Before:
Judge Theodor Meron, President

Registrar:
Hans Holthuis, Registrar

Decision:
7 February 2005

____________________________________

The Office of the Prosecutor:

Carla Del Ponte
Geoffrey Nice
Hildegard Uertz-Retzlaff

The Accused

Slobodan Milosevic

Assigned Counsel

Steven Kay
Gillian Higgins

Amicus Curiae

Timothy McCormack

1. I, Theodor Meron, President of the International Criminal 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” or “ICTY ”), am seised of “Assigned Counsel’s Request to the President Pursuant to Article 19(F) of the Directive on Assignment of Defence Counsel for a Review of the Deputy Registrar’s Decision Dated 14 December 2004 Refusing Assigned Counsel’s Application to Withdraw with Attachment 1” (“Request for Review of Registrar’s Decision on Withdrawal ”), filed by Assigned Counsel for Slobodan Milosevic on 28 December 2004.

2. This appeal arises from the ongoing efforts of Slobodan Milosevic’s court-assigned lawyers, Steven Kay and Gillian Higgins, to withdraw as Milosevic’s counsel before the Tribunal. Kay and Higgins did not begin the trial as assigned counsel: Milosevic represented himself throughout the Prosecution’s case.¹ Because he was incapacitated with some frequency by poor health, however, the trial had to be repeatedly adjourned in order to allow for his recovery.² At the conclusion of the Prosecution’s case, the Trial Chamber decided that Milosevic’s repeated bouts of illness were endangering the integrity of the trial and, potentially, the fairness of the ultimate verdict.³ The Trial Chamber therefore decided to assign counsel to represent Milosevic notwithstanding his opposition to such assignment, and named Kay and Higgins (who had been acting as amici curiae) to represent Milosevic for the second half of his trial. In its November 1 Decision, the Appeals Chamber upheld the Trial Chamber’s decision to assign counsel, but held that the Trial Chamber must operate under “the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case.”⁴

3. Before the Appeals Chamber had issued its decision affirming the Trial Chamber’s assignment of counsel, Assigned Counsel wrote to the Registrar seeking withdrawal from their appointment⁵ under Article 19 of the Directive on Assignment of Defence Counsel.⁶ The Registrar⁷ referred this request for withdrawal to the Trial Chamber,⁸ which heard arguments on the matter after the Appeals Chamber’s decision made it clear that assigned counsel would indeed remain in place.⁹ On 7 December 2004, the Trial Chamber issued its “Decision on Assigned Counsel’s Motion for Withdrawal,” in which it indicated that it found no basis for Assigned Counsel’s request to withdraw. The Trial Chamber found that “good cause justifying withdrawal of counsel has not been established,” and that “the presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proceedings.”¹⁰ A week later, the Registrar issued a decision noting the Trial Chamber’s decision, concluding that “the Registry is not satisfied that it is in the interest of justice to withdraw the Court Assigned Counsel pursuant to Article 19(A) of the Directive,” and deciding to “deny the Request and confirm[] Mr. Kay and Ms. Higgins’ assignment as Court Assigned Counsel for the Accused.”¹¹ Assigned Counsel then filed their Request for Review of Registrar’s Decision on Withdrawal with me as President of the Tribunal pursuant to Article 19(F) of the Directive on the Assignment of Defence Counsel.

4. Article 19 of the Directive on Assignment of Defence Counsel provides:

19(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

* * *

19(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.

The President’s review of the Registrar’s decision under Article 19(F) is “neither a rehearing nor an appeal.”¹² Instead, I am required to consider the question at one remove from its underlying substance, by focusing on “the propriety of the procedure and the manner by which the Registrar reached his decision.”¹³ Specifically, I will only overrule a decision taken by the Registrar if

the Registrar erred in law in interpreting the Directive on the Assignment of Defence Counsel or failed to observe any basic rules of natural justice or to act with procedural fairness toward the accused, or if he has taken into account irrelevant material or failed to take into account relevant material, or [if] he has reached a conclusion that no reasonable person could have reached on the material before the Registrar.¹⁴

This deferential nature of this review means that, if the Registrar’s procedurally proper application of the correct law yields a reasonably defensible conclusion, I am required to let it stand even if I might have reached a different conclusion on de novo consideration of the question.

5. Under Article 19(F) of the Directive on Assignment of Defence Counsel, Assigned Counsel had two weeks to file their request for review of the Registrar’s decision. The Registrar’s decision was issued on 14 December 2004, and the Request for Review of Registrar’s Decision on Withdrawal was filed on 28 December 2004. The Practice Direction governing filings before the Appeals Chamber stipulates that “time-limits... shall run from, but shall not include, the day upon which the relevant document is filed.”¹⁵ While this Practice Direction technically does not apply to challenges brought under the Directive on Assignment of Defence Counsel, I see no reason to calculate timeliness under the Directive any differently. Since Assigned Counsel’s request for review was filed on the fourteenth day following the Registrar’s decision (i.e., not counting the day of the decision itself), I find that it was filed within Article 19(F)’s two-week time limit.

