IN THE TRIAL CHAMBER
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Anthony Hunt
Judge Fausto Pocar
Mrs. Dorothee de Sampayo Garrido-Nijgh
14 March 2000
DECISION ON THE REQUEST OF THE ACCUSED RADOMIR KOVAC
TO ALLOW MR. MILAN VUJIN TO APPEAR AS CO-COUNSEL ACTING PRO BONO
Office of the Prosecutor:
Mr. Dirk Ryneveld
Ms. Peggy Kuo
Ms. Hildegard Uertz-Retzlaff
Counsel for the Accused:
Mr. Slavisa Prodanovic for the accused Dragoljub Kunarac
Mr. Momir Kolesar for the accused Radomir Kovac
Mr. Goran Jovanovic for the accused Zoran Vukovic
1. This Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia ("Tribunal") has been seised of a request by Mr. Momir Kolesar, defence counsel for the accused Radomir Kovac, of 11 March 2000, that Mr. Milan Vujin be allowed to act as pro bono co-counsel on his defence team. Although Mr. Momir Kolesar in his request used the word "assignment", from the context and the use of the expression "voluntary co-counsel" it is clear that he did not intend to request an assignment under the Directive on the Assignment of Defence Counsel, but asked that Mr. Milan Vujin be granted the right of audience before the Trial Chamber. He had already indicated this intention in the pre-trial conference before the Trial Chamber on 2 March 2000.
2. The request was initially addressed to the Registrar, who decided she had no jurisdiction to entertain it, of which she informed Mr. Momir Kolesar by letter of 13 March 2000, and on the same date referred it to the Trial Chamber for further adjudication.
3. Mr. Milan Vujin, former defence counsel for Dusko Tadic, was found guilty of contempt of the Tribunal by a judgment of the Appeals Chamber of the Tribunal of 31 January 20001. The charges underlying the finding were summarised by the Appeals Chamber as follows2:
"The Appeals Chamber has thus found:
(1) that the Respondent Sscil. Milan VujinC put forward to it in support of the Rule 115 application a case which was known to him to be false in relation to the weight to be given to statements made by Mladjo Radic and in relation to the responsibility of Goran Borovnica for the killing of the two Muslim policemen, and
(2) that the Respondent manipulated Witnesses A and B by seeking to avoid any identification by them in statements of their evidence of persons who may have been responsible for the crimes for which Tadic had been convicted."
4. The Appeals Chamber, as part of the punishment, also directed the Registrar to examine the option of striking Mr. Milan Vujin from the Registrys list of defence counsel eligible for assignment, according to Rule 45 of the Rules of Procedure and Evidence3.
5. Mr. Milan Vujin has appealed the judgment and his appeal is currently under review by a bench of three judges of the Appeals Chamber.4
6. Because of the proceedings preceding the Appeals Chambers judgment and the pending appeal, the Registrar has refused to assign Mr. Milan Vujin to the accused Radomir Kovac under the Tribunals Directive for the Assignment of Defence Counsel. A decision on striking Mr. Milan Vujin from the list of defence counsel under Rule 45 (A) of the Rules of Procedure and Evidence has not yet been taken by her, on account of the pending appeal against the contempt finding.
7. The Trial Chamber acknowledges the fact that the present situation is not expressly provided for under the Rules of Procedure and Evidence, nor under any other provision of the Tribunals law. It accepts the Registrars contention that she has no jurisdiction to entertain the request, because Mr. Milan Vujin is not to appear as assigned counsel, but as privately retained counsel acting pro bono. Thus only the general requirements of Rule 44 (A) of the Rules of Procedure and Evidence apply, which Mr. Milan Vujin fulfils on the basis that he was previously included in the list referred to under Rule 45 (A) of the Rules of Procedure and Evidence, which in turn refers to Rule 44 (A).
8. The Trial Chamber considers Rule 46 of the Rules of Procedure and Evidence to be inapplicable to the case before it. Rule 46 is meant to deal with questions of courtroom decorum or other behaviour in the course of the proceedings, that makes it necessary to ensure that counsel has no platform in the hearings to continue his disruptive conduct. Mr. Milan Vujin has not yet appeared before this Trial Chamber and cannot therefore be said to have in any way obstructed the proceedings.
9. However, the jurisprudence of the Tribunal has long accepted that the Chambers possess an inherent power to control the proceedings in such a way as to ensure that justice is done and to deal with conduct which interferes with the Tribunals administration of justice. The Appeals Chamber recently stated in the very case of Mr. Milan Vujin5:
"There is no mention in the Tribunals Statute of its power to deal with contempt. The Tribunal does, however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded. As an international criminal court, the Tribunal must therefore possess the inherent power to deal with conduct which interferes with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law.
