Case No. IT-04-83-PT


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

Hans Holthuis

Decision of:
2 June 2005







The Office of the Prosecutor:

Mr. Daryl Mundis
Ms. Tecla Henry-Benjamin
Ms. Marie Tuma

Counsel for the Accused:

Mr. Stéphane Bourgon


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 ("International Tribunal"),

BEING SEISED OF a "Defence Motion requesting certification of Trial Chamber Decision and Request for an interim measure" filed on 16 May 2005 by the Defence for the accused Rasim Delic (“Defence”) seeking certification to challenge the “Decision on Motion seeking review of the Registry Decision stating that Mr. Stéphane Bourgon cannot be assigned to represent Rasim Delic” issued by the Trial Chamber on 10 May 2005 ("Decision”), and requesting a stay of the Decision as well as the Registry Decision not to appoint Mr. Bourgon as counsel to the accused Delic, until the Appeals Chamber has decided on the matter (“Request for Certification”),

CONSIDERING that Rule 73(B) requires two criteria be satisfied before a Trial Chamber may certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and (2) an immediate resolution of the issue by the Appeals Chamber may, in the opinion of the Trial Chamber, materially advance the proceedings,

NOTING that the Defence arguments in favour of certification are that: (1) in Prlic,1 the Appeals Chamber recognised that a conflict of interests arising from dual representation by counsel would affect the fairness of the proceedings,2 and the issue at hand is directly related to "the fundamental right of the Accused to defend himself through legal assistance of his own choosing pursuant to Article 21 4) d) of the Statute as well as having a potential impact on the right of the Accused to be tried without undue delay in accordance with Article 21 4) c) of the Statute",3 and (2) "this is an issue which can only be resolved effectively at this time…[I]f it was determined by the Appeals Chamber after the trial, that there was in fact no conflict of interests preventing the Accused to be represented by his counsel of choice, it would be very difficult for the Appeals Chamber, if not impossible, to grant an effective remedy,4

NOTING the "Prosecution Response to the Defence Motion requesting certification of Trial Chamber Decision and Request for an interim Measure" filed by the Office of the Prosecutor on 20 May 2005, in which it opposes the Motion and requests the Trial Chamber to deny the Request for Certification,

NOTING the "Motion seeking permission to reply and Reply to Prosecution Response to the Defence Motion requesting certification of Trial Chamber Decision and Request for an interim measure" filed by the Defence on 24 May 2005 ("Request for leave to file a Reply"),

CONSIDERING that the Decision concerns the assignment of counsel to legally aided accused, the Registry initially determined the matter, and the Trial Chamber satisfied itself that the Registry Decision was consistent with the legal requirements of the Statute of the International Tribunal, and the Directive on Assignment of Counsel ("Directive"),

CONSIDERING that the Defence accepts that there is a prima facie conflict of interests5 in that counsel already represents the Accused’s direct subordinate in current proceedings before the Tribunal not due to conclude until October 2005,6

CONSIDERING FURTHER that (1) the Directive clearly provides that, where a potential conflict of interest exists, no counsel shall be assigned to more than one accused at a time,7 (2) the right to free legal assistance does not confer an absolute right to counsel of one’s own choosing,8 especially in circumstances where, as in this case, a conflict of interest affects counsel of choice,9 and (3) the Registrar has provided the Accused with an alternative list of counsel available to represent him, thus avoiding any conceivable conflict of interest arising from dual-representation,10

CONSIDERING therefore that the Applicant has not demonstrated that the issue involved in the Decision would "significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial",

CONSIDERING that, in light of the above finding, it is unnecessary for the Trial Chamber to consider whether "an immediate resolution of the issue by the Appeals Chamber may […] materially advance the proceedings",

PURSUANT TO Rules 73 (B) and 126bis of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY ORDERS as follows:

  1. the Request for leave to file a Reply is denied, and

  2. the Request for Certification is denied.


Judge Patrick Robinson

Dated this second day of June 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Request for Certification, para. 29; Prosecutor v. Prlic et al., “Decision on Appeal by Bruno Stojic Against Trial Chamber’s Decision on Request for Appointment of Counsel", Case No. IT-04-74-AR73.1, 24 November 2004 ("Prlic Appeals Chamber Decision on Counsel").
2. Ibid., para. 21.
3. Request for Certification, paras 29-30.
4. Ibid., paras 31-32.
5. See Motion Seeking Review of the Registry Decision that Mr. Stéphane Bourgon Cannot be Assigned to Represent Rasim Délic Pursuant to Article 16(E) of Directive on Assignment of Counsel and Request for Stay of the Decision of the Registry Inviting the Accused to Select New Counsel no Later than 27 April 2005, Case No. IT-04-83, 26 April 2005, para. 27.
6. Prosecutor v. Hadzihasanovic & Kubura, Case No. IT-01-47-T.
7. Article 16 (E) of the Directive provides: "No counsel shall be assigned to more than one suspect or accused at a time, unless: (i) Each accused has received independent legal advice from the Registrar and both have consented in writing; (ii) The assignment would neither cause prejudice to the defence of either accused, nor a potential conflict of interest."
8. Prosecutor v. Mejakic et al., “Decision on Appeal by the Prosecution to Resolve a Conflict of Interest Regarding Attorney Jovan Simic” Case No. IT-02-65-AR73.1, 6 October 2004, para. 8, citing Prosecutor v. Akayesu, "Appeals Chamber Judgement", Case No. ICTR-96-4A, 1 June 2001, para. 61.
9. Ibid.
10. Prlic Appeals Chamber Decision on Counsel, supra note 1, para. 21.