6. It should also be noted that my review in this matter is limited to the Registrar’s denial of Assigned Counsel’s request to withdraw. Article 19 of the Directive on Assignment of Defence Counsel does not give the Trial Chamber the power to issue an order to the Registrar at this stage of the proceedings. Article 19 provides a clear two-step procedure governing an assigned counsel’s efforts to withdraw. Counsel must first file a withdrawal request with the Registrar.¹⁶ If the Registrar denies this request, Article 19(F) then permits counsel to “seek the President’s review of the decision of the Registrar.” The Trial Chamber does not play a role at either step. As the Appeals Chamber has previously held in essentially the same context, a Trial Chamber “cannot appropriate for itself a power which is conferred elsewhere”;¹⁷ rather, “the only option open to a Trial Chamber” before the President rules on a Rule 19 dispute “is to stay the trial until the President has reviewed the decision of the Registrar.”¹⁸ While the Trial Chamber presumably retains its inherent power to ensure the fairness of a trial even in this context, it must allow the process contemplated by Rule 19 to run its course before taking up the question (if at all) as an independent judicial matter. The Registrar implicitly recognized this in its ultimate order, noting that it had independently determined that allowing Assigned Counsel to withdraw was not “in the interest of justice.”¹⁹ That said, in reviewing this request, I will of course consider even those arguments by Assigned Counsel that make reference to the Trial Chamber’s reasoning.

7. Assigned Counsel offer three distinct reasons that they should have been allowed to withdraw as counsel. First, they contend that Milosevic’s unwillingness to cooperate makes it impossible for them to function properly as his lawyer. Second, they argue that the Prosecution has conceded that the withdrawal should have been granted. Third, they point to an opinion by the ICTY Association of Defence Counsel suggesting that it would not breach Assigned Counsel’s professional obligations for them to withdraw from Milosevic’s representation. I will address each ground of appeal in turn.

Compatibility of Assigned Counsel’s professional obligations with their continued representation of Milosevic

8. Assigned Counsel rely heavily on the ICTY Code of Conduct²⁰ in contending that Milosevic’s unwillingness to cooperate makes it impossible for them to continue representing him. They cite a series of problems that they have faced since their appointment:

• On four separate occasions, Milosevic “criticised the conduct of the case by the Assigned Counsel” and “criticised Assigned Counsel’s performance” before witnesses in open court.²¹ All four instances occurred before the Appeals Chamber’s November 1 Decision.
• Milosevic once “asked [a witness] a confusing question in cross-examination, the clear aim of which was to raise doubts about Assigned Counsel’s professionalism and ability to put the Accused’s case accurately.”²² This occurred before the Appeals Chamber’s November 1 Decision.
• A Dutch lawyer acting on behalf of Milosevic filed a complaint against Steven Kay before the Disciplinary Board of the Dutch Bar.²³ This complaint was filed before the Appeals Chamber’s November 1 Decision.
• “Despite numerous attempts to meet with the Accused in order to obtain his instructions, the Accused has consistently refused to meet with Assigned Counsel and provide any instructions.”²⁴
• “[T]he accused has made a relationship of ‘candid exchange and trust’ impossible.”²⁵

In arguing that these problems make their continued representation of Milosevic intolerable, Assigned Counsel point in particular to Article 8 of the ICTY Code of Conduct, which stipulates that, when representing a client, counsel shall “abide by the client’s decisions concerning the objectives of representation”; “consult with the client about the means by which those objectives are to be pursued”; and “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, organization, or state.”²⁶ Counsel also cite more general provisions of Article 10 (counsel should “never be influenced in the matter of his representation,” should “preserve their own integrity and that of the legal profession as a whole,” and should “never permit their independence, integrity and standards to be compromised by external pressures”), Article 11 (counsel should “represent a client diligently and promptly in order to protect the client’s best interests ”), Article 12 (counsel should “keep a client informed about the status of a matter before the Tribunal”), and Article 14 (“Counsel owes a duty of loyalty to a client ”).

