Case No. IT-95-13/1-PT

TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Christine Van Den Wyngaert
Judge Krister Thelin

Registrar:
Hans Holthuis

Decision of:
7 October 2005

PROSECUTOR

v.

MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN

___________________________________________

DECISION ON APPOINTMENT OF CO-COUNSEL FOR MILE MRKSIC

___________________________________________

The office of the Prosecutor

Mr Marks Moore

Counsel for the Accused

Mr Miroslav Vasic for Mile Mrksic
Mr Borivoje Borovic and Ms Mira Tapuskovic for Miroslav Radic
Mr Novak Lukic and Mr Momcilo Bulatovic for Veselin Sljivancanin

  1. Background
  2. 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 ("Tribunal") is seized of a "Defence Motion: Requesting Relief in the Assignment of Co-counsel" ("Motion") filed on 2 September 2005 by Mr Vasic, Counsel for the Accused Mrksic ("Accused"). The Motion relates to the Registryís refusal to grant Mr Vasicís request for the assignment of Goran Rodic as co-counsel for the Accused, communicated to Mr Vasic on 22 August 2005. On 16 September 2005 the Registry filed its "Submission Pursuant to Rule 33 of the Rules of Procedure and Evidence ("Rules") Regarding Mile Mrksicís Motion for Review of the Registry Decision on the Assignment of Co-counsel" ("Submission").

    Originally, by letter dated 28 July 2005, Mr Vasic requested the assignment of Mr Rodic as co-counsel for the defence of the Accused. Mr Vasic relied on the legal and military experience of Mr Rodic as a military prosecutor and judge and later as an attorney. He emphasized the experience gained by Mr Rodic in these cases before this Tribunal. A full CV of Mr Rodic was provided. This request was refused by the Registrar, acting by the Deputy Head of the Office of Legal Aid and Detention Matters, in a letter to Mr Vasic dated 3 August 2005. It was noted that Mr Rodic was not on the list of counsel maintained pursuant to Rule 45 of the Rules and that he was not proficient in either of the working languages of the Tribunal, i.e. under the Rules as amended in July 2005 Mr Rodic did not meet the language requirement so as to be qualified to appear as counsel before the Tribunal. The letter concluded that it had not been demonstrated that it was in the interests of justice for the Registrar to waive the language qualification.1

    Then, by letter dated 15 August 2005, Mr Vasic sought to "clarify" why he contended it was in the interests of justice for the language qualification to be waived to allow Mr Rodic to be assigned as co-counsel. Apart from re-affirming and elaborating on what had been said in his earlier letter, Mr Vasic contended, in effect, that he was under pressure because there was not a lot of notice of the trial date and because the Prosecution had made substantial changes to its witness list in July 2005 and later. He emphasized that Mr Rodic was familiar with the structure of the Yugoslav Peopleís Army including the gist of the command and control structure at the time relevant to the Indictment. He also sought to draw parallels between aspects of the Strugar case, in which Mr Rodic was counsel, and the case against the Accused, to seek to support the contention that Mr Rodicís experience would be of considerable value to the expeditious preparation of the Accusedís defence and that it made Mr Rodic uniquely qualified to assist Mr Vasic in this case. This further letter of Mr Vasic was considered by the Registrar, acting by the Head of the Office of Legal Aid and Detention Matters, who replied by letter dated 22 August 2005 refusing to waive the language qualification requirement in respect of Mr Rodic in this case. In this further decision, the matters raised by Mr Vasic were considered and reference was made to a number of possible general criteria, some of which were not applicable to this particular case. In the end, however, the expressed critical basis for the decision was, in the Registryís view, Mr Vasicís own lack of proficiency in either of the working languages of the Tribunal, which it was considered gave rise to a predominate interest in assigning a co-counsel whose language skills complemented Mr Vasicís, i.e. a co-counsel who was proficient in one of the working languages of the Tribunal. It was for this reason that the Registrar considered it was not in the interests of justice, in this particular case, to waive the language requirement.