There is no specific customary international law directly applicable to this issue. There is an international analogue available, by way of conventional international law, in the Charter of the International Military Tribunal which gave to that tribunal the power to deal summarily with "any contumacy" by "imposing appropriate punishment ". Although no contempt matter arose before the International Military Tribunal itself , three contempt matters were dealt with by United States Military Tribunals sitting in Nürnberg in accordance with the Allied Control Council Law No 10 (20 December 1945), whereby war crimes trials were heard by the four Allied Powers in their respective zones of occupation in Germany. That Law incorporated the Charter of the International Military Tribunal. The US Military Tribunals interpreted their powers as including the power to punish contempt of court.
It is otherwise of assistance to look to the general principles of law common to the major legal systems of the world, as developed and refined (where applicable) in international jurisprudence. Historically, the law of contempt originated as, and has remained, a creature of the common law. The general concept of contempt is said to be unknown to the civil law, but many civil law systems have legislated to provide offences which produce a similar result.
Care must be taken not to treat the considerable amount of elaboration which has occurred in relation to Rule 77 as if it has produced a statutory form of offence enacted by the judges of the Tribunal, Article 15 of the Tribunals Statute gives power to the judges to adopt only [ ] rules of procedure and evidence .That power does not permit rules to be adopted which constitute new offences , but it does permit the judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction. As stated earlier, the content of these inherent powers may be discerned by reference to the usual sources of international law, but not by reference to the wording of the rule."
10. In its Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 19976 of 29 October 1997, the Appeals Chamber had already addressed the problem of the Tribunals inherent powers of enforcing its mandate with respect to the power under Article 29 of its Statute.
" the International Tribunal is endowed with the inherent power to make a judicial finding concerning a States failure to observe the provisions of the Statute or the Rules. The power to make this judicial finding is an inherent power: the International Tribunal must possess the power to make all those judicial determinations that are necessary for the exercise of its primary jurisdiction. This inherent power inures to the benefit of the International Tribunal in order that its basic judicial function may be fully discharged and its judicial role safeguarded. The International Tribunals power to report to the Security Council is derived from the relationship between the two institutions. The Security Council established the International Tribunal pursuant to Chapter VII of the United Nations Charter .. A logical corollary of this is that any time a State fails to fulfil its obligation under Article 29, . the International Tribunal is entitled to report this non-observance to the Security Council. In the above-mentioned scenarios, the attitude of the State or Entity may jeopardise the discharge of the International Tribunals fundamental functions. It is therefore to be assumed that an inherent power to address itself directly to those individuals inures to the advantage of the International Tribunal. Were it not vested with such a power, the International Tribunal would be unable to guarantee a fair trial to persons accused of atrocities in the former Yugoslavia. "7
11. The Appeals Chamber re-stated the position taken in the Blaskic decision in the judgement of 15 July 19998 concerning the appeals of the Prosecutor and Dusko Tadic, referring to the specific judicial nature of the inherent power:
"The power of a Trial Chamber to order the disclosure of a prior Defence witness statement relates to an evidentiary question. Also, since the Statute and the Rules do not expressly cover the problem at hand, the broad powers conferred by Sub-rule 89(B) may come into play Rather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international. In other words, this is one of those powers mentioned by the Appeals Chamber in the Blaskic (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice."9
12. The issue arose again when Trial Chamber III had to decide whether employees of the ICRC could be forced to testify before the Tribunal. Whilst the majority answered the question in the negative on the basis of an international customary privilege, Judge Hunt10 relied on a balancing of the interests involved, referring also to the inherent power of the Tribunal:
"It is the fundamental obligation of this Tribunal, imposed by Articles 20 and 21 of its Statute, to ensure the fair and expeditious trial of those indicted before it. The Tribunal also has an inherent power, deriving from its judicial function, to control its proceedings in such a way as to ensure that justice is done."
13. Although none of the express provisions of the Tribunals law apply, the Trial Chamber is of the opinion that the inherent power now long recognised by the Chambers is a sufficient foundation on which to proceed in this matter. The Trial Chamber considers the inherent power by necessity to include the power to refuse audience to counsel, notwithstanding that he may be otherwise qualified under Rule 44 (A) of the Rules of Procedure and Evidence, but who is for other reasons not a fit and proper person to appear before the Tribunal.
