Case No. IT-03-66-PT

The Prosecutor v. Haradin Bala




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 (hereinafter "the Rules"), 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 (hereinafter "the Directive"), as adopted by the Tribunal on 28 July 1994, as subsequently amended, and in particular, Articles 6, 7, 8, 10 and 11(A) (i) thereof;

CONSIDERING the Code of Professional Conduct for Counsel Appearing Before the International Tribunal (IT/ 125 REV.1) (hereinafter "the Code of Conduct"), and in particular Articles 9 and 13 thereof;

NOTING the Decisions of the Deputy Registrar of 11 December 2003 and of 12 March 2004, assigning Mr. Peter Murphy, attorney at law from Texas, and Mr. Gregor Guy-Smith, attorney at law from California, respectively as lead and co-counsel to Mr. Haradin Bala (hereinafter "the Accused");

CONSIDERING that Mr. Murphy notified the Registry by letter dated 20 January 2004 that he was required to return to his full-time teaching obligations at the South Texas College of Law;

NOTING further that the Registry received a letter by the Dean of the said College of Law confirming Mr. Murphy’s statement and explaining the reasons for the Dean’s decision;

CONSIDERING that Mr. Murphy expressed a concern that, in the circumstances, he would be unable to continue representing the Accused adequately and requested to be withdrawn as lead counsel;

CONSIDERING that the Registry advised Mr. Murphy that he could be withdrawn from the case only if the Registry was satisfied that the right of the Accused to a full and effective legal representation would not be jeopardized;

CONSIDERING that on 7 May 2004, Mr. Murphy and Mr. Guy-Smith reported to the Registry that in a meeting with the Accused the previous day, the issue of Mr. Murphy’s withdrawal had been thoroughly discussed with the Accused, who accepted Mr. Murphy’s withdrawal and agreed that Mr. Guy-Smith would continue to represent him as lead counsel;

CONSIDERING that, in order to approve Mr. Murphy’s replacement as lead counsel by Mr. Guy-Smith, the Registry requested that a detailed work plan be submitted, outlining the specific tasks to be accomplished by each counsel and the time framework in which this would be done so that the interests of the Accused are not adversely affected as a result of Mr. Murphy’s withdrawal;

CONSIDERING that on 10 May 2004, Mr. Murphy submitted a letter in which he stated that a great deal of the work necessary to prepare the case for trial had already been accomplished, including the analysis of the Prosecution’s witnesses, and pointed out the specific tasks remaining to be accomplished during the pre-trial stage by himself, Mr. Guy-Smith and their assigned legal consultant;

NOTING further that in the same letter Mr. Murphy stated explicitly that he would be available to assist the defence team throughout the summer, and to participate in detailed pre-trial preparation immediately in advance of trial;

CONSIDERING that the Registry was satisfied with the work plan and the details presented therein, and therefore agreed to withdraw Mr. Murphy’s assignment as counsel to the Accused;

CONSIDERING, however, that in a telephone conversation a few days later, the Accused informed the Registry that he had never consented to Mr. Murphy’s withdrawal;

CONSIDERING that a representative of the Registry met with the Accused on 26 May 2004 in an effort to clarify the matter;

CONSIDERING that in this meeting, the Accused changed his position and unexpectedly expressed dissatisfaction with the work performed by Mr. Murphy in his case, and requested that a lawyer by the name of Richard Harvey be assigned as his lead counsel;

CONSIDERING the competence and effort that both Mr. Murphy and Mr. Guy-Smith have demonstrated in the preparation of the defence of the Accused, and the fact that the Accused had never indicated any dissatisfaction with the work of either one of them before, the Registry has no reason to believe that the concerns expressed by the Accused were legitimate;

CONSIDERING, further that Mr. Harvey is not a member of the Association of Defense Counsel as prescribed by Rule 44 (A) of the Rules nor is he currently on the Rule 45 list of counsel eligible for assignment to accused lacking the means to remunerate counsel;

NOTING that pursuant to Rule 45 (C), in particular circumstances, upon the request of a person lacking the means to remunerate counsel, the Registrar may assign counsel whose name does not appear on the list but who otherwise fulfils the requirements of Rule 44;

CONSIDERING that the Accused has not indicated any specific reasons for the assignment of a lawyer whose name is not on the Rule 45 list, except for the fact that Mr. Harvey was recommended to him "by a friend" who had provided him with Mr. Harvey’s curriculum vitae;

CONSIDERING further that, while inquiring into the request of the Accused, the Registry has discovered that Mr. Harvey works at the same law firm as the lead counsel for Mr. Limaj and Mr. Musliu, co-accused to the Accused in this case;

CONSIDERING that the defense strategies adopted by the three co-accused as outlined in their pre-trial briefs are such that they may give rise to a conflict of interest between the Accused and his two co-accused at a later stage of the proceedings;

CONSIDERING Article 14 (D) (i) of the Code of Conduct, according to which counsel or his firm shall not represent a client if such representation will be, or may reasonably be expected to be, adversely affected by representation of another client;

CONSIDERING that under these circumstances, and in the absence of any compelling reasons for the assignment of Mr. Harvey, an exception to Rule 45 of the Rules is not justified, although Mr. Harvey otherwise fulfills the qualification requirements set forth in Rule 44 of the Rules;

CONSIDERING that the right to free legal assistance does not confer the right to counsel of one’s own choosing and that, therefore, the indigent accused do not have an absolute right to choose counsel;

CONSIDERING that the Registry is fully satisfied with the quality of the work performed by Mr. Guy-Smith;

CONSIDERING further that Mr. Guy-Smith has been actively involved in the preparation of the defence of the Accused so far and is, therefore, fully acquainted with the case which, in view of the imminent trial, is an important guarantee that no extensions of time will be required on the ground that counsel needs to familiarize himself with the case;

CONSIDERING the assurances given by Mr. Guy-Smith to the Registry that he is fully prepared to take over the defence of the Accused as lead counsel;

CONSIDERING that from the day of Mr. Murphy’s request for withdrawal to the day of this decision, both lead and co-counsel continued to actively work on the preparation of the defence of the Accused, as evidenced by the filing of the Accused’s pre-trial brief and Mr. Guy-Smith’s work with the defence investigators in Kosovo;

CONSIDERING that, based on the Declaration of Means of the Accused submitted pursuant to Article 7 (B) of the Directive and the Registry inquiry pursuant to Article 10 of the Directive, the Registry has determined that the Accused does not have sufficient means to remunerate counsel;

HEREBY DECIDES to withdraw the assignment of Mr. Peter Murphy and to assign Mr. Gregor Guy-Smith as lead counsel to the Accused as of the date of this Decision.


David Tolbert,
Deputy Registrar

Dated this seventh day of July 2004
At The Hague
The Netherlands