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

Registrar:
Mr. Hans Holthuis

Decision of:
21st September 2005

The Office of the Prosecutor:

Mr Mark Harmon

Counsel for the Defence:

Mr Jonathan Cooper

TRIAL CHAMBER I (“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”);

BEING SEISED of the “Motion Seeking Review of the Decision of the Registry and Assignment of Virginia Lindsay as Co-Counsel” and its attached confidential annexes A to I filed by the Defence for the accused Bralo (“Defence” and “Accused ”) on 7 September 2005 pursuant to Article 21(4)(d) of the Tribunal’s Statute, Rules 44 and 45 of the Rules of Procedure and Evidence and Articles 13 and 14 of the Directive on Assignment of Defence Counsel (“Motion”);

NOTING that Article 21(4)(d) of the Statute provides in relevant part that an accused before this Tribunal is entitled to defend himself through legal assistance of his own choosing;

NOTING that Rules 44 and 45 of the Rules of Procedure and Evidence (“Rules ”) and Article 14 of the Directive on Assignment of Defence Counsel (“Directive”) provide for the appointment, qualifications, standing, duties and assignment of counsel;

NOTING that Article 13 of the Directive provides for a remedy against the Registrar’s decision in the form of a review by the Trial Chamber;

CONSIDERING that the Defence argues as a preliminary matter that issues of qualification, appointment and assignment of counsel rest within the primary competence of the Registrar but that such issues are open to judicial scrutiny where the fairness of the trial is at stake;¹

CONSIDERING that the Defence complains that the Registrar denied the appointment of Ms Lindsay as co-counsel in this case on the grounds that “the status of Ms Lindsay’s membership of the Rule 45 list of counsel eligible to practice before the Tribunal ?must beg established” (“Impugned Decision”);²

CONSIDERING that the Defence substantiates its complaint as follows:

(a) Counsel and Accused made clear and on reasoned grounds that they wished to have Ms Lindsay, who had worked satisfactorily as a legal consultant on this case, assigned as co-counsel;³

(b) Ms Lindsay is a member of the Rule 45 List of counsel as well as a member in good standing of the Association of Defence Counsel; ⁴

(c) Ms Lindsay was not suspended from practice under Rule 45 of the Code of Conduct nor have there been any complaints to trigger any form of disciplinary proceedings under the Tribunal’s Code of Conduct;⁵

(d) the Registry should have appointed Ms Lindsay as co-counsel or shown cause why she should not be so appointed;⁶

CONSIDERING that the sentencing hearing in this case is scheduled to commence on 10th October 2005; that the sentencing briefs in this case were scheduled to be submitted by 16th September 2005,⁷ then by 23rd September 2005⁸ and finally following a second request for extension of time by 30th September 2005⁹; that it is in the interests of justice that the Accused be properly represented prior to and during the sentencing hearing;

CONSIDERING that Article 16 (C) of the Directive states that the Registrar may assign a co-counsel at the request of the lead counsel and if it is in the interests of justice; that it ensues that the assignment of a co-counsel does not lie as of right but may be done if counsel shows that the interests of justice so require;

CONSIDERING that it appears from the correspondence between counsel and the Registry that the interests of justice in appointing of a second counsel to share the workload of counsel in preparing the case of the Accused is not being questioned ;¹⁰

CONSIDERING that only the status of Ms Lindsay as a member of the Rule 45 list of counsel is being questioned by the Registrar;

CONSIDERING that in accordance with Article 14 of the Directive Ms Lindsay is admitted to the list of counsel envisaged in Rule 45 of the Rules;¹¹

CONSIDERING that the reason provided by the Registrar to deny the assignment of Ms Lindsay as co-counsel, namely “until the status of Ms Lindsay’s membership of the Rule 45 list of counsel eligible to practice before the Tribunal is established ”, is insufficient because it fails to explain coherently the denial of the application for the appointment of Ms Lindsay as a co-counsel;

CONSIDERING that the Impugned Decision does not in any way expose the procedure and the criteria by which Ms Lindsay’s status on the Rule 45 list is being reconsidered by the Registrar;

CONSIDERING that the failure of the Registrar to provide sufficient reasons for the Impugned Decision mandates the Chamber to determine that the Impugned Decision was not reasonably adopted;

PURSUANT TO Rules 44, 45 and 54 of the Rules and Articles 13, 14 and 16 of the Directive,

HEREBY GRANTS the Motion and DIRECTS the Registrar to reconsider the issue.

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

Dated this twentifirst day of September 2005,
At The Hague,
The Netherlands.

____________________
Judge Liu Daqun
Presiding

[Seal of the Tribunal]