Case No. IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
7 December 2004

PROSECUTOR

v.

SLOBODAN MILOSEVIC

____________________________________

DECISION ON ASSIGNED COUNSEL’S MOTION FOR WITHDRAWAL

____________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused:

Mr. Slobodan Milosevic

Court Assigned Counsel:

Mr. Steven Kay, QC
Ms. Gillian Higgins

Amicus Curiae:

Prof. Timothy McCormack

    I. BACKGROUND

  1. On 2 September 2004, the Trial Chamber gave an oral ruling in which it determined that it was both competent and appropriate to assign defence counsel to the Accused.1 The Trial Chamber further ordered the Registrar to endeavour in the first instance to secure the appointment of Mr. Steven Kay QC and Ms. Gillian Higgins as court assigned counsel.2 On 3 September 2004, the Deputy Registrar issued a decision assigning Mr. Steven Kay QC and Ms. Gillian Higgins as counsel to the Accused following their agreement to act.3 On the same day, the Trial Chamber issued an “Order on the Modalities to be Followed by Court Assigned Counsel”, in which it defined the role of court assigned counsel.4 On 1 November 2004, the Appeals Chamber issued its “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, in which it affirmed the Trial Chamber’s assignment of defense counsel, but reversed its Order on Modalities.5

  2. Following upon their appointment by the Registrar, court assigned counsel endeavoured to secure the attendance of witnesses to testify on behalf of the Accused, managing to call five witnesses to testify6 from a list of 140 witnesses that the associates of the Accused had identified as priority witnesses for the Kosovo part of the defence case.7 They encountered resistance and have made reference, both before this Trial Chamber 8 and the Appeals Chamber,9 to the lack of cooperation of potential defence witnesses, who declared that they refused to attend because they disagreed with the decision of the Trial Chamber to assign defence counsel to the Accused, contrary to his wishes.

  3. On 26 October 2004, subsequent to the hearing of the appeal but prior to determination thereof, court assigned counsel wrote a letter to the Registrar seeking withdrawal from their position as defence counsel under the provisions of Article 19 of the Directive on Assignment of Defence Counsel.10 On 27 October 2004, the Deputy Registrar issued a Decision referring the request to the Trial Chamber “for its consideration”, stating as follows:

    CONSIDERING that in the present circumstances, the Request raises issues that are specific to the context of the case and that consideration of the matters therein may be more appropriately addressed by the Trial Chamber in view of its Order of 2 September 2004.11

    On 2 November 2004, the Trial Chamber issued a Scheduling Order, stating that the assigned counsel’s request to withdraw would be heard on 9 November 2004.12 On 8 November 2004, court assigned counsel filed before the Trial Chamber “Assigned Counsel’s Motion for Withdrawal with Annex A”. The Trial Chamber then heard substantial submissions on the matter from court assigned counsel, the Accused and the Prosecution over three days from 9 to 11 November 2004.

    II. THE APPLICATION TO WITHDRAW

  4. The application is made pursuant to Article 19 of the Directive and Article 9 of the ICTY Code13, which provide as follows:

    Article 19
    Suspension and Withdrawal of counsel

     

    (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.

    …

    (F) 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.

    Article 9
    Declining, Terminating or Withdrawing Representation

    (A) Counsel shall not represent a client if:

    (i) representation will result in conduct which is criminal, fraudulent or a violation of the Statute, the Rules, this Code or any other applicable law;
    (ii) counsel’s physical or mental condition materially impairs counsel’s ability to represent the client; or
    (iii) counsel’s representation is terminated by the client or withdrawn by the Registrar.

    (B) Counsel may terminate or request, if applicable subject to the provisions of the Directive, withdrawal of his representation of a client if such termination or withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

    (i) the client has used counsel’s services to perpetrate a crime or fraud, or persists in a course of action involving counsel’s services that counsel reasonably believes is criminal or fraudulent;
    (ii) the client insists upon pursuing an objective that counsel considers repugnant or imprudent;
    (iii) the client fails to substantially fulfil an obligation to counsel regarding counsel’s services and has been given reasonable warning that counsel will terminate or request withdrawal of his representation unless the obligation is fulfilled; or
    (iv) other good cause for termination or withdrawal exists.

    (C) Subject to leave from the Chamber, if representation by counsel is to be terminated or withdrawn, counsel shall not do so until a replacement counsel is engaged by the client or assigned by the Registrar, or the client has notified the Registrar in writing of his intention to conduct his own defence.