  3. Assignment of counsel
  4. By Article 21(4)(D) of the Statute of the Tribunal an Accused has the right to "Defend himself in person or through legal assistance of his own choosing". Necessarily, the right of an Accused to choose his or her counsel is limited to counsel qualified to appear before the Tribunal. Rule 44 sets out the required qualifications. They are extensive and deal in particular with the legal qualification, good standing and professional conduct of the counsel. There is a specific requirement that counsel has written and oral proficiency in one of the two working languages of the Tribunal, although, it is also provided that where the Registrar deems it to be in the interests of justice to waive this requirement, he may do so. In such an exceptional case, however, by Rule 44(D) of the Rules he may impose conditions inter alia respecting the costs of translation and interpretation, and requiring an undertaking from counsel not to seek any extension of time by virtue of his lack of proficiency in one of the working languages of the Tribunal.

    The present is not such a case, however, as the Accused does not have the means to remunerate counsel of his choice. Instead, he sought the assignment of a counsel by the Registrar pursuant to the legal aid scheme of the Tribunal. This is administered pursuant to Rule 45 and the Directive on Assignment of Defence Counsel ("Directive"): see Rules 44(C) and 45(A). For this purpose the Registrar maintains a list of counsel, who possess additional specific competence related to the jurisdiction of the Tribunal, have at least 7 years relevant experience, and have indicated their availability and willingness to be assigned to represent persons.

  5. Legal basis for review
  6. By Rule 44(B) an Accused may seek a review by the President of a Decision of the Registrar to refuse to admit counsel of an accusedís choice who has been retained by the Accused, but who does not meet the language requirement. In the case of the assignment of counsel to an Accused under the legal aid scheme (Rule 45), however, there is no provision for such a review by the President.

    As the jurisprudence of the Tribunal has recognised, however, it does not follow that the Registrarís decision to refuse a requested assignment of co-counsel is altogether final. In a number of decisions in this Tribunal it has been recognised that it is inherent in the judicial function of the Tribunal that a decision of the Registrar which affects, or is likely to affect, the right of an Accused to a fair and expeditious trial or the integrity of the proceedings, may be reviewed by the Trial Chamber before which the trial is to be held, or is being held.2

    It has been made clear, that this jurisdiction is limited to cases which meet those jurisdictional conditions. Even then, it is not the role of the Trial Chamber to intervene in every complaint, recognising that the Registrar has primary responsibility in the matter of the assignment of counsel and co-counsel.3 Indeed in the Knezevic case, it was observed that a Chamber should only exercise its power relating to the assignment of counsel "in exceptional cases".4

    In a case where a jurisdictional basis exists for a Trial Chamber to entertain a motion to review the refusal of the Registrar to assign a requested co-counsel, some guidance as to the approach to a review of the merits by the Trial Chamber and the standard to be applied in determining whether to interfere with a decision of the Registrar, which is, of course, an administrative decision, may be found in the Appeals Chamberís decision in Kvocka et al where it was said

    "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 issues may in the particular case involved, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled."5

    It is of relevance to the scope of the Chamberís judicial review that the Accusedís preference as to co-counsel is to be taken into consideration. In this case, as has been indicated, the Accused has not the financial means to retain his own counsel. Even so, the counsel he selected to conduct his defence as (lead) counsel under the legal aid scheme at the Tribunal has been assigned to him. In this respect, the Registrar took into account and, indeed, has fully respected, the expressed preference of the Accused by assigning Mr Vasic as (lead) counsel. The Registrar did so even though Mr Vasic is not proficient in one of the working languages of the Tribunal.

    In the Sljivancanin decision it was said by the President of the Tribunal:

    ď19. Mr Sljivancanin claims that the registrarís refusal to assign his preferred attorneys violates Mr Sljivancaninís right to counsel of his own choice, guaranteed by Article 21, para 4 of the Statute. The claim may be quickly rejected.

