THE PRESIDENT OF THE TRIBUNAL
Judge Theodor Meron, President
Mr Hans Holthuis
21 October 2003
DECISION ON ASSIGNMENT OF DEFENCE COUNSEL
Mr Isak Musliu
Mr Klaus W Kirchner
Mr Klaus W Kirchner seeks to appeal against the decision of the Registrar removing him from the list of Counsel under Rule 45(B) of the Rules of Procedure of Evidence and the refusal of the Registrar to assign him as lead counsel to the accused, Isak Musliu. The Registrar made the decision to remove Mr Kirchner from the list of Rule 45(B) Counsel on the ground that he did not satisfy the language requirements of Article 14(A) of the Directive on the Assignment of Defence Counsel ("Directive") and Rule 44(A).
2. Rule 44(A) requires Counsel to speak one of the two working languages of the Tribunal as a pre-condition to inclusion on the list of Counsel under Rule 45(B). The requirement that Counsel speak one of the two working languages of the Tribunal is also stipulated in Article 14(A) of the Directive, which lists the qualifications of Counsel to be included on the Rule 44(B) list. Both Article 14 and Rule 44(B) state exceptions to the language requirement. Article 14(A)(iii) provides an exception where the interests of justice so require. Similarly, Rule 44(B) permits the Registrar to admit a counsel who does not speak either of the two working languages of the Tribunal, but who speaks the native language of the suspect or the accused, where the interests of justice so demand. Practice Directions must be read consistently with the Rules; as such, the interests of justice requirement of Article 14(A) could not be satisfied in any case where Counsel did not speak the native language of the accused.
3. Mr Kirchner had been included on the list of Rule 45(B) Counsel upon representations made by him to the Registry that he satisfied the language requirements. However, based upon Mr Kirchnerís later communications with the Registry staff, the Registrar determined that he was not sufficiently proficient to satisfy those requirements and removed him pursuant to Article 14(C) as he is obligated to do under that Article.
4. Article 14 of the Directive does not grant Counsel a right of appeal to the President from a decision of the Registrar to remove Counsel from the list where the basis of the removal is the Counselís failure to satisfy the requirements of Article 14(A). There is a right of appeal to the President under Rule 44(B), but that Rule requires Counsel who is not proficient in the two working languages of the Tribunal to speak the language of the accused if an assignment is to be made in the interests of justice. Counsel in this case does not speak the language of the accused. To the extent that the Appellant appeals under Rule 44(B), his appeal must be refused as he does not meet a requirement to be satisfied by that Rule in lieu of the language requirement.
5. Mr Kirchner objects also to the Registrarís refusal to recognise the power of attorney purportedly conferred upon him by the accused Mr Musliu. The basis of the Registrarís refusal was that he could not be satisfied that Mr Musliuís handwritten request in English for Mr Kirchner to be assigned as his lead counsel had been explained to the accused in a language that he understood. Following that refusal, and after the filing of this appeal, Mr Musliu notified the Registry, on 6 October, that he wishes to have Mr Kirchner appointed as his lead counsel. The Registry responded to that request on 13 October, advising Mr Musliu that Mr Kirchner had been removed from the list of Counsel and that Mr Kirchnerís appeal against the decision is currently pending before the President. In these circumstances, the refusal of the Registrar to recognise the power of attorney filed by Counsel is now moot. Further, once removed from the Rule 45(B) list for failing to satisfy the language requirements, the Registrarís refusal to assign Mr Kirchner under Rule 45(C) on the request of Musliu was correct, as the Registrar has already determined that Counsel does not satisfy the requirements of Rule 44.
6. Having determined that Counsel has no right of appeal to the President under Article 14 of the Directive against the decision of the Registrar to remove him from the Rule 45(B) list for failure to satisfy the language requirements, and that an appeal pursuant to Rule 44 (B) must fail as Counsel does not speak the language of the accused, the appeal is dismissed.
7. Although I have determined that the appeal of Counsel must fail I have some concerns, on the basis of the material submitted to me by the Registry and by Counsel, that the Registrarís decision to remove Counsel from the Rule 45(B) list was made without Counsel being accorded the opportunity to be heard prior to that decision being taken. Subsequent to the decision under review, representations were made to the Registry by Co-Counsel assigned to the accused, Mr Powles, who is a native English speaker, that Counsel is, in fact, proficient in that language. Counsel has also sent letters to the Registry regarding evidence of his proficiency in the English language. If Counsel can in fact establish to the satisfaction of the Registrar that he does meet the language requirements to be included on the Rule 45(B) list of Counsel, the proper course for him to follow is to provide the necessary evidence establishing this fact to the Registrar and request the Registrar consider his request based on the supporting evidence supplied by him.
Dated this 21st day of October 2003,
At The Hague,
Judge Theodor Meron
[Seal of the Tribunal]