    (D) Upon termination or withdrawal of representation, counsel shall take steps to the extent reasonably practicable to protect the client’s interests, such as giving sufficient notice to the client, surrendering papers and property to which the client or the Tribunal is entitled and refunding any advance payment of fee that has not been earned.

    Counsel also rely upon a number of other provisions of the ICTY Code. In particular, Articles 8,14 10,15 11,16 1217 and 1418 of the ICTY Code are cited as requiring counsel to secure the instructions of the client, failing which counsel will be in breach of the ICTY Code.

    A. Submissions

    1. Court Assigned Counsel

  5. The submissions of court assigned counsel can be summarised as follows:

    (a) In the absence of instructions from, and communication with, the Accused (whom counsel also refer to as their client), they are unable: (i) to know or abide by the Accused’s “objective of representation”; (ii) to fulfil counsel’s duty to communicate with the Accused; (iii) to know and thereafter protect the best interests of the Accused ; and thus to meet significant requirements of the ICTY Code.19 They had anticipated that there was a chance of the Accused cooperating with them, but the Trial Chamber’s Order on Modalities, requiring counsel to lead witnesses first and providing for the Accused to apply to ask questions thereafter, ruined any prospect of a cooperative relationship emerging;20

    (b) In light of the Accused’s expressed desire to represent himself, there is a conflict of interest between the Accused’s instructions as made known by him and the order assigning counsel; acting against the expressed wishes of the Accused, and without instructions from him, would be disloyal to their client and detrimental to the interests of justice, in breach of Article 14 of the ICTY Code21;

    (c) The Order of the Trial Chamber to assign Counsel to an unwilling and uncooperative Accused imposes an external pressure upon court assigned counsel that compromises their professional integrity, and is contrary to Article 10 of the ICTY Code, as well as provisions of the Code of Conduct of the Bar of England and Wales. What has occurred since the time of their assignment has led to a complete and irrevocable breakdown in the relationship between them and the Accused.22 Their professional conduct has been impugned. Their professionalism and their conduct of the defence case have been criticised by the Accused,23 who has also made a complaint to the Dutch Bar against lead counsel; and

    (d) Should their application for leave to withdraw be refused, counsel may in any event unilaterally terminate their assignment as defence counsel on the basis that good cause exists for them to do so.

  6. Court assigned counsel submit that in the present circumstances it is not possible to continue to represent the Accused without breaching the ICTY Code and the Code of Conduct of the Bar of England and Wales and conclude their application as follows :

    For the aforementioned reasons, in particular (i) the Accused’s refusal to communicate with Assigned Counsel, (ii) the inability of Assigned Counsel to advise the Accused in relation to his case and provide him with effective representation, (iii) the inability of Assigned Counsel to know and thereafter protect the Accused’s best interests and (iv) the criticism of the professionalism of Assigned Counsel by the Accused, it is submitted that there is “good cause” for Assigned Counsel to be allowed to withdraw. Assigned Counsel hereby request withdrawal from their current position under the provisions of Article 19 of the Directive on Assignment of Defence Counsel.24

    2. The Accused

  7. The Accused argues that court assigned counsel could have been in no doubt as to his opposition to their appointment and that they accepted that role despite his emphatic opposition,25 implying that his lack of cooperation and criticism of them and their role were entirely foreseeable. In response to a reference to Appeals Chamber jurisprudence that an accused does not have the right to unilaterally destroy the trust between himself and his counsel,26 the Accused stated that there could be no issue of destruction by him of a relationship of trust with court assigned counsel. He submitted: “how can you destroy something that does not exist in the first place?”.27

    3. The Prosecution

  8. The Prosecution argues that there is no legal basis for the application of court assigned counsel to withdraw.28 It is argued that the relationship between assigned counsel and the Accused cannot be properly described as that of a “client”, because they were imposed upon the Accused, as opposed to being the subject of engagement by the Accused.29 Furthermore, court assigned counsel are attempting to undo a contract they entered into fully aware of the potential problems on which they now seek to rely, and they should not be allowed to do so because: (a) they have made publicly damning assertions about the ability of any counsel to appear in the role they voluntarily occupy, thus diminishing or extinguishing the pool of counsel who would otherwise have been prepared to accept the charge they undertook; (b) they have successfully appealed from the original modalities ordered by the Trial Chamber; and (c) they have already called witnesses.30 The Prosecution argues that court assigned counsel are perfectly able to act in the best interests of the Accused, because those interests are forensic, and court assigned counsel should be able to deduce them from the statements and cross-examination of the Accused.31 They argue further that the codes of conduct relied upon by court assigned counsel do not effectively cover the assignment of counsel on an unwilling accused,32 that reliance on provisions concerning a conflict of interest is misplaced in the context of these circumstances, and that the jurisprudence of the ICTY is that, in circumstances where an accused unjustifiably resists legal representation from assigned counsel, counsel’s professional obligation to continue to represent the accused remains.33

    III. JURISDICTION OF THE TRIAL CHAMBER TO DETERMINE THE APPLICATION

  9. Applications by assigned counsel to withdraw should normally be made to and determined by the Registrar in terms of Article 19 (A) of the Directive with a right, set out in Article 19 (F), to apply to the President to review the Decision.