    20. This case concerns the assignment of counsel to be paid for by the Tribunal. Whatever may be the scope of the right to counsel of ones own choosing when a defendant hires his own counsel, the right to publicly paid counsel of ones own choice is limited. The ICTR Appeals Chamber and several ICTY Trial Chambers have repeatedly held that, while the Registrar should normally take a defendantís preferences into account, a defendant must accept any duly qualified counsel appointed from the list maintained by the Registrar. I fully concur in that view."6

    Thus, while it is not a matter of legal right, well founded notions of fairness are reflected in the view expressed in the Sljivancanin decision, and also in the earlier Martic Trial Chamber decision.7 It is to be noted that this concern for fairness appears to be in general keeping with the approach of the European Court of Human Rights, in respect of Article 6(3)(c) of the European Convention of Human Rights, as expressed in Croissant v Germany, where it was said

    "It is true that Article 6(3)(c) entitles Ďeveryone charged with a criminal offenceí to be defended by counsel of his own choosing. Nevertheless, and not withstanding the importance of a relationship of confidence between the 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 defendantís wishes; indeed, German Law contemplates such course. However, they can override those wishes when they are relevant and sufficient grounds for holding that this is necessary in the interests of justice".8

    It is to be emphasised, however, that the issue in this review of the Registrarís decision concerns the assignment of co-counsel, not the (lead) defence counsel. Under the terms of Article 16 of the Directive, it is the lead counsel, rather than the Accused, who seeks the assignment of a co-counsel. There is a different emphasis in the case of the appointment of co-counsel. The primary focus is on the needs of the Accusedís lead counsel for suitable assistance by counsel chosen by the lead counsel, rather than on the preferences of the Accused. Indeed, it has been held by the Appeals Chamber in Blagojevic that lead counsel may seek the appointment of a nominated co-counsel without the Accusedís agreement to the choice of co-counsel. It was said by the Appeals Chamber:

    "As already stated, the appointment of co-counsel is a decision to be made by Counsel pursuant to Article 16 of the Directive. In this respect, provided the Registrar is satisfied that the nominated person meets the requirements of Article 14 of the Directive, the propriety of Counsel seeking the appointment of a particular person does not turn upon the awareness of an Accused of the likelihood of such an appointment or upon the agreement of an Accused to that appointment."

    It was further said

    "Further, while the selection of Co-counsel is a matter which falls to lead Counsel under Article 16 of the Directive, the selection of lead Counsel is a matter which falls to the Registrar under Article 14 of the Directive. The Registrar may take into account an Accusedís preferences, as he did in the appointment of lead counsel in this case, but it is within the Registrarís discretion to override that preference if he considers that it is in the interests of justice to do so." 9

    The apparent effect of these decisions is to confirm that the assignment of co-counsel is not a matter involving the legal right of the Accused to be represented by counsel of his own choosing. Nevertheless, as they also indicate, considerations of fairness emphasise the desirability of the Registrar also taking into account any preference expressed by the Accused as to the co-counsel to be assigned. In a case such as the present, in which it appears that the lead counsel and the Accused each favour the assignment of Mr Rodic, the Registrar would normally be expected to take into account the Accusedís preference and would no doubt give effect to it unless, in the view of the Registrar, there was good reason for not doing so. This statement of the position is subject, however, to a further material consideration in a case in which, as in this case, the preferred co-counsel is not qualified to act as counsel before the Tribunal.

  7. Language qualification
  8. In the present case the assignment of co-counsel requested by Mr Vasic is also most materially affected by the language qualification requirement of Rule 44(B) which is incorporated into the legal aid scheme by Rule 45(B). This is also reflected in the Directive. It is open to the Registrar under Rule 44(B) to admit a counsel who does not speak either of the two working languages of the Tribunal, but who speaks the native language of the Accused, but the Registrar may only do so at the request of the Accused and where the interests of justice so demand. Necessarily, the interests of justice must be viewed in light of the particular case.

    In this case, Mr Rodic, like the (lead) counsel Mr Vasic, is not proficient in either of the working languages of the Tribunal. Mr Rodic does speak the native language of the Accused, as does Mr Vasic. Thus, this is not a case in which, as has at times been the case, the assignment of a co-counsel who speaks the native language of the Accused has the desirable advantage of facilitating adequate communication between the Accused and lead counsel.

