Case No. IT-01-48-PT

Prosecutor v. Sefer Halilovic

DECISION

THE REGISTRAR,

CONSIDERING the Statute of the Tribunal as adopted by the Security Council under Resolution 827 (1993), and in particular Article 21 thereof;

CONSIDERING the Rules of Procedure and Evidence as adopted by the Tribunal on 11 February 1994, as subsequently amended, and in particular Rules 44 and 45 thereof;

CONSIDERING the Directive on Assignment of Defence Counsel, as adopted by the Tribunal on 28 July 1994, as subsequently amended, and in particular Articles 11 (a) (iii) and 19 (A) (i) thereof;

CONSIDERING that on 5 March 2004, the Accused requested the withdrawal of lead counsel, Mr Stefan Kirsch, citing a breakdown in communication;

CONSIDERING that in an attempt to reconcile the working relationship between Mr Kirsch and the Accused, the Registry advised Mr Kirsch on 10 March 2004, to resume communication with the Accused;

CONSIDERING that on 22 March 2004, the Registry refused to grant the request of the Accused to withdraw lead counsel, on the basis that Mr Kirsch and his co-counsel, Mr Guenaël Mettraux, were fully capable of representing the Accused in a satisfactory manner;

CONSIDERING that since no reconciliation was reached between Mr Kirsch and the Accused, the Registry appointed Independent Counsel, Mr Karim Khan on 25 March 2004, to assist the Accused in filing an application for review of the Registry decision, pursuant to Article 19 (F) of the Directive;

CONSIDERING that in his application for review dated 23 April 2004, the Accused alleged that the Registrarís decision to reject the withdrawal of Mr Kirsch, including the procedure by which he reached his decision, was erroneous;

CONSIDERING that on 24 May 2004, the Registry filed a response in which it presented additional arguments in support of its decision not to withdraw Mr Kirsch, including the assignment of successive lead counsel in the case;

CONSIDERING further that on 21 June 2004, the President quashed the decision of the Registry and directed it to reconsider the request of the Accused de novo;

CONSIDERING that by letter dated 13 July 2004, the Registry informed the Accused that it accepted his request for withdrawal of Mr Kirsch and suggested three candidates for replacement of lead counsel;

CONSIDERING that on 14 July 2004, the Accused rejected the Registry suggestions, but requested the assignment of Mr Peter Morrissey, attorney at law from Melbourne, Australia;

NOTING that the right of an indigent accused to choose counsel is not an absolute right and that the Registrar has discretion to deny the request of an accused for a specific counsel appearing on the Rule 45 list of counsel eligible to be considered for an assignment of counsel;

CONSIDERING however that the Registrar has ascertained that there exist no conflict of interest or other impediments to the assignment of Mr Morrissey as lead counsel, and that Mr Morrissey is on the Rule 45 list of counsel who are eligible to be considered for an assignment of counsel;

CONSIDERING that on the basis of Article 19 (A) (i) of the Directive, the Registrar may withdraw the assignment of counsel at the request of an accused or his counsel if is in the interest of justice;

NOTING that in accordance with Article 9 (D) of the Code of Conduct, Mr Kirsch is obliged to surrender any papers and property to which the client or the Tribunal is entitled;

NOTING that in accordance with Article 13 (A) of the Code of Conduct, Mr Kirsch remains subject to a continuing duty of confidentiality of the client's affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client's detriment or to his own or another client's advantage;

FINDING that the Registrar is satisfied that the replacement of lead counsel will not occasion further delays and that the withdrawal of Mr Kirsch is in the interest of justice as per Article 19(A) (i);

DECIDES in light of the forgoing to withdraw Mr Stefan Kirsch and to assign Mr Peter Morrissey as lead counsel, effective as of the date of this decision.

_____________
Hans Holthuis
Registrar

Dated this Tenth day of August 2004
At The Hague
The Netherlands