  10. The Appeals Chamber has stated that “it is not ordinarily appropriate for a Chamber to consider motions on matters that are within the primary competence of the Registrar”.34 In a decision in the Blagojevic case, the Trial Chamber reviewed a decision by the Registrar refusing to withdraw the counsel assigned to the Accused, determining that the assignment was commensurate with the rights of the Accused to a fair trial.35 The Appeals Chamber held that, while a line of authority existed upon which the Trial Chamber could conclude that it had the power to act in this way, it was in the interests of justice for the Appeals Chamber to depart from it.36 The Appeals Chamber went on to state:

    The only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair; it cannot appropriate for itself a power which is conferred elsewhere. As such, the only option open to a Trial Chamber, where the Registrar has refused the assignment of new Counsel, and an accused appeals to it, is to stay the trial until the President has reviewed the decision of the Registrar. The Appeals Chamber considers that it is only by adopting this approach that the Trial Chamber properly respects the power specifically conferred upon the Registrar and the President by the Directive to determine whether an accused’s request for withdrawal of Counsel should be granted in the interests of justice.37

    The Trial Chamber understands the Appeals Chamber to be saying that, unless an application normally falling within the competence of the Registrar goes to the fairness of the trial, a Trial Chamber should not determine the matter.38

  11. The Trial Chamber initially considered whether, in light of the Appeals Chamber authority, it has jurisdiction to determine the application by court assigned counsel to withdraw. It noted that all the parties expressed the view that it had jurisdiction to hear the application.39 It further noted that the Deputy Registrar referred the initial request for withdrawal to the Chamber for its consideration, citing the order of the Trial Chamber to the Registrar to assign counsel and to endeavour, in the first instance, to assign Mr. Kay and Ms. Higgins, who now make the application to withdraw.40 At the hearing on 9 November 2004, the Trial Chamber made an oral ruling that it had jurisdiction:

    The Chamber has considered the Statute, the Rules, and the jurisprudence of the Tribunal and has concluded that it does have jurisdiction to hear the application.41

  12. The issue raised by the motion for withdrawal of counsel on the grounds argued go to the heart of the question whether practical effect can ever be given to a Trial Chamber’s decision to assign counsel to an intransigent accused.42 In its Assignment Decision, the Trial Chamber held:

    The Trial Chamber is…entirely satisfied that, on the proper interpretation of Articles 20 and 21, it is competent, in appropriate circumstances, to insist upon an accused being represented by counsel in spite of his wish to represent himself. If the Accused refuses to appoint his own counsel, then it is open to the Trial Chamber to assign counsel to conduct the defence case.43

    The Appeals Chamber held that determination to be correct.44 Since the initial decision that counsel should be assigned was made to ensure the fairness of the trial,45 it follows that an application which effectively and fundamentally challenges that decision is subject to the jurisdiction of the Trial Chamber.

    IV. CONSIDERATION OF THE APPLCATION

    A. The relevant legal instruments

  13. Matters relating to the assignment and withdrawal of counsel at the International Tribunal are governed by the Directive and ICTY Code. Both instruments were adopted pursuant to the Statute and Rules of Procedure and Evidence (“Rules”) of the International Tribunal.46 The Rules and all other applicable instruments, including the Directive and the ICTY Code, are to be read and applied subject to the Statute. That is the natural relationship between an enabling instrument and any other instrument, including Rules, made thereunder – a point not specifically covered in the Statute of the ICTY, but expressly set out in the ICC Statute.47

  14. Rule 44 (C) of the Rules sets out the various instruments relevant to the performance of counsel’s duties before the Tribunal:

    In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Tribunal, the Host Country Agreement, the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel adopted by the Registrar and approved by the permanent Judges.

    The relevant provisions of the Statute are Articles 20 and 21, which require a Trial Chamber to ensure that the proceedings are fair and expeditious.