  9. Discussion of merits
  10. The submissions for the Defence in support of this Motion essentially repeat matters raised before the Registrar. The Lead Counsel relies in particular on Mr Rodicís experience in cases before the Tribunal and in some suggested similarities with the Strugar case, in which he was the lead defence counsel. Mr Rodicís experience in his domestic jurisdiction is also referred to. While it readily acknowledges Mr Rodicís general experience, the Trial Chamber accepts that these considerations are not of significant importance in this particular case and that it was well open to the Registry to conclude they did not justify an exception to the language qualification requirement. Even though the experience of Mr Rodic could be of some limited and general use to the defence of the Accused, its features that are purported to be specific to this case are few and each is of minor importance. In the Chamberís view, by his own military rank and experience the Accused is in a position to instruct his counsel about the structure of the Yugoslav Peopleís Army at the relevant time. While the charges against the Accused relate to events in Croatia, they are geographically and factually entirely different from the charges dealt with in the Strugar case. The specific advantages contended by Mr Vasic do not significantly differ from those that could be given by the assignment of another experienced counsel.

    There are countervailing disadvantages because of the proposed co-counselís lack of the required proficiency in either of the working languages of the Tribunal. This disadvantage is of considerable importance in this case because Mr Vasic, the assigned (lead) Counsel also lacks proficiency in either of the working languages of the Tribunal. The assignment of Mr Rodic as co-counsel in the present case would give rise to a number of difficulties for the conduct of the trial, especially in the use of courtroom facilities. Were Mr Rodic to be assigned as co-counsel, neither of the counsel for the Accused Mrksic would be able to follow significant aspects of the proceedings, particularly live transcripts in court. This would be productive of much ongoing difficulty and would inevitably delay the trial. Of course there are advantages if counsel is able to speak the language of the accused. In a case like the present one, however, these advantages are far too insignificant to counterbalance the impediment to the proceedings that may be brought about by the counselís difficulty, by virtue of their lack of proficiency in a working language, in following, and undertaking necessary steps in, the proceedings. In these circumstances it is not apparent that it would be in the interests of justice to waive the language qualification for counsel so as to allow the assignment of Mr Rodic as co-counsel as requested. It has not been shown, therefore, that the Registrar was in error in failing to assign Mr Rodic.

  11. Disposition

For these reasons, the Chamber finds that no justification has been demonstrated for interfering with the decision to refuse Mr Vasicís request for the assignment of Mr Rodic as co-counsel. Accordingly, it dismisses the Motion for review of the Registrarís decision.

 

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

Dated this seventh day of October 2005,
At The Hague
The Netherlands

___________________________
Judge Kevin Parker
Presiding Judge

[Seal of the Tribunal]


1. See Rules 45(B) of the Rules and Article 16(C) of the Directive.
2. Prosecutor v Enver Hadzihasanovic et al, Case No.: IT-01-47-PT, Decision on Prosecutionís Motion for Review of the Decision of the Registrar to Assign Mr Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002, paras 23-24. Note also Article 13(B) of the Directive which appears, however, to be directed to the case of a refusal to assign any counsel.
3. Ibid, paras 23-24; Prosecutor v Milan Martic, Case No.: IT-95-11-PT, Decision on Appeal against Decision of Registry, 2 August 2002, p 6.
4. Prosecutor v Dusko Knezevic, Case No.: IT-95-4-PT and IT-95-8/1-PT, Decision on Accusedís Request for Review of Registrarís Decision as to Assignment of Counsel, 6 September 2002, p 4.
5. Prosecutor v Miroslav Kvocka et al, Case No.: IT-98-30/1-A, Decision on Review of Registrarís Decision to Withdraw Legal Aid from Zoran Zigic, 7 February 2003, para 13.
6. Prosecutor v Vesselin Sljivancanin, Case No.: IT-95-13/1-PT, Decision on Assignment of Defence Counsel, 20 August 2003, paras 19-20 (footnotes omitted).
7. Prosecutor v Milan Martic, Case No.: IT-95-11-PT, Decision on Appeal against Decision of Registry, 2 August 2002, pp 5-6.
8. Croissant v Germany, EUR.CT.H.R. Judgement, 25 September 1992, Series A No. 237-B, para 29.
9. Prosecutor v Vidoje Blagojevic, Case No.: IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 7 November 2003, paras 21and 22. This decision was made before the July 2004 amendments to Rules 44 and 45 but those amendments do not appear to affect these observations of the Appeals Chamber.