Case No. IT-02-65-PT

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Bert Swart

Registrar:
Mr. Hans Holthuis

Order of:
17 June 2004

The Office of the Prosecutor:

Ms. Ann Sutherland

Counsel for the Accused:

Mr. Jovan Simic, for Zeljko Mejakic
Ms. Sanja Turlakov, for Momcilo Gruban
Mr. Theodore Scudder and Mr. Dragan Ivetic, for Dusan Fustar
Ms. Slobodanka Nedic, for Dusko Knezevic

THIS 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 (“the International Tribunal ”),

BEING SEISED of a confidential “Prosecution’s Second Motion to Resolve Conflict of Interest Regarding Attorney Jovan Simic” filed on 24 February 2004 (“the Second Motion”), in which the Office of the Prosecution (“Prosecution”) requests the Trial Chamber to “act now” and resolve the conflict of interest regarding Defence counsel , Mr. Jovan Simic, currently assigned as lead counsel to represent the accused Zeljko Mejakic in the present case, and also counsel to the accused Dragoljub Prcac in the case Prosecutor v. Kvocka et al., currently on appeal,¹ by requesting the Registrar to withdraw Mr. Simic’s assignment from one of the two cases,

NOTING the following submissions in the Second Motion:

(i) in the present circumstances, the Prosecution has not been in a position to discuss with Mr. Prcac his willingness to participate in additional interviews with the Prosecution pursuant to Rule 63 (A) of the Rules, and testify voluntarily, without the presence of Mr. Simic unless, the Prosecution submits, the accused voluntarily and expressly agrees to proceed without counsel present,

(ii) in response to the Prosecution’s application to amend its Rule 65ter witness and exhibit lists,² Mr. Simic has put on record his objection to Mr. Prcac appearing as a witness in the Mejakic case, which, the Prosecution submits, demonstrates that the matter is now ripe for determination as it is interfering with the orderly progression of the case, as Mr. Simic cannot give independent and objective advice to Mr. Prcac as to whether he should agree to testify and to participate in additional interviews with the Prosecution,

(iii) Mr. Simic cannot at the same time objectively advise Mr. Mejakic about effectively challenging the parts of Mr. Prcac’s testimony without compromising his representation of Mr. Prcac,

(iv) in the current circumstances, allowing Mr. Simic to continue to represent both accused Mejakic and Prcac would be detrimental to the right of both men to make informed decisions based solely on their own best interests,

NOTING the confidential “Defence Response to Prosecution Second Motion to Resolve Conflict of Interest Regarding Attorney Jovan Simic” filed on 5 March 2004 , in which Mr. Simic submits that apart from seeking a different remedy - that Mr . Simic be removed from one of the two cases, as opposed to being removed from this specific case -, the Prosecution has failed to raise any new issue,

NOTING the “Decision on Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Jovan Simic” issued by this Trial Chamber on 18 September 2003 (“First Decision”), in which the Trial Chamber recognised that a conflict of interest would arise were Mr. Prcac to be called to testify in the Mejakic case; however , upheld the Registrar’s Decision of 30 July 2003 appointing Mr. Jovan Simic as lead counsel for the accused Mejakic, inter alia on the basis that lead counsel had followed the procedure laid out in Article 14 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal,³ the Trial Chamber considered that it was not appropriate at that stage for the Trial Chamber to make a determination since there was no certainty that Mr. Prcac would testify in the Mejakic case,

NOTING the Decision of the Trial Chamber granting the Prosecution’s request to have Mr. Prcac added to the Prosecution’s witness list in the Mejakic case⁴ which, however, denied a request to have the transcript of an interview of Mr. Prcac added to the exhibit list, on the basis that “there is no certainty that Mr. Prcac will testify in this case, so that the accused would have an opportunity to cross-examine him as to the content of his interview with the Prosecution”,⁵

CONSIDERING that the Second Motion is concerned (as was the first application ) with the question of the existence of a potential conflict of interest arising from a decision of the Registrar to appoint Mr. Simic, already assigned lead counsel to the accused Prcac, as lead counsel for the accused Mejakic, thereby extending Mr. Simic’s assignment to more than one accused at a time,

NOTING the Directive on Assignment of Defence Counsel⁶ which provides that, in principle, no counsel shall be assigned to more than one accused at a time, unless an assignment to more than one accused “would neither cause prejudice to the defence of either accused, nor a potential conflict of interest ”,⁷

NOTING that the Code of Conduct provides that, where a conflict of interest does arise, counsel is required either to take the necessary steps to remove the conflict, or obtain the full and informed consent of all potentially affected clients in order to continue the representation “unless such consent is likely to irreversibly prejudice the administration of justice”,⁸

CONSIDERING that the latter procedure was followed by Mr. Simic and sanctioned in the Decision of the Registrar dated 30 July 2003, which stated that “the Registry has ascertained that both accused have been fully informed of the existence and extent of any potential conflicts of interest and pursuant to Article 14 (E)(ii)( 2), have both signed informed waivers”;⁹ therefore, in the circumstances of this case, the decision of the Registrar to assign Mr. Simic as counsel to the accused Mejakic cannot be said to have failed to comply with the requirements of the Directive,

CONSIDERING that the Trial Chamber must determine whether the consent given by both accused to be represented by Mr. Simic is likely to “irreversibly prejudice the administration of justice”, a determination which, in the view of the Trial Chamber, is closely related to the integrity of the proceedings and the fairness of the trial,¹⁰

CONSIDERING that the Trial Chamber recognised in its First Decision that a conflict of interest would arise were Mr. Prcac to be called to testify in the Mejakic case; that following the Trial Chamber’s decision to allow the Prosecution to amend its witness list to include Mr. Prcac, the Prosecution has in fact so amended its witness list; however, it does not necessarily follow that Mr. Prcac will testify in this case;¹¹ indeed, the request to have the transcript of an interview of Mr. Prcac added to the exhibit list was denied on the ground that there was no certainty that Mr. Prcac would testify in this case,

CONSIDERING that the Trial Chamber is mindful of its duty to provide every reasonable and practicable facility to each party to facilitate access to evidence that may be relevant to his case; however, in the view of the Trial Chamber, there is nothing in the Statute and the Rules of the Tribunal to suggest that the Prosecution has a right to interview an accused in a particular case for the purpose of securing his testimony in another case; the argument that the Prosecution is unable to discuss with Mr. Prcac his willingness to participate in additional interviews with the Prosecution or testify voluntarily, without the presence of Mr. Simic, pursuant to Rule 63 (A) of the Rules, is thus without merit,

CONSIDERING that the Trial Chamber is not satisfied that, in the present circumstances, representation of the two accused by Mr. Simic is likely to affect the integrity of the proceedings or otherwise irreversibly prejudice the administration of justice,

PURSUANT TO Rule 73 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY DENIES the Second Motion.

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

_______________
Patrick Robinson
Presiding

Dated this seventeenth day of June 2004
At The Hague
The Netherlands

[Seal of the Tribunal]