  15. Court assigned counsel make reference in their application to various domestic and international Codes of Conduct.48 Particular emphasis is placed on the Code of Conduct of the Bar of England and Wales, and in particular Article 609 which provides that a barrister may withdraw from a case in certain circumstances.49 However, Article 4 of the ICTY Code provides: “If there is any inconsistency between this Code and any other codes of practice and ethics governing counsel, the terms of this Code prevail in respect of counsel’s conduct before the Tribunal”. The Trial Chamber notes, however, that counsel did not identify any inconsistency between the International Practice Rules of the Code of Conduct of the Bar of England and Wales50 and that counsel themselves acknowledged the precedence of the ICTY Code.51 The Trial Chamber accordingly holds that, although it is not inappropriate to refer to other Codes for guidance in interpretation of the ICTY Code, the determination of the application is to be made primarily on the basis of the ICTY Code and Directive.

  16. While the ICTY Code, as well as other codes referred to, contain no express provisions on how counsel are to conduct themselves in circumstances where they are assigned to an unwilling accused, that does not mean that they cannot properly be interpreted and applied to that situation. The ICTY Code and the other codes do not exist in a vacuum; they are to be interpreted and applied in the light of the applicable law,52 which includes the requirement of Article 20 of the ICTY Statute to ensure that a trial is fair and expeditious and the terms of Article 21 setting out the rights of the accused, the Appeals Chamber ruling on the assignment of counsel in this case and the Appeals Chamber ruling in the Blagojevic case.

    B. Applicability of the ICTY Code and Directive to the Application
    (Submissions set out in paragraph 5 (a), (b) and (c) above)

  17. If the submissions of assigned counsel, more fully reflected in paragraphs 5 (a), (b) and (c) above, were correct, that would mean that a Trial Chamber could not effectively assign counsel without the cooperation of the accused. However, the jurisprudence of the Tribunal is that counsel should continue to act in the absence of cooperation. The Appeals Chamber has held that it is competent to assign counsel to an unwilling accused, and that it was within the lawful discretion of the Trial Chamber to do so in the circumstances of this case.53 If it is competent to assign counsel in the circumstances of this case, then the refusal of the Accused to communicate with or instruct assigned counsel cannot be a basis for withdrawal.

  18. Furthermore, the Appeals Chamber has ruled that an accused “does not have the right unilaterally to destroy the trust between himself and counsel.54 Similarly, an accused does not have the right to claim a breakdown in communication through unilateral actions.”55 The Appeals Chamber went on to hold: “In circumstances such as this, where an Appellant unjustifiably resists legal representation from assigned Counsel, Counsel’s professional obligations to continue to represent the accused remain”.56 Whether or not a relationship of trust ever existed between court assigned counsel and the Accused in this case, the principle applied by the Appeals Chamber is equally relevant. Whether an accused takes action to prevent the creation of a relationship of trust with assigned counsel or to destroy such a relationship, that does not put counsel in breach of any provision of the ICTY Code, including Article 14 (A ) or (B), which deal with the question of conflict of interest. Equally, there is, on the part of court assigned counsel, no breach resulting from the refusal of the Accused to communicate with or instruct them.

  19. A critical aspect of the argument of court assigned counsel is that their inability to obtain instructions from the Accused means that they are unable to act in his best interests, as required by Article 11 of the ICTY Code. It is argued that “Assigned Counsel are unable to know and therefore cannot protect the Accused’s best interests in circumstances where he will not communicate with them”.57 The Trial Chamber finds that to be an erroneous analysis of the position of assigned counsel. What is required of counsel is that they act in what they perceive to be the best interests of the Accused. That is what the Trial Chamber clearly anticipated in its Order on Modalities, and it is all that can be reasonably expected of counsel in such circumstances. To hold otherwise would be to allow an accused to frustrate the statutory duty of the Trial Chamber to ensure that a trial is fair. As the Appeals Chamber in Blagojevic held:

    The Appeals Chamber rejects the argument of the Appellant that his “subjective” views about how his trial should proceed may override the professional obligation of Counsel to act in the best interests of the Appellant. Counsel has an obligation to consult with the Appellant but he is not bound by the Appellant’s views as to what are the best means to achieve the objects of the Appellant’s defence.58

    This position is consistent with the terms of Article 8 of the ICTY Code. When counsel is assigned and acts in accordance with a court order, the obligations inherent in the normal counsel-client relationship must be modified to the extent necessary to give effect to the order appointing counsel. In this regard, the Trial Chamber notes the submission of the Prosecution that in the circumstances of this case “ there was never the relationship of client”.59