9. It is not immediately clear how these provisions, on their face, should apply to the unusual case of an attorney assigned by a Trial Chamber to a case over his client’s opposition. As the Trial Chamber properly observed, however, we are not required to interpret the Code in a vacuum. The Appeals Chamber has already decided that an accused’s refusal to cooperate with his lawyers does not require the Registrar to withdraw the assignment of counsel under Article 19(A). In Blagojevic, the accused stated that there was “a total breakdown in communication between his defence team and himself,” and that he would “‘never be in the position to cooperate with his current defence team.’”²⁷ He therefore challenged the Registrar’s refusal to withdraw the assignment of his defense team under Article 19(A) and to appoint new counsel. The Appeals Chamber rejected his challenge, noting that “the only obstacle [in Blagojevic’s representation ] is the resistance of the Appellant,” and endorsing the Trial Chamber’s finding that “an accused does not have the right to unilaterally destroy the trust between himself and his counsel.”²⁸ In no event, the Appeals Chamber found, does the accused have “the right to claim a breakdown in communication through unilateral actions, including refusals to meet with or receive documents from his counsel, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.”²⁹ In such circumstances, “where an Appellant unjustifiably resists legal representation from assigned Counsel, Counsel’s professional obligations to continue to represent the accused remain.”³⁰

10. The applicability of those principles to this case strike me as obvious: an accused cannot manufacture a reason for an Article 19(A) withdrawal by refusing to cooperate with his attorney. The fact that, unlike Blagojevic, Milosevic does not seek replacement counsel is a distinction without a difference. I therefore cannot conclude that the Registrar “erred in law in interpreting the Directive on the Assignment of Defence Counsel,” “failed to take into account relevant material,” or “reached a conclusion that no reasonable person could have reached.”³¹ Indeed, any other holding would have allowed Milosevic to render the Appeals Chamber’s November 1 Decision nugatory by the simple expedient of refusing to communicate or cooperate with any counsel who is assigned to him. For my part, I decline to allow Assigned Counsel to circumvent the Appeals Chamber’s clear ruling through a back door. The first ground of appeal is denied.

The Prosecution’s alleged concession that Assigned Counsel should be permitted to withdraw

11. Assigned Counsel also argue that the Prosecution has previously conceded that it is not necessary for them to continue representing Milosevic.³² Assigned Counsel cites a “skeleton argument” submitted by the Prosecution before a Trial Chamber hearing on 11 November 2004, in which the Prosecution stated that, because the Appeals Chamber’s November 2 Decision put Milosevic in the “driving seat,” “there is simply no need for Assigned Counsel to operate.”³³ In this regard, I first note that the Prosecution now quite clearly supports the denial of Assigned Counsel’s request to withdraw. In their response to Assigned Counsel’s Request for Review of Registrar’s Decision on Withdrawal, the Prosecution states that it has “at no stage [retreated] from the position that, in law, Assigned Counsel can be refused permission to withdraw,”³⁴ and now argues that it “may be held to have been correct to decide that Assigned Counsel’s withdrawal was not in the interests of justice.”³⁵ But even if the Prosecution joined with Assigned Counsel to oppose the Registrar’s decision, that would not decide the matter. As noted in the Appeals Chamber’s November 1 Decision, the Tribunal has its own distinct set of interests at stake in this case,³⁶ including first and foremost the interest in an outcome that is just, accurate, and reasonably expeditious. Any apparent concession by the Prosecution at an earlier stage of the proceedings thus fails to convince me that the Registrar’s decision was legally erroneous, procedurally improper, or objectively unreasonable. The second ground of appeal is denied.

Opinion issued by ICTY Association of Defence Counsel

12. Finally, Assigned Counsel contend that the Disciplinary Committee of the ICTY Association of Defense Counsel supports their request to withdraw on the grounds of irreconcilable conflict.³⁷ But this argument misses a crucial point about the ADC Advisory Opinion. Despite being asked whether Assigned Counsel “can ethically proceed under the ICTY Code of Conduct, by acting on [Milosevic’s ] behalf... without instructions,” the ADC Advisory Opinion actually answered a different question. It concluded only that “there are grounds to assert that an irreconcilable conflict exists between Mr. Kay and Mr. Milosevic such that the request to withdraw is... fully consistent with the ethical obligations imposed on counsel.”³⁸ At most, the ADC Advisory Opinion stands for the proposition that “by withdrawing from this case, Mr. Kay would not be in breach of the Code of Professional Conduct.” At no point does the opinion suggest that Assigned Counsel would be in breach of the Code if they fail to withdraw. Under the circumstances, the ADC Advisory Opinion fails to convince me that the Registrar’s decision was legally erroneous, procedurally improper, or objectively unreasonable.

13. Representing criminal defendants is not an easy task. Assigned Counsel would do well to recognize that fact, to realize the breadth of activities that they can carry out even in the absence of Milosevic’s cooperation, and to continue making the best professional efforts on his behalf that are possible under the circumstances. I affirm the Registrar’s decision and deny Assigned Counsel’s request.

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

Dated this 7th day of February 2005,
At The Hague,
The Netherlands.

_____________________
Judge Theodor Meron
President

[Seal of the International Tribunal]