his concerns that certain documents were not transmitted to the Chamber, submitting copies of these documents to the Chamber and re-stating his position;

CONSIDERING that the Chamber has taken account of all the afore-mentioned submissions; that it has considered all aspects raised therein, and that it is not satisfied that a Status Conference is required in order to dispose of the matter;

CONSIDERING that Article 21(4)(b) of the Amended Statute of the International Tribunal ("the Statute") provides that the accused shall be entitled, inter alia, "to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing" and that Article 21(4)(d) provides that the accused shall be entitled, inter alia, "Ö 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 interests of justice so require,Ö"1;

CONSIDERING that Rule 45(A) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") provides that, whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel and, that such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the Permanent Judges; that such counsel shall be drawn from a list of counsel established under the circumstances set out in Rule 45(B); that pursuant to Rule 45(C), the Registrar may assign counsel whose name does not appear on the list in particular circumstances and upon the request of a person lacking the means to remunerate counsel;

CONSIDERING Article 14 of the Directive on Assignment of Defence Counsel (Directive No. 1/94 of December 2000) ("the Directive"), setting out the prerequisites for assignment as Counsel; in particular Article 14(B) of the Directive, which provides that the Registrar may assign counsel who does not speak either of the two working languages of the Tribunal, but speaks the language of the accused;

CONSIDERING that the jurisprudence of the International Tribunal2 and of the International Criminal Tribunal for Rwanda3 indicates that the right of the indigent accused to counsel of his own choosing may not be unlimited but that, in general, the choice of any accused regarding his Defence Counsel in proceedings before the Tribunals shall be respected; that, in the view of the Chamber, the choice of all accused should be respected unless there exist well-founded reasons not to assign Counsel of choice;

CONSIDERING that with regard to the assignment of Counsel of choice to the accused the Registry claimed that there may exist a conflict of interest pursuant to Article 9 of the Code of Conduct and that this conflict has not been removed by valid waivers of the accused and the suspect pursuant to Article 9 paragraph 5 of the Code of Conduct;

CONSIDERING that the Chamber shares the view of Trial Chamber II as expressed in its Decision on Prosecutionís Motion for Review of the Decision of the Registrar to assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, issued on 26 March 2002, in which it is stated, inter alia, that the Registrar of the International Tribunal "has the primary responsibility in determining which counsel it may appoint or assign, in accordance with the Rules, the Directive, and the Code of Conduct4", but that the Chamber, once the matter is brought to its attention is authorised to review the decision of the Registrar since the Chamber has the duty to ensure the integrity of the proceedings and a fair trial for the accused;

CONSIDERING that, therefore, the Registry was generally authorised to consider and decide the question of a potential conflict pursuant to Article 9 of the Code of Conduct in the course of processing the request for assignment of counsel by the accused, after having received information to this effect;

CONSIDERING, however, that the second Registry Decision does not provide any information as to the nature of the conflict of interest which in the opinion of the Registry exists; that the decision does not refer to the concrete sub-paragraph of Article 9 of the Code of Conduct on which the second Registry Decision relies; (that it provides no information on the underlying facts of the case; that it considers only "that an assignment of Mr. Kastratovic to the accused could, under the current circumstances, lead to adverse impacts on the rights of the accused and the suspect"; that this decision, however, does not explain the nature and scope of the "current circumstances" and the "adverse impacts" on the rights of the accused;

CONSIDERING that the claim of Counsel of choice that the suspect was his former client was uncontested; that a conflict of interest could, in the view of the Chamber, therefore only exist as provided in Article 9(3)(c)(iii), namely that "the matter is the same or substantially related to another matter in which Counsel had formerly represented another client ("the other client") and the interests of the Client are materially adverse to the interests of the former client, unless the former client consents after consultation";

CONSIDERING that pursuant to Article 9(3)(c)(iii) the "consent" of the former client, obtained after consultation, can remove such a conflict of interest;

CONSIDERING that the second Registry Decision, however, refers to both Article 9(3)(c)(iii) and to Article 9(5), the latter requiring the full and informed consent of all potentially affected Clients to remove a conflict of interest;

CONSIDERING that the Registry in the Comments informed the Chamber that the suspect provided a statement to Registry on 30 May 2002 and the accused provided a statement to Registry on 12 June 2002 in this regard; that, however, in the second Registry Decision those statements are not properly considered; that it was only in the Comments, that the Registry explained that "it appears that both waivers were not informed waivers and that neither the witness nor the accused are aware about the potential legal consequences of a conflict as required by Article 9 (5) of the Code of Professional Conduct"; that the statements provided by the suspect and the accused were not submitted to the Chamber by the Registry despite the Order of the Chamber, issued on 3 July 2002, to provide "further information";