  20. The Trial Chamber observes that the position stated in the foregoing paragraph is consistent with the provisions relating to the responsibilities of court appointed counsel in cases involving vulnerable witnesses in jurisdictions within the United Kingdom, including England and Wales, which is the home jurisdiction of court assigned counsel. In that jurisdiction the Youth Justice and Criminal Evidence Act provides that an accused charged with a sexual offence may not cross-examine in person certain protected witnesses.60 With respect to other witnesses, the court may in the interests of justice prevent such an accused from cross-examining61 and must invite the accused to arrange for counsel to conduct the cross-examination.62 As noted by the Trial Chamber in its Assignment Decision,63 where such arrangements have not been made, the English court must consider whether it is in the interests of justice for the witness to be cross-examined by court- assigned counsel, and counsel so assigned “shall not be responsible to the accused ”.64

  21. The position in Scotland relates even more closely to that in the present case. There an accused charged with a sexual offence is prohibited from conducting his defence in person.65 Should he fail to appoint his own lawyer, one must be appointed by the court. The lawyer so appointed is bound to ascertain and act upon the instructions of the accused and, where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused.66

  22. The Trial Chamber observes that assignment of counsel against the wishes of the accused is a developing area of the law both in national and international jurisdictions. In such a situation it is plain that any code regulating the conduct of counsel, drafted at a time when such appointments were not specifically considered, must be construed in light of developments in the law. Thus, where the highest judicial authority in the Tribunal has determined that counsel may be assigned to an accused against his will and in anticipation of his non-cooperation, the ICTY Code and any other applicable Code under Rule 44 must be construed in a manner that takes account of that development. This is so because, as set out earlier in this Decision, the Code, as a subsidiary instrument, must be construed consistently with the Statute. Counsel discharge their duty to represent the interests of the accused to whom they are assigned by acting in what they, in the exercise of their professional judgement, perceive them to be. The refusal of the Accused to instruct or cooperate, let alone his criticism of counsel in the conduct of his defence, all of which was foreseeable by counsel prior to their assignment, cannot be the basis for determining whether counsel are acting in the best interests of the Accused.

  23. It follows from the previous analysis that assigning counsel to an unwilling and uncooperative accused – including an accused who attacks the professional conduct of counsel – cannot be said to impose pressure on counsel such that their integrity is compromised within the meaning of Article 10 of the ICTY Code, which deals with professional integrity.

  24. Counsel also seek to rely upon an advisory opinion of the Disciplinary Council of the ICTY Association of Defence Council, which concluded that, on the basis of the material reviewed, “there are grounds to assert that an irreconcilable conflict exists between Mr. Kay and Mr. Milosevic such that the request to withdraw is a course of action which is fully consistent with the ethical obligations imposed on counsel…SandC…that by withdrawing from this case, Mr. Kay would not be in breach of the Code…”.67 Although this document has not been filed or exhibited in accordance with the Rules and practice of the Tribunal, the Trial Chamber takes note of it, but observes that it does not assist in a determination of the issue under consideration.

  25. During the hearing, lead counsel also referred to a complaint made on behalf of the accused to the Dutch Bar Council with respect to his role in these proceedings and in respect of which, it was said, the Dutch Bar Council had claimed jurisdiction.68 Mr. Kay stated that he had received a letter from the Council to the effect that the person writing the letter “could see no further ground in the complaint but giving the opportunity to the particular attorney to make representations further on the matter”.69 Since the complaint was not submitted to the Trial Chamber, there is no basis upon which it can give consideration to it. The Trial Chamber simply notes that, by its decision assigning counsel, it set counsel the task of acting for the accused in his best interests. The Trial Chamber has no reason to doubt that it is what counsel have done. Their submissions based on this complaint are accordingly misconceived.

  26. In light of the foregoing, the Trial Chamber holds that good cause justifying withdrawal of counsel has not been established. On the contrary, the Trial Chamber remains of the view that the presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proceedings. It is, therefore, plainly in the interests of justice that counsel should remain assigned to the Accused and should not be permitted to withdraw.

    C. Termination of assignment
    (Submission set out in paragraph 5 (d) above)

  27. The initial application to the Registrar for withdrawal on 26 October 2004, the application filed by court assigned counsel before the Trial Chamber on 8 November 2004, and the oral submissions made by counsel up until the hearing on 11 November 2004, concern a request for withdrawal as assigned counsel under Article 19 of the Directive.