14. This is the case with Mr. Milan Vujin: In his capacity as counsel for the accused Dusko Tadic he interfered with the orderly and lawful conduct of the proceedings before the Tribunal. He did this in a manner that was grossly unacceptable with respect to his function as an attorney and his duties under the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal. His case is not that of an isolated event of misconduct during the course of a trial which may be sufficiently sanctioned by a mere warning or admonition, or even a fine, but it reveals an underlying attitude of utter disrespect for his professional duties towards his clients and the Tribunal. His conduct seriously undermined the search for the truth, an important obligation in the administration of justice.
15. As counsel before the Tribunal, Mr. Milan Vujin according to Rule 44 (B) of the Rules of Procedure and Evidence was subject to the relevant provisions of the Statute, the Rules of Procedure and Evidence, the Rules of Detention and any other rules and regulations adopted by the Tribunal, the Host Country Agreement, the Code of Conduct and the codes of practice and ethics governing the legal profession and, insofar as it was applicable, the Directive on the Assignment of Defence Counsel.
16. No. 4 of the Preamble to the Code of Conduct warns counsel that they should be aware of their rights and obligations towards the Tribunal. Article 5 (a) of the Code of Conduct requires counsel to act with honesty and loyalty. Article 12 (1) of the Code of Conduct states that counsel must at all times have due regard to the fair conduct of the proceedings. Article 13 (2) prohibits counsel from knowingly making an incorrect statement of fact to the Tribunal or offering evidence which counsel knows to be incorrect. Article 14 of the Code of Conduct compels counsel to maintain the integrity of the evidence, and under the Codes Article 15 (1) counsel must ensure that their behaviour does not bring the proceedings before the Tribunal into disrepute. Article 20 (c) and (d) of the Code, finally, state that it is professional misconduct for counsel to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or to engage in conduct which is prejudicial to the proper administration of justice before the Tribunal.
17. Mr. Milan Vujin flagrantly flaunted the above-mentioned obligations, he was found guilty of contempt of the Tribunal and is therefore no longer fit to appear before the Tribunal; consequently he cannot be given the right of audience by the Trial Chamber.
18. This decision applies regardless of Mr. Milan Vujins pending appeal against the judgment of the Appeals Chamber. The Trial Chamber would be failing in its duty to protect the interests of the accused Radomir Kovac if it allowed Mr. Milan Vujin to appear before the Trial Chamber.
19. This matter may be revisited in the event of an acquittal of Mr. Milan Vujin of the contempt charges on appeal.
20. The Trial Chamber therefore
Mr. Milan Vujin the right of audience in the case against the accused Radomir Kovac before this Trial Chamber.
Done in both English and French, the English version being authoritative.
Dated this fourteenth day of March 2000,
At The Hague,
[Seal of the Tribunal]
1. Judgment on Allegations of Contempt Against Prior
Counsel, Milan Vujin, Case No. IT-94-1-A-R77.
2. Ibid., at para. 160.
3. Ibid. at para.174.
4. Order of the President Assigning a Bench of the Appeals Chamber of 8 March 2000, Case No IT-94-1-A-R77.
5. Ibid., at paras. 13 29 (Footnotes omitted). See also the Appeals Chambers Order on the Motion to Withdraw as Counsel Due to Conflict of Interest, Case No. IT-96-21-A, Prosecutor v. Zejnil Delalic et al., of 24 June 1999, at p. 3, and Order on Esad Landzos Motion for Expedited Consideration, Case No. IT-96-21-A, Prosecutor v. Zejnil Delalic, of 15 September 1999, at p. 2.
6. IT-95-14-AR108bis at paras. 25 et seq., 33 et seq., 59 et seq. and footnote 27.
7. In footnote 27 to that decision, the Appeals Chamber explained the use of the concept of inherent powers:
"Consonant with the case-law of the International Court of Justice, the Appeals Chamber prefers to speak of "inherent powers" with regard to those functions of the International Tribunal which are judicidal in nature and not expressly provided for in the Statute, rather than to "implied powers". The "implied powers" doctrine has normally been applied in the case-law of the World Court with a view to expanding the competencies of political organs of international organisations. Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded."
8. IT-94-1-A at paras. 320 et seq.
9. At paras. 321 322.
10. IT-95-9-PT, Separate Opinion of Judge David Hunt on Prosecutors Motion for a Ruling Concerning the Testimony of a Witness of 27 July 1999, at para. 25.