CONSIDERING that a consent provided by a potentially affected client or former client to remove a conflict of interest upon consultation with the Counsel should generally be regarded as fully informed in the absence of indication to the contrary;

CONSIDERING that in the light of all submissions received by the Chamber, it appears that both the suspect and the accused independently discussed the conflict of interest with Counsel of choice and that both the suspect and the accused, on the basis of such consultations, clearly consent to Counsel of choice representing the accused;

CONSIDERING that Article 16 (E) of the Directive does not exclude the constellation that Counsel may be assigned to more than one suspect at a time, provided such assignment "would neither cause prejudice to the defence of either accused, nor a potential conflict of interest"; that according to the language used in the Directive, Article 16 (E) constitutes one of the "Basic principles" with regard to the scope of assignment of Counsel; that, therefore, the fact that the accused and the suspect are charged as co-accused in the same case does not necessarily create a conflict of interest;

CONSIDERING that the Registry has not put forward information as to any other obstacles that could prevent Counsel of choice from fulfilling all other obligations under the Code as set out in Article 9 (5) (b) (ii); that, therefore, and on the face of the information submitted by the parties, the Chamber is not satisfied that there are "well-founded reasons" that would prevent Counsel of choice to be assigned as Counsel to the accused at this moment;

CONSIDERING that the right of the accused to defence is a central aspect of a fair trial; that an accused should be assigned Counsel as early as possible in the proceedings to guarantee the expeditious and competent preparation of his or her trial; that, for this reason, a decision on the assignment of Counsel to the accused should be taken without further delay;

CONSIDERING, however, that the submission of Counsel of choice in his letter to the Chamber, dated 8 July 2002 and filed on 11 July 2002, that the accused "has been without counsel for a month now and that his rights to a defence have been fundamentally jeopardised" is misleading and frivolous; that the accused has not been without Counsel for a single day since his transfer to the Tribunal, that the Chamber is fully satisfied that assigned Counsel has taken all appropriate steps to safeguard the rights of the accused, that, in this respect, he has even filed a Motion for Provisional Release on behalf of the accused, notwithstanding the wilful refusal of the accused to co-operate with him and the interference of Counsel of choice; that the Chamber is satisfied that the matter can be disposed of in lieu of an oral hearing;

FOR THE FOREGOING REASONS

HEREBY DECIDES THE FOLLOWING:

  1. This matter is remitted to the Registry.
  2. The Registry is directed to revisit the second Registry Decision, to take into account the considerations set out in this Decision and to issue a new Decision on Assignment of Counsel.
  3. The Registry shall issue this Decision no later than 16 August 2002 and transmit it to the accused, to Counsel of choice and to assigned Counsel without delay.
  4. This Decision of the Chamber shall be transmitted to the accused, to Counsel of choice, to assigned Counsel, to Registry and to the Office of the Prosecutor.

 

Done in English and French, the English version being authoritative.

Dated this second day of August 2002,
At The Hague,
The Netherlands

________________
Judge Liu Daqun
Presiding Judge

[Seal of the Tribunal]


1. Emphasis added for the purpose of the Decision.
2. Pros. v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevi}, Case No. IT-95-9-PT25 March 1999.
3. Pros. v. Gérard Ntakirutimana, Decision on the Motions of the Accused for Replacement of Assigned Counse/Corr., Case No. ICTR-96-10-T, ICTR-96-17-T, 11 June 1997; Pros.v. Gérard Ntakirutimana, Separate and Dissenting Opinion of Judge Yakov Ostrovsky on the Request of the Accused for Change of Assigned Counsel, Case No. ICTY-96-10-T, ICTR-96-17-T, 11 June 1997; Jean-Paul Akayesu v. The Prosecutor, Appeals Chamber Decision Relating to the Assignment of Counsel, Case No. ICTR-96-4-A, 27 July 1999. Both Appeals Chamber Judgements on the question of the right to counsel of one's one choice refer to and rely on the principles set out in the Decision in Pros. v. Gérard Ntakirutimana, see Jean Kambanda v. the Prosecutor, Appeals Chamber, Judgement, ICTR 97-23-A, 19 October 2000, pp 6; Pros. v. Jean-Paul Akayesu, Judgment, ICTR-96-4-A, 1 June 2002, pp 19.
4. All italics are contained in the original text of the decision of Trial Chamber II; Case No. IT-01-47-PT, see para 55.