  28. On the third day of the hearing of this matter, court assigned counsel argued on an alternative basis that they may, pursuant to either the ICTY Code – or, if that Code were not applicable to them, the Code of Conduct of the Bar of England and Wales – unilaterally terminate their assignment as defence counsel.70 They argued that they did not need authority from the Chamber to do so: “It’s a personal decision”.71

  29. Article 9 (B) of the ICTY Code provides for the circumstances in which counsel may terminate their assignment. Under that provision, as relevant to the facts of this case, counsel must show that their termination (or withdrawal) can be accomplished without material adverse effect on the interests of the client, or that other good cause exists. Contrary to the argument made by court assigned counsel, it is not simply a question of a subjective determination by counsel to terminate their assignment. The Appeals Chamber has confirmed that their assignment was lawful, and this Trial Chamber has determined that their withdrawal in the present circumstances would militate against the fair and expeditious conduct of the proceedings and that no good cause therefore exists. It is plain that the same conclusion would apply to a unilateral termination by counsel of their assignment. In these circumstances, unilateral termination of their assignment would not be consistent with the provisions of Article 9 (B), and in particular Article 9 (B) (iv), of the ICTY Code.

  30. The Trial Chamber further notes that, in circumstances where counsel’s assignment is either withdrawn or is terminated, Article 9 (C) of the ICTY Code obliges them, subject to leave of the Chamber, to continue to act for the Accused until a replacement counsel is assigned by the Registrar.72 The Trial Chamber notes the recognition by court assigned counsel during the hearing that, were their assignment to be withdrawn or were they to terminate their assignment as counsel in this case, they would be bound to comply fully with this requirement.73

    V. CONTINUING ROLE OF COURT ASSIGNED COUNSEL

  31. The Appeals Chamber, having affirmed the Trial Chamber’s decision assigning counsel and reversed its order on the modalities of how assigned counsel were to act, envisaged a continuing role for assigned counsel, stating:

    On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense …The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.

    The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy…If Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber.74

  32. In addition to the two functions outlined by the Appeals Chamber, counsel could continue to serve a valuable function in the filing of written legal submissions on matters such as subpoenas and binding orders in respect of certain witnesses, as well as other important aspects of the conduct of the defence case.

  33. In setting out a potential role for court assigned counsel, the Appeals Chamber was doing no more than acknowledging the Trial Chamber’s rationale for the assignment of counsel: “There SisC a real danger that this trial might last for an unreasonably long time or, worse yet, might not be concluded should the Accused continue to represent himself without the assistance of counsel”.75 The requirement that the trial be fair and that it be concluded in a sufficiently expeditious manner cannot be frustrated by the Accused’s refusal to communicate with or instruct counsel lawfully assigned to him.

  34. It follows from the above that court assigned counsel should continue to act in accordance with the modalities set out by the Trial Chamber in its Order of 3 September 2004, subject to the modification of those modalities made by the Appeals Chamber in its Decision, and the possibility highlighted in paragraph 32 above regarding the filing of written legal submissions on certain matters. The underlying obligation of counsel will be to continue to act in the best interests of the Accused, as defined and explained in this Decision.

    VI. DISPOSITION

  35. For the foregoing reasons, the Trial Chamber determines that the application by court assigned counsel to withdraw from their assignment should be denied and instructs the Registrar, pursuant to his powers under Article 19 of the Directive, to deny the application.

 

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

_____________
Patrick Robinson
Presiding

Dated this seventh day of December 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. See “Reasons for Decision on Assignment of Defence Counsel”, 22 September 2004 (“Assignment Decision”), para.1.
2. T. 32391.
3. “Decision”, 3 September 2004, assigning Mr. Steven Kay Q.C. as lead counsel and Ms. Gillian Higgins as co-counsel for the Accused, effective on that date.
4. (1) It is the duty of court assigned counsel to determine how to present the case for the Accused, and in particular it is their duty to:

(a) represent the Accused by preparing and examining those witnesses court assigned counsel deem it appropriate to call;
(b) make all submissions on fact and law that they deem it appropriate to make;
(c) seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused’s case properly, including the issuance of subpoenas;
(d) discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and
(e) act throughout in the best interests of the Accused;

