IN TRIAL CHAMBER II
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Hunt
Judge Fausto Pocar
Mrs Dorothee de Sampayo Garrido-Nijgh
24 March 2000
Dragoljub KUNARAC, Radomir KOVAC and Zoran VUKOVIC
SEPARATE OPINION OF JUDGE DAVID HUNT
ON REQUEST BY RADOMIR KOVAC TO ALLOW MILAN VUJIN TO APPEAR
AS COUNSEL ACTING WITHOUT PAYMENT BY THE TRIBUNAL
The Office of the Prosecutor:
Mr Dirk Ryneveld
Ms Peggy Kuo
Ms Hildegarde Uertz-Retzlaff
Counsel for the Accused:
Mr Slavia Prodanovic and Ms MaraPilipovic for Dragoljub Kunarac
1. On 14 March 2000, the Trial Chamber gave its decision on the request by the accused Radomir Kovac (Kovac) to allow Mr Milan Vujin to appear as counsel for him without payment by the Tribunal; it denied Mr Vujin the right of audience in this case ("Trial Chamber Decision"). I agreed with that ruling. However, the reasons which were expressed in the Trial Chamber Decision for that ruling do not adequately reflect my reasons for doing so. As the circumstances of urgency in which the decision was given did not permit me to express my reasons separately at the time, I do so now.
2. Kovac made an application to the Registrar last year for the assignment of Mr Vujin as his counsel. Mr Vujin was at that time appearing before the Appeals Chamber on a charge of contempt of the Tribunal in relation to acts alleged to have been done by him as counsel for another accused person before the Tribunal. The application by Kovac was refused by the Registrar upon the basis that
[ ] the interests of justice do not permit the assignment of a counsel as long as he is charged with contempt of the Tribunal.1
3. On 31 January, Mr Vujin was found guilty of contempt by the Appeals Chamber, in that he had put forward to that Chamber a case which he knew to be false and that he had manipulated witnesses.2 That conduct, the Appeals Chamber said, had operated against the interests of Mr Vujins own client.3 The Appeals Chamber directed the Registrar to consider striking Mr Vujin off the list of assigned counsel and reporting his conduct to the professional body to which he belongs.4 It determined the punishment which it imposed (a fine of Dfl 15,000) upon the basis that the Registrar, in the reasonable exercise of her powers, would necessarily strike him off that list and report his conduct.5 On 5 February, Mr Vujin sought leave to appeal against the judgment of the Appeals Chamber. The Registrar has accordingly taken no steps to carry out the direction of the Appeals Chamber pending any appeal.
4. At the Pre-Trial Conference held on 2 March, the Trial Chamber was informed by Mr Kolesar (counsel assigned to Kovac) that, in the event that Mr Vujin were permitted to appear as co-counsel for Kovac on a voluntary basis (that is, not paid by the Tribunal), he (Mr Vujin) would withdraw his appeal against his conviction for contempt and pay the fine imposed.6 The Trial Chamber explained to Mr Kolesar at that time that, as Mr Vujin had been found guilty of contempt, he could not be assigned as counsel even if he did withdraw his appeal, and it was suggested that Mr Kolesar should explain to his client that he would have to select some-one else to be assigned as his co-counsel.7
5. On 11 March, Mr Kolesar made an urgent application to the Registrar on behalf of Kovac for the assignment" of Mr Vujin as "the voluntarily [sic] co-counsel".8 On 13 March, the Registrar replied that her office was "responsible for assignments of counsel under legal aid", and that other representation was for the Trial Chamber, not her office, to determine. She added that, in view of Mr Vujins status as a person convicted of serious contempt of the Tribunal, and notwithstanding his appeal, she was not in a position to endorse the inclusion of Mr Vujin in the defence team for Kovac.9 She thereupon referred the request to the Trial Chamber for its determination.
6. The jurisdiction of a Trial Chamber to determine whether, in circumstances such as these, particular counsel otherwise qualified to appear before the Tribunal should nevertheless be refused audience to appear for an accused person even without assignment by the Registrar is not stated expressly in either the Statute or the Rules of Procedure and Evidence of the Tribunal. Article 21.4(d) of the Statute provides that an accused person has the right to defend himself through legal assistance of his own choosing and to have legal assistance assigned to him in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it. Rule 44 of the Rules ("Appointment, Qualifications and Duties of Counsel") provides that counsel shall be considered qualified to represent an accused person if that counsel satisfies the Registrar that he or she is admitted to the practice of law in a State, or is a University professor of law. Rule 45 ("Assignment of Counsel") provides for the assignment of qualified counsel to indigent accused persons. Rule 46 ("Misconduct of Counsel") permits a Trial Chamber to refuse audience to counsel if, in its opinion, the conduct of counsel is offensive, abusive or otherwise obstructs the proper conduct of the proceedings.
7. None of these provisions is relevant here. Mr Vujin is qualified in accordance with Rule 44. He has not yet appeared in these proceedings before the Trial Chamber in order for Rule 46 to apply. Nor is there any express reference in any of the formal documents issued by the Tribunal concerning counsel who appear before it to the jurisdiction of a Trial Chamber to determine whether counsel should be refused audience to appear for an accused person even without assignment.10
8. 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 the Tribunals Statute is not frustrated and that its basic judicial functions are safeguarded.11 As an international criminal court, the Tribunal therefore possesses the inherent power to deal with conduct which interferes with its administration of justice.12 I am satisfied that such an inherent power includes the power to refuse audience to counsel notwithstanding that he may be otherwise qualified to appear in accordance with Rule 44, and notwithstanding that he is the counsel chosen by the accused who is not a fit and proper person to appear before the Tribunal.
9. The pending application by Mr Vujin for leave to appeal against the finding of the Appeals Chamber is irrelevant for present purposes, as at this stage he is to be treated as guilty of the conduct found by the Appeals Chamber. Of course, in the event that those findings in relation to his conduct are reversed on appeal, his right of audience would have to be reconsidered. But it would be inappropriate to allow him to appear for Kovac in the meantime only because of the possibility that he may be successful on appeal.
10. Nor may the fact that Mr Vujin is counsel chosen by Kovac be given any particular weight in these circumstances. The right given to him by the Statute to legal assistance of his own choosing must necessarily be understood as being subject to the fitness of the counsel so chosen to appear before the Tribunal. That necessarily follows from the Tribunals inherent power to deal with conduct which interferes with its administration of justice. That inherent power provides the basis, for example, for Rule 46.
11. I am satisfied that Mr Vujin, in the light of his conduct as found by the Appeals Chamber, is not a fit and proper person to appear as counsel before the Tribunal. The Appeals Chamber by proceeding to impose punishment for that contempt upon the basis that the Registrar, in the reasonable exercise of her power, would necessarily strike Mr Vujin off the list of counsel who may be assigned to appear for accused persons made it clear that such was its opinion also. It described his conduct as professional misconduct,13 and as striking at the very heart of the criminal justice system.14 The contempt was therefore regarded as serious.15 I agree with all of those descriptions. I also agree with the description of Mr Vujins conduct in the Trial Chambers Decision as revealing "an underlying attitude of utter disrespect for his professional duties towards his clients and the Tribunal" and as having "seriously undermined the search for truth" (which is the Tribunals obligation).16
12. In all those circumstances, the Trial Chamber should deny Mr Vujin the right of audience to appear for Radomir Kovac in these proceedings.
Done in English and French, the English text being authoritative.
Dated this 24th day of March 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]