(2) The Accused may, with the leave of the Trial Chamber, continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses, following examination by court assigned counsel;
(3) The Accused has the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel; and
(4) Court assigned counsel is authorised to seek from the Trial Chamber such further orders as they deem necessary to enable them to conduct the case for the Accused .
5. For the particular approach of the Appeals Chamber to the modalities, see paragraph 31 of this Decision.
6. For a description of the witnesses and dates of testimony, see “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, paras. 7-13.
7. Ibid, para. 14; see also, hearing of 9 November 2004, T. 33198.
8. See, for example, hearing of 15 September 2004.
9. See transcript of the appeals hearing, 21 October 2004, T. 26, where Mr. Kay stated: “The high number of refusals of witnesses to cooperate, the antagonism of those witnesses towards me, their disapproval of me, the accusation that I’m really prosecuting him rather than defending him, all those issues are completely unsatisfactory for a counsel to stand here and say he is defending the accused”.
10. “Re: The Prosecutor v. Slobodan Milosevic IT-02-54-T – Withdrawal of Assigned Counsel”, 27 October 2004; Directive on Assignment of Defence Counsel, IT/73/Rev. 10, 28 July 2004 (“Directive”).
11. “Referral of Request to Withdraw ”, Deputy Registrar, 27 October 2004.
12. “Scheduling Order for Hearings on 9 to 11 November 2004,” 2 November 2004.
13. “Code of Professional Conduct for Counsel Appearing Before the International Tribunal”, IT/125/Rev.1, 12 July 2002 (“ICTY Code”).
14. (A) Counsel shall advise and represent a client until counsel’s representation is terminated by the client or withdrawn by the Registrar.
(B)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.
15. In the course of providing representation to a client, counsel shall:
(i) act with competence, skill, care, honesty and loyalty;
(ii) exercise independent professional judgement and render open and honest advice;
(iii) never be influenced in the matter of his representation;
(iv) preserve their own integrity and that of the legal profession as a whole;
(v) never permit their independence, integrity and standards to be compromised by external pressures.
16. Counsel shall represent a client diligently and promptly in order to protect the client’s best interests. Unless the representation is terminated or withdrawn, counsel shall carry through to conclusion all matters undertaken for a client within the scope of his legal representation .
17. Counsel shall 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 for information.
18. “(A) Counsel owes a duty of loyalty to a client. Counsel also has 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; (B) Counsel shall exercise all care to ensure that no conflict of interest arises.”
19. “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 31.
20. “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 34; see also, hearing of 10 November 2004, for example, pp. 33242-244.
21. Ibid, paras. 34, 37-38.
22. See, for example, hearing of 9 November 2004, T. 33199.
23. Ibid, paras. 7-13, 19, 21. Counsel put their point during the hearing on this matter as follows: “The problem that came about, in my view, was the modalities and the extreme form. That is what caused a breakdown in relations, and we feel caused us eventually to be at the stage where we are in conflict with the client, as assigned counsel, and why we have had to make the application to withdraw. This arises from the conduct he has engaged in , which has been to criticise our professionalism, to play the trick with the witness Kanelli, to encourage a report to the Dutch Bar against our conduct of his case. We have had to, in our own position, continue to fight to his -- for his rights to represent himself, and in doing so in the Appeals Chamber have had to say this is his case, we don't know it. This is his Defence, this is something that only he can present, and refer, in fact, to once, as I cite in our text, once what was a cordial relationship has deteriorated and that we are unable to function with him.”
24. Ibid, para. 56.
25. Hearing of 10 November 2004, T. 33281.
26. Hearing of 10 November 2004, T. 33229.
27. Ibid, T. 33283.
28. Ibid, T. 33290.
29. Ibid, T. 33286.
30. Ibid, T. 33291-33292.
31. Ibid, T. 33293-33295.
32. Ibid, T. 33304.
33. Ibid, T. 33301. The relevant jurisprudence will be discussed below.
34. Prosecutor v. Delalic et al , “Order on Esad Landzo’s Motion for Expedited Consideration”, Case No. IT-96-21 -A, 15 September 1999, cited by the Appeals Chamber in Prosecutor v. Blagojevi c, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2004.
35. Prosecutor v. Blagojevic, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2003, para. 6.
36. Ibid, para. 7.
37. Ibid.
38. The Appeals Chamber nevertheless decided to entertain the matter on appeal from the Trial Chamber’s decision.: “Without prejudice to the restriction indicated in paragraph 7 and as the Trial Chamber has considered the matter on the basis it was competent to review the Registrar’s decision the Appeals Chamber in the circumstances of this case will consider all the grounds of appeal put forward by the appeal”. Ibid, para. 8.
39. Hearing of 9 November 2004, T. 33192.
40. “Decision”, 3 September 2004.
41. Hearing of 9 November 2004, T. 33192.
42. See, for example, hearing of 10 November 2004, T. 33250.
43. Assignment Decision, para. 34.
44. “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, para. 15.
45. See “Reasons for Decision on Assignment of Defence Counsel”, 22 September 2004 (“Assignment Decision”), para. 34.
46. See, Preamble to the Directive: “CONSIDERING the Statute of the Tribunal as adopted by the Security Council under resolution 827 (1993) of 25 May 1993, as subsequently amended, and in particular Articles 18 and 21 thereof”; and the ICTY Code: “Considering the Statute of the Tribunal adopted by Security Council under Resolution 827 of 25 May 1993, as subsequently amended, and in particular Article 21 thereof”.
47. Article 51 (4) of the ICC Statute provides that “the Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute”, and in Article 51 (5) that “in the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail”.
48. See Annex A of “Assigned Counsel’s Motion for Withdrawal With Annex A”, 8 November 2004, in which reference is made to Code of Conduct of the Bar of England and Wales; the Dutch Code of Conduct of Advocates (1992); the Code of Conduct for Lawyers in the European Union; the Draft Code of Conduct for Counsel before the ICC; Union Internationale des Avocats: International Charter of Defence Rights, Statement of Aims; Recommendation 21 of the Council of Europe Committee of Ministers to member states on the freedom of exercise of the profession of lawyer (adopted by the Committee of Ministers on 25 October 2000 at the 727th Meeting of the Ministers’ Deputies);Basic Principles on the Role of Lawyers , Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990; the Draft Principles on the Independence of the Legal Profession (“NOTO PRINCIPLES”; the Draft Universal Declaration on The Independence of Justice (“SINGHVI DECLARATION”). At the hearing on10 November 2004, reference was also made by counsel to the International Bar Association Code of Ethics (1988 edition).
49. See Annex A of “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, Registry page 39428.
50. Article 2 refers to certain fundamental principles in Part III of the Code, and the Trial Chamber notes that none of the provisions of the ICTY Code are inconsistent with any of them: See Annex A of “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, Registry page 39425 .
51. See, “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 29.
52. The practice of interpreting the Statute and the Rules as a treaty should be equally applicable to the ICTY Code and Directive as instruments made under the Statute. In that context, it is a general rule of treaty interpretation that in interpreting a treaty the context includes any relevant rule of international law. Article 31 (3) (c) of the Vienna Convention on the Law of Treaties provides: “There shall be taken into account, together with the context:…(c) any relevant rules of international law applicable in the relations between the parties.”
53. “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, para. 15.
54. Prosecutor v. Blagojevic, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2003, para. 51.
55. Ibid.
56. Ibid, para. 54.
57. “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 35.
58. Prosecutor v. Blagojevic, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2003, para. 27. (footnotes omitted)
59. Hearing of 10 November 2004, T. 33286.
60. Youth Justice and Criminal Evidence Act (England) 1999, secs. 34-35. Protected witnesses in the Act include complainants , witnesses to the crime and children.
61. Ibid, sec. 36.
62. Ibid, sec. 38.
63. See, “Reasons for Decision on Assignment of Defence Counsel”, 22 Sept. 2004 (“Assignment Decision”), para. 46.
64. Ibid.
65. Criminal Procedure (Scotland) Act 1995, sec. 288C(1).
66. Criminal Procedure (Scotland) Act 1995, sec. 288D(4). “Subject to subsection (3) above, it is the duty of a solicitor so appointed – (a) to ascertain and act upon the instructions of the accused; and (b) where the accused gives no instructions or inadequate or perverse instructions , to act in the best interests of the accused.” An executive pre-legislative paper explaining the provisions stated that it “would intend that the court-appointed lawyer should try to obtain instructions from the accused, with a view possibly to conducting the whole of the defence case, if the accused could be persuaded to agree. But clearly any responsibility the lawyer has to the accused must be severely limited in cases where the accused has not co-operated with the lawyer or has even tried to obstruct or mislead him”, thus clearly anticipating counsel acting in circumstances not dissimilar to this case: Executive, “REDRESSING THE BALANCE: Cross-Examination in Rape and Sexual Offence Trials”, 1991, para. 68.
67. See, hearing of 11 November 2004 , T. 33341-33344.
68. See, hearing of 9 November 2004 , T. 33207-33210.
69. Ibid.
70. See, hearing of 11 November 2004, T. 33337-33346.
71. Ibid, T. 33339-33340.
72. The reference at the end of that provision to an accused notifying the Registrar in writing of his intention to represent himself is not of relevance to the circumstances of this case.
73. See, hearing of 11 November 2004, T. 33346.
74. “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, paras. 19-20.
75. See, “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, para. 7.